It follows that section 43 of the Criminal Code will satisfy the constitutional requirement for precision if it delineates a risk zone for criminal sanction. This achieves the essential task of providing general guidance for citizens and law enforcement officers.
This case illustrates that the courts may not be able to spell out with any precision the law in any particular case. What the Supreme Court can do, and what it has done, is indicate a danger area — an area of “risk.” Those who approach it run the risk of crossing the line and having their actions deemed unconstitutional. Often the role of lawyers is to caution their clients that they run the risk of having their actions deemed unconstitutional and, with that declaration, being saddled by the Court with liability for the wrong done.
Creating a Risk Zone
To determine whether section 43 creates a risk zone, the Court majority considered the words of the provision in the context of their ordinary meaning, as well as court decisions interpreting those words.
The chief justice said that section 43 is precise as to who may access the provision: parents, teachers, and those standing in for parents in the sense of carrying all of their duties. In defence of section 43, the chief justice said that it requires that the force is used by way of correction. Further, that force must be reasonable under the circumstances. At this point, the chief justice turned to specific cases to provide further interpretation.
Correction and Education
The chief justice said of correction:
First, the person applying the force must have intended it to be for educative or corrective purposes.… Accordingly, section 43 cannot [allow] outbursts of violence against a child motivated by anger or animated by frustration. It admits into its sphere of immunity only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control, or express some symbolic disapproval of his or her behaviour. The purpose of the force must always be the education or discipline of the child.…
Second, the child must be capable of benefiting from the correction. This requires the capacity to learn and the possibility of successful correction. Force against children under two cannot be corrective, since on the evidence they are incapable of understanding why they are hit.… A child may also be incapable of learning from the application of force because of disability or some other contextual factor. In these cases, force will not be “corrective” and will not fall within the sphere of immunity provided by section 43.
Reasonable under the Circumstances
Reasonableness, said the chief justice, is a concept long used in law in a number of different areas. It takes its meaning from particular facts and, in that regard, individuals have grown accustomed to measuring their conduct accordingly. The chief justice explained:
The law has long used reasonableness to delineate areas of risk, without incurring the dangers of vagueness. The law of negligence, that has blossomed in recent decades to govern private actions in nearly all spheres of human activity, is founded upon the presumption that individuals are capable of governing their conduct in accordance with the standard of what is reasonable.
But reasonableness as a guide to conduct is not confined to the law of negligence. The criminal law also relies on it. The Criminal Code [citing specific sections] expects that police officers will know what constitutes reasonable grounds for believing that an offence has been committed, such that an arrest can be made (section 495); that an individual will know what constitutes reasonable steps to obtain consent to sexual contact (section 273.2(b)); and that surgeons, in order to be exempted from criminal liability, will judge whether performing an operation is reasonable in all the circumstances of the case (section 45). These are merely a few examples; the criminal law is thick with the notion of reasonableness.
Again, while reasonableness is a standard that has been used to provide guidance, to signal approaching a zone of risk the Court emphasized that the factual and statutory context are important determiners as to meaning. The chief justice stated:
Reality is that the term “reasonable” gives varying degrees of guidance, depending upon the statutory and factual context. It does not insulate a law against a charge of vagueness. Nor, however, does it automatically mean that a law is void for vagueness. In each case, the question is whether the term, considered in light of principles of statutory interpretation and decided cases, delineates an area of risk and avoids the danger of arbitrary ad hoc law enforcement.
In the case of section 43, the chief justice said there were implicit limitations on the law that help shape its meaning, and she named the following:
1 Section 43 provides an exemption for the simple, non-consensual use of force. What it doesn’t permit is force that causes harm or raises a reasonable prospect of harm. This means that section 43 can be used only in the mildest forms of assault. The chief justice wrote:Section 43 does not exempt from criminal sanction conduct that causes harm or raises a reasonable prospect of harm. It can be invoked only in cases of non-consensual application of force that results neither in harm nor in the prospect of bodily harm. This limits its operation to the mildest forms of assault. People must know that if their conduct raises an apprehension of bodily harm they cannot rely on section 43. Similarly, police officers and judges must know that the defence cannot be raised in such circumstances.
2 The line between mild discipline that does not cause harm and injuring a child in the name of discipline, the Court suggested, has been drawn in international treaties to which Canada is a party. As such, the Court cited cases requiring it to interpret Canadian statutes in a way that conforms with international treaties. The Court summarized those obligations as they relate to children: “Canada’s international commitments confirm that physical correction that either harms or degrades a child is unreasonable.”The chief justice referred to specific treaties:Canada is a party to the United Nations Convention on the Rights of the Child. Article 5 of the Convention requires state parties to respect the responsibilities, rights and duties of parents or … other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.Article 19(1) requires the state party to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.Finally, Art. 37(a) requires [those nations agreeing to the Convention] to ensure that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.” … This language is also found in the International Covenant on Civil and Political Rights … to which Canada is a party. Article 7 of the Covenant states that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The preamble to the International Covenant on Civil and Political Rights makes it clear that its provisions apply to “all members of the human family.” From these international obligations, it follows that what is “reasonable under the circumstances” will seek to avoid harm to the child and will never include cruel, inhuman or degrading treatment.
3 Yet, the Court noted and emphasized that neither the Convention on the Rights of the Child nor the International Covenant on Civil and Political Rights explicitly require state parties to ban all corporal punishment of children.
4 A somewhat subtle approach has been taken in the interpretation of international treaties as applied to the corporal punishment of children by parents and teachers. Here the treaties have been read against section 7 of the Charter. In the process of monitoring compliance with the International Covenant on Civil and Political Rights, the Human Rights Committee of the United Nations has said that physical punishment of children in schools involves section 7’s prohibition of degrading treatment or punishment. The committee, Chief Justice McLachlin noted, has not expressed a similar opinion regarding parental use of mild corporal punishment.
5 Further,