To Correct and Educate
On the facts, Ms. Wye physically disciplined her child while she was angry. The chief justice, speaking for the Supreme Court of Canada in the Foundation case, stated that it is not possible for a person in a state of anger to administer physical discipline which, if it is used at all, must be for educative or corrective purposes. She wrote:
The person applying the force must have intended it to be for educative or corrective purposes.… Accordingly, section 43 cannot exculpate [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….
Reasonable Under the Circumstances
An important element for a section 43 defence, the Court ruled, is that the physical discipline must be reasonable under the circumstances. The Foundation questioned whether this test has any objectivity, and whether what is “reasonable” is open to the trial judge’s interpretation. So it was that the Foundation cited The Queen v. K.(M.) (1992), 74 Canadian Criminal Cases, 3d series 108. There, Justice O’Sullivan of the Manitoba Court of Appeal wrote, “The discipline administered to the boy in question in these proceedings [a kick in the rear] was mild indeed compared to the discipline I received in my home.”
Reasonableness, said Chief Justice McLachlin in the Foundation case, is a broad standard. But it does have meaning. Trial judges are not free to do whatever they want. There are limits placed on its application. The chief justice wrote:
The reality is that the term reasonable gives varying degrees of guidance, depending upon the statutory and factual context. [In itself, the term] 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 [individual] law enforcement.
Is section 43’s reliance on reasonableness, considered in this way, unconstitutionally vague? Does it indicate what conduct risks criminal sanction and provide a principled basis for enforcement? While the words on their face are broad, a number of implicit limitations add precision.
The first limitation arises from the behaviour for which section 43 provides an exemption, simple non-consensual application of force. 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.
Applied to Ms. Wye, her section 43 defence would likely fail. She struck in anger, and this probably foreclosed an intent to be corrective. Yet more to the point, she caused bodily harm to Jason. She yanked out his hair and caused him to bleed.
A Case of Serious Misbehaviour
Penny Franklin, age twelve, understood the difference between right and wrong. However, she was the leader of a gang of seven girls who called themselves the Holy Terrors. The object of the gang was to intimidate neighbourhood girls who were the same age or younger.
Penny’s parents believed in the philosophy of “spare the rod and spoil the child.” Learning of their daughter’s involvement with the gang, they cautioned her in the strongest possible terms to stop, and they spoke with school authorities — all to no avail.
One day, Mr. and Mrs. Franklin became aware of a particularly vicious attack by the Holy Terrors on eleven-year-old Zoë. No one struck Zoë, but for more than an hour she was swarmed by the Holy Terrors and intimidated. To Penny’s parents, particularly in view of the warning they had given their daughter, this was extremely serious misbehaviour. They felt strongly that it was their duty as parents to take corrective action. Mrs. Franklin took responsibility for meting out discipline. She strapped her daughter, giving her ten strong lashes on her bottom. The punishment left bruises on the girl.
Penny’s serious misbehaviour, however, is not a factor in determining whether her mother’s use of the strap was justified. Corporal punishment, said Chief Justice McLachlin for the Court majority in the Foundation case, should be used only to correct, never to punish. She wrote, “It is improper to … focus on the gravity of a child’s wrongdoing, which invites a punitive rather than corrective focus.… The focus under section 43 is on the correction of the child, not on the gravity of the precipitating event. Obviously, force employed in the absence of any behaviour requiring correction by definition cannot be corrective.” Further, discipline cannot be inflicted if it is likely to cause harm to the child.
CHALLENGE QUESTION
Setting Standards
Q: Will the “rules” set by the Supreme Court in the Foundation case remain fixed? For example, if it is wrong to spank a teenager today, might it become acceptable at another time?
The Court ruled that objective standards should always apply. Further, central to such objective standards is that corporal discipline should always be directed toward correction and/or education.
Trial judges must decide what is reasonable under the circumstances and at the same time recognize that circumstances may change over time. The Court suggested that an approach might be to look to expert evidence, though it did not expressly state that it might come from child psychologists or social workers. Chief Justice McLachlin stated:
Determining what is reasonable under the circumstances in the case of child discipline is also assisted by social consensus and expert evidence on what constitutes reasonable corrective discipline. The criminal law often uses the concept of reasonableness to accommodate evolving mores and avoid successive “fine-tuning” amendments. 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.
Justice Binnie’s Partial Dissent
in the Foundation Case
Justice Binnie agreed with the Court’s result as applied to parents and those standing in for parents. He had this to say about the proper role of the appellate courts in “calibrating” the application of rules to changing societal values:
Providing a defence to a criminal prosecution in the circumstances stated in section 43 is rationally connected to the objective of limiting the intrusion of the Criminal Code into family life.
As to minimal impairment, the wording of section 43 not only permits calibration of the immunity to different circumstances and children of different ages, but it allows for adjustment over time. In this respect, the Crown’s expert, Nicholas Bala, stated:
In the past, the use of belts, straps, rulers, sticks and other similar objects to deliver a punishment was commonly accepted, both by society and the courts, as reasonable in the chastisement of children. Today, most courts hold that, in most circumstances, the use of these objects is excessive. As well, previously, courts have considered punishment causing temporary pain lasting a few days, but without permanent injury, to be reasonable. Today’s courts scrutinize the level of pain, bruises, red marks and other signs of temporary harm carefully. In most cases, when they find that a child has suffered some injury, the teacher, parent or person taking the place of a parent is convicted of assault.
In the past, as Arbour J. demonstrates in her reasons, the elasticity of section 43 has led to acquittals in some quite