It is implicit in this technique that current social consensus on what is reasonable may be considered. It is wrong for caregivers or judges to apply their own subjective notions of what is reasonable. Section 43 demands an objective appraisal based on current learning and consensus. Substantial consensus, particularly when supported by expert evidence, can provide guidance and reduce the danger of arbitrary, subjective decision making.
Conclusions Reached: Reasonable Under the Circumstances
The Court reached conclusions — based on interpretation and past decisions, as well as international treaties and “social consensus” — that were quite specific as to “reasonable under the circumstances” as set out in section 43. The chief justice stated these conclusions and they constitute the rules that now apply in the interpretation of section 43:
Based on the evidence currently before the Court, there are significant areas of agreement among the experts on both sides of the issue.…
Corporal punishment of children under two years is harmful to them, and has no corrective value given the cognitive limitations of children under two years of age.
Corporal punishment of teenagers is harmful, because it can induce aggressive or antisocial behaviour.
Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful. Corporal punishment which involves slaps or blows to the head is harmful. These types of punishment, we may conclude, will not be reasonable.
Contemporary social consensus is that, while teachers may sometimes use corrective force to remove children from classrooms or secure compliance with instructions, the use of corporal punishment by teachers is not acceptable. Many school boards forbid the use of corporal punishment, and some provinces and territories have legislatively prohibited its use by teachers…. This consensus is consistent with Canada’s international obligations, given the findings of the Human Rights Committee of the United Nations noted above. Section 43 will protect a teacher who uses reasonable, corrective force to restrain or remove a child in appropriate circumstances. Substantial societal consensus, supported by expert evidence and Canada’s treaty obligations, indicates that corporal punishment by teachers is unreasonable.
A Word about Precedent
The chief justice acknowledged a critique by Justice Arbour (see “The Opinion of Justice Arbour” that follows). There have been a number of varied, even conflicting, decisions coming from trial and appellate Canadian courts as to the meaning of “reasonable under the circumstances” under section 43. Still, the chief justice said that the new guidelines should help to establish some more specific and objective principles that should lead to uniformity. (Justice Arbour did not dispute the conclusions reached by the majority. Rather, she insisted that those conclusions should have been developed under section 7 of the Charter and, more appropriately, through Parliamentary enactment of a new law.) The chief justice stated:
It must be conceded at the outset that judicial decisions on section 43 in the past have sometimes been unclear and inconsistent, sending a muddled message as to what is and is not permitted. In many cases discussed by Arbour J., judges failed to acknowledge the [evolving] nature of the standard of reasonableness, and gave undue authority to outdated conceptions of reasonable correction.
On occasion, judges erroneously applied their own subjective views on what constitutes reasonable discipline — views as varied as different judges’ backgrounds. In addition, charges of assaultive discipline were seldom viewed as sufficiently serious to merit in-depth research and expert evidence or the appeals which might have permitted a unified national standard to emerge. However, the fact that a particular legislative term is open to varying interpretations by the courts is not fatal.… This case, and those that build on it, may permit a more uniform approach to “reasonable under the circumstances” than has prevailed in the past. Again, the issue is not whether section 43 has provided enough guidance in the past, but whether it expresses a standard that can be given a core meaning in tune with contemporary consensus.…
Precedent itself is not always crystal clear, the chief justice seemed to say. But, at least “precedent” should set a guiding principle as to how the law should be construed.
Trumping the Best Interests
of the Child Principle
The law has overridden the principle of the best interests of the child. In the Foundation case, Chief Justice McLachlin, speaking for the Court, stated that the best interests of the child may be an important legal principle, but it can be overridden by other societal needs. The chief justice wrote:
The legal principle of the “best interests of the child” may be subordinated to other concerns in appropriate contexts. For example, a person convicted of a crime may be sentenced to prison even where it may not be in his or her child’s best interests. Society does not always deem it essential that the “best interests of the child” trump all other concerns in the administration of justice. The “best interests of the child,” while an important legal principle and a factor for consideration in many contexts, is not vital or fundamental to our societal notion of justice, and hence is not a principle of fundamental justice.
YOU BE THE JUDGE
A Matter of Correction?
The Facts
Under section 43 of the Criminal Code, Janet Wye, age twenty-five, was charged with assaulting her six-year-old son, Jason. Ms. Wye had taken Jason and her three-year-old daughter, Lucy, to the neighbourhood supermarket. Time and again that day, Ms. Wye had quietly and firmly told Jason not to tease his sister. And, time and again, Jason, who understood what he had been told, had proceeded to tease Lucy by pulling her hair and laughing at the result, namely, Lucy in tears with his mother visibly upset.
At the supermarket, Jason’s teasing became more forceful. He not only pulled his sister’s hair, but he yanked some of it out by the roots. Lucy screamed. Jason laughed, and he continued laughing — even when his mother screamed at him. Purposefully, Jason started teasing Lucy. He yanked as hard as he could at some of her long hair.
At that point, his visibly angry mother energetically shook Jason. She said to him, “How would you like it if someone pulled your hair?” She then reached down, took a small clump of Jason’s hair, and pulled it out by the roots. Some blood flowed from the wound. Jason immediately stopped his teasing. Shocked, he looked at his mother and started to cry.
The store manager called the police. Ms. Wye was arrested and charged with assaulting Jason in violation of the Criminal Code. A Children’s Aid worker took charge of the children.
The Issue
Was the force Ms. Wye used against Jason intended to “correct” his behaviour and, as such, was it a defence against the assault charged?
Points to Consider
Section 43 of the Criminal Code prohibits intentional use of force against another without that person’s consent.
The force that Ms. Wye used against Jason was not minor. It was not what the law would term de minimis.
Section 43 does indeed provide a defence against assault of a child by a parent or schoolteacher if it is intended for correction and/or educational purpose.
A section 43 defence by a parent must demonstrate that the assault was reasonable under the circumstances.
The child assaulted (Jason) must be capable of benefiting from the discipline, that is, the assault.
Discussion
Ms. Wye’s defence would likely be rejected for two reasons: (1) the force she used was not imposed to educate