E LAW - MURDOCH UNIVERSITY ELECTRONIC JOURNAL OF LAW ISSN 1321-9447 Volume 10 Number 4 (December 2003) Copyright E Law and author ftp://law.murdoch.edu.au/pub/elaw-issues/v10n4/grover104.txt http://www.murdoch.edu.au/elaw/issues/v10n4/grover104.html ________________________________________________________________________ Negating the Child’s Inclusive Right to Security of the Person: A Charter Analysis of the s. 43 Canadian Criminal Code Defense to Corporal Punishment of a Minor Sonja Grover Lakehead University Faculty of Education Contents * Section 43 and a Child's General Right to Security of the Person * The Child's Right to an Inclusive Security of the Person Protection o The Section One Test for Justifiable Infringements on General Rights and Freedoms o Analysis of s. 43 of the Canadian Criminal Code as to Proportionality + Does the means (s. 43) impair rights as little as possible? + The Affront to Human Dignity and Degradation of a General Charter Right + The Increased Risk of Non-accidental Physical Injury to the Child + Are the means fair, non-arbitrary and rationally connected to the objective? + The arbitrary nature of the s. 43 notion of justifiable and reasonable force + The Failure of s 43 to Serve the Child's Best Interests + The s. 12 Charter issue: Cruel and unusual punishment + Are the negative effects of Section 43 outweighed by the objective attained and is the measure used the least restrictive available? * Conclusion: Section 43 as Inimical to a Free and Democratic Society * Endnotes * Interveners * References * Cases and Legislation Editors’ Note: This case analysis, though blind refereed, was placed in the Current Developments section of the journal with the agreement of the author since the paper deals with a very narrow issue in relation to s.43 of the Canadian Criminal Code (the defense of corporal punishment of a child). That issue is whether the existence of the defense results in the denial of a constitutional guarantee of security of the person for Canadian children. Section 43 and a Child's General Right to Security of the Person 1. This paper provides an analysis of the constitutionality of s. 43 of the Canadian criminal code concerning corporal punishment of the child. Section 43 states: Correction of a child by force. Every schoolteacher, parent, or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances (Carswell, 1998, s. 43 of the Canadian criminal code) 2. To understand the fundamentally unconstitutional nature of s. 43 it is necessary to appreciate that Section 43 does not, despite first appearances, function as do other defenses. For example, in the case of a self-defense answer to an assault charge, the defendant agrees with the Crown that an assault took place and that normally such an action is a crime. With this agreement is the implicit understanding that all persons are generally entitled to security of the person as guaranteed under s. 7 of the Canadian Charter (1982). The defendant, however, relies on establishing that in the situation at hand there was a need to act in self-defense. The defendant maintains that the assault is excusable given this exceptional circumstance and thus that he or she bears no criminal responsibility. If the defendant wins the case and is cleared there is no weakening of the notion that each individual has a general right to be free from physical assault by others. This is so since the defendant has proven the existence of an exceptional situation -one requiring self-defense-which excuses the assault. Thus the s. 7 Charter general right of every person in Canada to security of the person remains intact and robust. 3. In the s. 43 case, in contrast to the typical assault case, the defendant argues that there was no assault against the minor. This is the defendant's position even where there is an acknowledgment by the defendant of the application of force against the minor without the minor's consent. The defense is based on the argument that the application of unwanted force against the child was justified not that it was "excusable." Note that justification for the use of reasonable force against a child under certain conditions is a concept specifically referred to in the actual text of section 43. Justice Watson in R v Levesque explained the importance of the distinction between behavior which is justified versus excused in the criminal law thus: ..s. 43 asserts an outright justification for the correction and not merely an excuse. The correction is not just tolerable; it is justified. The difference between the two concepts is not, in my view, merely a matter for legal academics to debate: see Perka where Dickson C.J.C. wrote: Packer, The Limits of the Criminal Sanction (1968), expresses the distinction thus at p.113: '..conduct that we choose not to treat as criminal is "justifiable" if our reason for treating it as noncriminal is predominantly that it is conduct that we applaud, or at least do not actively seek to discourage: conduct is "excusable" if we deplore it but for some extrinsic reason conclude that it is not politic to punish it'. The language chosen by Parliament in s. 43 persuades me that Parliament intended the so-called defence of `correction' to be a justification, not just an excuse. This is not a semantic difference but is a difference of profound social policy implications (R. v. Levesque 2001 ABQB 822 at paragraphs 91-92; emphasis added). 