Understanding Canadian Law Three-Book Bundle. Daniel J. Baum
must be considered when assessing the impact of section 43 on a child’s sense of dignity. Yet, as emphasized, the force permitted is limited and must be set against the reality of a child’s mother or father being charged and pulled into the criminal justice system, with its attendant rupture of the family setting, or a teacher being detained pending bail, with the inevitable harm to the child’s crucial educative setting. Section 43 is not arbitrarily demeaning. It does not discriminate. Rather, it is firmly grounded in the actual needs and circumstances of children. I conclude that section 43 does not offend section 15(1) of the Charter.
On the point denying the application of section 15 of the Charter, Chief Justice McLachlin spoke for a majority of six. Justices Binnie and Deschamps dissented; they would have allowed children the protection of section 15. Justice Binnie would have permitted the conclusion reached by the Court majority, but only after the Crown demonstrated justification for the restraint. Justice Deschamps would have afforded children protection and she would have rejected the government’s claim of justification. Justice Arbour saw no need to deal with section 15. Her reason: section 43 offended section 7 of the Charter. We will briefly set out the reasoning of Justices Binnie and Deschamps.
Justice Binnie’s Partial Dissent on Section 43
Quoting the majority opinion, Justice Binnie said: “It may be that introducing the criminal law into children’s families and educational environments [in the context of section 43] would harm children more than help them.” But, he stated, this is a reason that goes toward justifying the action of government within the meaning of section 15 of the Charter. It does not speak to whether children are protected within the meaning of section 15.
Justice Binnie then addressed himself to whether corrective force by parents might be justified. He concluded, “To deny children the ability to have their parents, or persons standing in their parents’ place, to be successfully prosecuted for reasonable corrective force under the Criminal Code does not leave them without effective recourse. It just helps to keep the family out of the criminal courts. In my view, section 43 in relation to parents and persons standing in their place is justified on this basis.”
However, Justice Binnie could not find the same justification as applied to teachers. He wrote:
The question is whether the undoubted need to keep order in schools justifies the section 43 exemption of teachers from the assault provisions of the Criminal Code.
The Law Reform Commission of Canada recommended the repeal of the section 43 defence for school teachers, stating that the ultimate sanction should be the removal of a child from school, not corporal punishment: Law Reform Commission of Canada, Working Paper 38, Assault (1984), at p. 44. A number of countries have abolished or modified similar legislative immunities for teachers: see, e.g., section 47 of the British Education (No. 2) Act 1986 (U.K.), 1986, c. 61; section 59 of the New Zealand Crimes Act 1961 (N.Z.), 1961/43; and s. 139A of the New Zealand Education Act 1989 (N.Z.), 1989/80.
While I accept that order in the schools is a legitimate objective, I do not think that giving non-family members an immunity for the criminal assault of children “by way of correction” is a reasonable or proportionate legislative response to that problem. The attempt to save the constitutionality of section 43 by rewriting it to distinguish between parents and teachers and carving out school order from the more general subject matter of “correction” is, in my view, a job for Parliament. In short, section 43 does not minimally impair the child’s equality right, and is not a proportionate response to the problem of order in the schools.
The Dissent of Justice Deschamps
Justice Deschamps said that section 43 should be interpreted according to the intent of the Parliament at the time of the law’s enactment. As such, the constraints that the majority imposed on section 43 go too far. The Court majority, Justice Deschamps said, has inserted its views as to what the law should be rather than the clear intent of the Parliament. In this regard, she cited and approved the reasoning of Justice Arbour, which is set out (below) in “The Opinion of Justice Arbour.”
Justice Deschamps then proceeded to discuss the application of section 15 of the Charter to children, who, she said, have long been recognized as a vulnerable group in need of protection. She wrote:
Children as a group face pre-existing disadvantage in our society. They have been recognized as a vulnerable group time and again by legislatures and courts. Historically, their vulnerability was entrenched by the traditional legal treatment of children as the property or chattel of their parents or guardians. Fortunately, this attitude has changed in modern times with a recognition that children, as individuals, have rights, including the right to have their security and safety protected by their parents, families and society at large. This recognition is illustrated by several decisions of this Court (see, e.g., B. (R.) v. Children’s Aid Society of Metropolitan Toronto, (1995) 1 Supreme Court of Canada Reports 315; Winnipeg Child and Family Services v. K.L.W., (2000) 2 Supreme Court of Canada Reports 519); … by government policy and laws (for example, specific criminal law protections, family law reforms, and child protection services), and by international legal authorities.…
However, by permitting incursions on children’s bodies by their parents or teachers, section 43 appears to be a throwback to old notions of children as property. Section 43 reinforces and compounds children’s vulnerability and disadvantage by withdrawing the protection of the criminal law. Moreover, because the accused is the very person most often charged with the control and trusteeship of the child, being deprived of the legal protection to which everyone else is presumptively entitled exacerbates the already vulnerable position of children. The entitlement to protection is derived by virtue of our status as persons and the status of children as persons deserves equal recognition.…
[Section] 43 as it currently stands permits a broader range of assaults to be justified by its terms. There is a general consensus among experts that the only benefit of mild to moderate uses of force, such as spanking, is short-term compliance. Anything more serious is not only not conducive to furthering the education of children, but also potentially harmful to their development and health.… It cannot be seriously argued that children need corporal punishment to grow and learn. Indeed, their capacities and circumstances would generally point in the opposite direction — that they can learn through reason and example while feeling secure in their physical safety and bodily integrity.
By condoning assaults on children by their parents or teachers, section 43 perpetuates the notion of children as property rather than human beings and sends the message that their bodily integrity and physical security is to be sacrificed to the will of their parents, however misguided.… Section 43 creates a category of “second-class citizens” that must suffer a “consequent attenuation of [their] right to dignity and physical security.” Far from corresponding to the actual needs and circumstances of children, section 43 compounds the pre-existing disadvantage of children as a vulnerable and often-powerless group whose access to legal redress is already restricted.
The Charter infringement in this case is discriminatory at a very direct and basic level. It clearly impairs the equal rights of children to bodily integrity and security in a much more intrusive way than necessary to achieve a valid legislative objective. The provincial and policy mechanisms available do not change this effect.
The Opinion of Justice Arbour
Justice Arbour came to a conclusion, in her words, “not very different from that reached by the chief justice.” The majority reached their conclusions as to the limitations of corrective force in section 43 because they reflected what the statute, itself, requires. Justice Arbour reached her conclusions as to these limitations because they reflect what the Charter, as part of the supreme law of the land, requires. For that reason, because section 43 offends the Charter, Justice Arbour would have set aside the statute. To do so, she said, does not leave either parents or teachers defenceless in appropriate cases. She pointed to two common law defences, which are described below in “You Be the Judge: A Case of Necessity?” and “Still Another Common Law Defence: De Minimis?”
Further, and this is central to Justice Arbour’s argument, it should be Parliament that brings its laws into conformity with the Charter. It is not the Court’s role to reshape