Section 43 of the Criminal Code
Section 43 has long been part of the criminal law. As such, Justice Arbour said, it stood for values allowing “reasonable” force on children. She stated:
That section 43 is rooted in an era where deploying “reasonable” violence was an accepted technique in the maintenance of hierarchies in the family and in society is of little doubt. Children remain the only group of citizens who are deprived of the protection of the criminal law in relation to the use of force.…
Whether such policy ought to be acceptable today with respect to children is the subject of ongoing debate in society about the appropriateness and effectiveness of the use of corporal punishment by way of correction. We have not been asked to take a side in that debate. However, the issue is also the subject of the constitutional challenge brought before us by the Foundation. This legal challenge is what we must address.
Section 7 of the Charter
To Justice Arbour, it is section 7 of the Charter that must be examined to determine the constitutionality of section 43. Section 7 provides: “Everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
The first part of the test under section 7 is whether section 43 affects the “security of the person” when the person is a child. Justice Arbour said there is no doubt on this point. The criminal law is an important means by which the State protects the liberty and security of its citizens. The operation of section 43 withdraws that security, which applies to parents and teachers, from children.
This brought Justice Arbour to the second part of the analysis of section 7: Has the security of children been denied by section 43 in accordance with the principles of fundamental justice? In this regard, she accepted the argument of the Foundation that “reasonable under the circumstances” is a standard too vague to allow for clear guidelines; judges could do as they pleased. And, in the view of Justice Arbour, that is precisely what many courts have done. There were no objective case guides (precedents).
It may be, Justice Arbour said, that “reasonableness” in other contexts does permit objective standards. For example, there is something to measure the standard of reasonableness against if the question relates to self-defence. In the face of a defined threat, what was necessary to defend oneself? But, the same may not be said of “reasonableness” applied to the physical discipline of children. Justice Arbour wrote:
This is not so in the case of corporal punishment of children, where there is no built-in [relationship] between physical punishment and bad behaviour that can be used to assess proportionality. Indeed, the chief justice concludes … that the gravity of the child’s conduct is not a “relevant contextual consideration” as it invites a punitive, rather than a corrective focus.
Corporal punishment is a controversial social issue. Conceptions of what is “reasonable” in terms of the discipline of children, whether physical or otherwise, vary widely, and often [involve] cultural and religious beliefs as well as political and ethical ones. Such conceptions are intertwined with how other controversial issues are understood, including the relationship between the State and the family and the relationship between the rights of the parent and the rights of the child.
Whether a person considers an instance of child corporal punishment “reasonable” may depend in large part on his or her own parenting style and experiences. While it may work well in other contexts, in this one the term “reasonable force” has proven not to be a workable standard. Lack of clarity is particularly problematic here because the rights of children are engaged….
Justice Arbour stated that because reasonable under the circumstances is vague, neither parents nor teachers understand the zone of risk, the area in which they might be charged under the criminal law: “A standardless sweep does not become acceptable simply because it results from the whims of judges and justices of the peace rather than the whims of law enforcement officials. Cloaking whims in judicial robes [is] not sufficient to satisfy the principles of fundamental justice.”
Justice Arbour further ruled, that because section 43 is “standardless” — that is, too vague — it cannot meet that portion of section 1 of the Charter, that might otherwise allow a violation of section 7 to stand.
International Treaties and Canada: Protection of the Child
Section 43, Justice Arbour said, had to be measured against the requirements of the Charter, and especially section 7 of that document. After all, the Charter, as the highest law in Canada, sets standards that must be met by statutes such as the Criminal Code.
A source for understanding the rights of children, as they relate to principles of fundamental justice within the meaning of section 7, are Canada’s international obligations found in treaties. There, said Justice Arbour, Canada not only has obligated itself to the United Nations Convention on the Rights of the Child, but Canada is also committed to take part in the Committee on the Rights of the Child, set up under the agreement. That committee, whose comments are not binding, said of section 43 in a summary given by Justice Arbour:
It is notable that the Committee has not recommended clarifying these laws [section 43] so much as abolishing them entirely.… The Committee’s Concluding Observations on Canada’s First Report are illustrative:
Penal legislation allowing corporal punishment of children by parents, in schools and in institutions where children may be placed [should be considered for review]. In this regard … physical punishment of children in families [should] be prohibited. In connection with the child’s right to physical integrity … and in the light of the best interests of the child, … the possibility of introducing new legislation and follow-up mechanisms to prevent violence within the family [should be considered], and … educational campaigns [should] be launched with a view to changing attitudes in society on the use of physical punishment in the family and fostering the acceptance of its legal prohibition. Committee on the Rights of the Child, Report adopted by the Committee at its 233rd meeting on 9 June 1995, Ninth Session, CRC/C/43, at para. 93.
In its most recent Concluding Observations, the Committee expressed “deep concern” that Canada had taken “no action to remove section 43 of the Criminal Code” and recommended the adoption of legislation to remove the existing authorization of the use of “reasonable force” in disciplining children and explicitly prohibit all forms of violence against children, however light, within the family, in schools and in other institutions where children may be placed. (Committee on the Rights of the Child 2003, paras. 32–33)
YOU BE THE JUDGE
A Case of Necessity?
The Facts
Simon Just has been an elementary school teacher for fifteen years. He is recognized by school administrators and students as fair-minded but strict. Rules of conduct, he has frequently said, are meant to be followed. “If they are not taught here and accepted, the likelihood is that they will not be accepted later on in a child’s education.”
Simon Just is an athletic person with a black belt in karate.
One day, he heard screaming in the school hall. Two ten-year-old boys were in the midst of a fight. Both had drawn knives and they were slashing at each other. Both were bleeding.
Just rushed over. He knew both boys. He had been their teacher for three years, and he considered them “hot heads.” They had little capacity to manage their frustrations. With two swift karate chops, Just not only disabled both boys, but knocked them out. Both were rushed to the hospital. They suffered from concussions and dislocated shoulders.
The police laid charges of assault against Just, who admitted that shouting at the boys during the fight might have ended the confrontation. But he felt that this was a chance that he simply could not take. In his view, the boys had been dangerous, capable of seriously wounding him and each other with their knives.
The Issue
Did the fight present an emergency