4. The defendant in a s. 43 case thus argues that: a) interference with the security of the person of the child is a generally protected and socially sanctioned behavior by a parent, teacher or delegate under s 43 and b) as a consequence, the defendant's behavior does not qualify as assault in the first instance but is rather a different act namely application of reasonable "corrective force." Section 43 thus has two effects. First, it sets out that as a rule the application of force against a child by a parent or delegate or school teacher for what the adult considers a corrective purpose is not normally considered an assault but rather a different sort of "justified" act. Secondly, s. 43 stipulates that the use of unreasonable force will result in the adult exceeding their jurisdiction and committing the crime of assault. Thus s. 43 establishes that the child's right to security of the person is underinclusive in respect of the child's interaction with those charged with his or her care and the application of force deemed by the perpetrator to be corrective. That underinclusive protection involves only the limited right not to be subjected to unreasonable force. It is then the Crown's burden to show that the use of force in the instant case violates the limited right of protection which the child holds. That is, to prove that the circumstances of the case violate the general rule permitting the use of force on children thus making the act unlawful. Only if the Crown can establish the exception to the rule, namely unreasonable force, does the adult's act become an assault against the child. 5. Thus, given the nature of the burdens of proof and their allocation in a s. 43 case, the proposition that normally adults involved in the care of a child can infringe the child's security of the person under most circumstances remains the general rule. Only in exceptional cases of extreme force by the teacher, parent or those acting in the parent's stead is the child's security of the person right triggered at all. This situation violates the fundamental rationale underlying section one of the Charter regarding legitimate limitations on Charter rights and freedoms: Limits on constitutionally guaranteed rights are clearly exceptions to the general guarantee. The presumption is that Charter rights are guaranteed unless the party invoking s. 1 can bring itself within the exceptional criteria justifying their being limited..... (R. v. Oakes, [1986] 1 S.C.R. 103) 6. Section 43 operates in contravention to the principle underling s. 1 of the Charter so as to make the limit on the child's right to security of the person the general rule rather than the exception. Thus each time a s. 43 argument succeeds, the child's general s. 7 Charter right to security of the person is further degraded. It is in fact only apparent that a child has any right at all to security of the person when the s. 43 defense fails. It is at that point that the child's security of the person right emerges, but then only in the restricted form relating to protection from excessive force. Hence, while adults are generally ensured security of the person save for exceptional circumstances; the child is generally not ensured security of the person save for the exceptional case (that involving extreme force). 7. One might argue that the child does in fact at least have a general right to security of the person in regards to all persons who are not parents, teachers or parental delegates as per s. 43. In practice, however, s. 43 largely eliminates in the public mind the child's general right to security of the person even with persons other than a teacher, parent or parental delegate. This is the case for two reasons: a) anyone may be delegated by the parent to be a parent substitute and s. 43 authorizes delegates to assault the child if the intent is correction and the force reasonable and b) when the child is assaulted by an adult there is a presumption that the adult was so authorized under s. 43 unless proven otherwise by the Crown. These latter factors tend to reinforce the notion that the child has no inclusive right to security of the person regardless who applies the force to the child. 8. No legislation which negates a general guarantee to a Charter right and creates but an underinclusive right such as does s. 43 can meet the s. 1 test for a legitimate infringement. Let us nonetheless continue with further analysis of the child's right to inclusive security of the person protection under s. 7 and the failure of s. 43 to meet the s. 1 test in yet other respects. The Child's Right to an Inclusive Security of the Person Protection 9. The child's inclusive Charter right to security of the person involves the right to be free from infringements by anyone for any purpose which cannot be justified in the particular case under s. 1 of the Canadian Charter. As has been noted, s. 43 actually undermines the right to a general guarantee to security of the person for the child. Setting aside that issue for the moment, the next section examines whether s. 43 meets any of the requirements of the s. 1 Charter test for a justifiable restriction of a right or freedom. The Section One Test for Justifiable Infringements on General Rights and Freedoms 10. In R. v. Oakes, [1986] 1 S.C.R. 103 the Supreme Court of Canada set out the elements of s. 1. The first element was that the limit on the constitutional guarantee must serve an objective "sufficiently important to warrant overriding a constitutionally protected right or freedom." There is little debate that the application of the proper child educative practices by the schoolteacher, parent or their delegates is an important and pressing concern and potentially requires the infringement of certain Charter rights. For example, there is no debate that the infringement on the child's liberty rights through compulsory schooling up to a particular age is a necessity. The constitutionality issue respecting s. 43 of the Canadian criminal code thus has to do with the criteria in the Oakes test relating to whether the means used to achieve the objective are "reasonable and justifiable in a free and democratic society". In order to be found reasonable and justifiable the means used to achieve the objective according to the Oakes test must: a) impair rights as little as possible; b) be fair, non-arbitrary and rationally connected to the objective; and finally c) reflect a proportionality between the means and the objective such that the extent of any negative effects of the measure are warranted and acceptable when balanced against the importance of the objective ( R. v. Oakes, [1986] 1 S.C.R. 103 , see also Egan v Canada [1995] 2 S.C.R. 513 ) Analysis of s. 43 of the Canadian Criminal Code as to Proportionality Does the means (s. 43) impair rights as little as possible? The Affront to Human Dignity and Degradation of a General Charter Right 11. As previously discussed, s. 43 undermines the general Charter guarantee respecting the child's security of the person establishing instead but an underinclusive or limited right to protection from the use of excessive force. The parent also, as explained above, may delegate to any number of people his or her authority to assault the child leaving the child largely unshielded in a way that adults are not. The operation of s. 43 thus fails the test of impairing rights as little as possible. The denial to the child of a general guarantee to security of the person subject only to certain exceptions is an affront to the child's human dignity and contradicts the logic of the section one test (the latter being a test for justifiable restrictions in limited circumstances on an accepted general right). Section 43 in this way serves to erode the key Charter goal of "protecting the most vulnerable members of society" in regards to children (B (R) v Children's Aid of Metropolitan Toronto [1995] 1 S.C.R. 315). 12. The proper test for the constitutionality; that is the proportionality of s 43 includes first and foremost its impact on the human dignity of children as a class and of the particular child involved. Section 43 fails the s. 1 test of impairing rights minimally since in undermining the presumption of a child's general guarantee to security of the person, it diminishes the child's worth as a person. Corporal punishment of a child transforms the parties' world view in terms of the importance of power differentials in defining who has rights and affects the child's spiritual resources. The extent and nature of the negative impact of corporal punishment long-term in terms of the child's development is highly dependent on the nature and frequency of the violations and the cultural context (i.e. meanings ascribed to the experience). The Ontario Court of Appeal in Canadian Foundation for Children, Youth and the Law v Attorney General of Canada² found that there was "associational evidence linking corporal punishment to poor outcomes for children." However, the latter Court held a causal link could not be established given confounding factors such as poverty and the like (Canadian Foundation for Children, Youth and the Law v Attorney General of Canada [2002] Ont ACJ Docket No. C34749 , paragraph 63). 13. The Court's finding of the absence of a proven causal link between corporal punishment and long term harm can with respect be disputed with numerous studies that control for social class and demonstrate such a link (i.e. Denman, 2000; Hastings, 2000; Stormshak, 2000). Nonetheless, there is no doubt that many individuals are able to overcome the experience even of exposure to extreme violence by caretakers. Even should there be an absence of adverse long-term developmental outcome, this would not be a sufficient basis for State sanctioned use of corporal punishment against a child given: a) the affront to human dignity and b) the negating of the child's general Charter right to security of the person. We turn next to examine the failure of s. 43 to impair rights minimally as evidenced by the increased risk of significant non-accidental physical injury associated with the retention of s. 43. The Increased Risk of Non-accidental Physical Injury to the Child 14. Such limitations as do exist in s 43 regarding who is authorized to use "corrective force" and the level of acceptable force have done little to ensure minimal impairment of children's rights. There is in fact inadequate protection in Canada from non-accidental injury to children due to the application of unreasonable force applied in the context of "discipline". The empirical evidence on this point comes from Health Canada's (2001) national study titled the "Canadian Incidence Study on Reported Child Abuse and Neglect" (CIS); the largest study internationally of its kind to date (Principal investigator: Trocme, 2001). The study revealed that most incidents of substantiated child physical abuse in Canada occur in the context of parents and parent substitutes administering corporal punishment for disciplining purposes. As noted by the authors of the study in commenting on their findings: "Child physical abuse is usually connected to physical punishment or is confused with child discipline" (Trocme, 2001, p. 12). The finding was that 69% of the substantiated cases of child physical abuse identified in the CIS occurred in the context of disciplining using corporal punishment or a "corrective force" context. (Physical abuse as defined in the CIS refers to instances where the application of deliberate physical force resulted in non-accidental injury to the child). Recall that Section 43 is designed in part to "justify" the notion in Canadian society that physical punishment of a child is legitimate when used for "corrective" purposes. Yet, it is precisely in that context in Canada that most of the physical abuse of children takes place notwithstanding any admonition in s. 43 regarding the need to use only reasonable force. 15. It is also noteworthy that 35 % of substantiated child physical abuse cases as reported in the CIS study (Trocme, 2001) involved a caregiver with their own history of child abuse. Further, across all categories of abuse, 93% of the perpetrators according to the CIS findings were family members. This suggests that child abuse is, to a significant degree, an inter-generational familial matter having to do with learned patterns and attitudes. Children in Canada according to the CIS findings are at greatest risk of physical abuse in the family context when corporal punishment is being applied as a disciplining technique. Section 43, however, works against initiatives directed toward educating persons with a child abuse history not to repeat the cycle of violence with their own children. Corporal punishment rather is endorsed under s 43 (given the reference to justifiable corrective force) with the parent or parent substitute left to decide for themselves what is reasonable force in the situation. Section 43 thus mitigates against prevention efforts. 16. On the one hand, we have in Canada child protection laws directed to the prevention of harm to children. On the other, there is s. 43 which condones corporal punishment as a disciplinary technique even though child physical abuse in the majority of cases is associated with corporal punishment. Contradictory messages thus often result from proceedings under child protection legislation versus those pertaining to the criminal code (s. 43). There is often a conflict in outcome between the two contexts regarding the determination as to whether or not the child's right to security of the person has in fact been infringed through the use of corporal punishment. Consider for instance Justice Pugsley's comments which follow pertaining to the Nova Scotia Children and Family Services Act (Nova Scotia's child protection statute): The "reasonable force" exception in s. 43 does not appear in the Act. A parent may not be criminally responsible for using force against a child, yet the child nevertheless may be in need of protective services under s. 22 [of the Nova Scotia Children and Family Services Act, S.N.S. 1990] (Nova Scotia (Minister of Community Services) v. B.M. [1998] N.S.J. No. 186, paragraph, 75, portion in square brackets added). 17. This is not to suggest that parents ought to be subjected to criminalization for the use of trivial force against their child. There are other ways of handling such situations such as civil sanctions as will be discussed in a later section. However, the inclusion of s. 43 in the Canadian criminal code with its justified reasonable force clause serves to contribute to the perpetuation of physical child abuse. We can look to Swedish data to gain insight into whether s. 43 is itself a likely contributing factor to the relatively high rates of child abuse in Canada compared to the Scandinavian countries. In Sweden there has been a ban on corporal punishment and humiliating or significantly intimidating treatment of children since 1984 under the Swedish Parenthood and Guardianship Code (code cited in Hindberg , 2001). Since the ban there has been a significant decrease in all forms of a child abuse in a country with rates already very low. The rate of referral to the Hospital in Sweden that receives all abuse cases dropped to one -sixth in 1989 to what it was in 1970 (Haeuser, 1988). It should be noted further that Sweden has had one of the lowest child criminal death rates in the world (.009 per 1000) since the mid- 1970's which statistic includes criminal death due to all causes including physical abuse where there was no intention to cause death. At the same time, fewer children have had to be taken into protective care by the Swedish government with a decrease of 26 % since 1982 (Durrant, 1999). The ban on corporal punishment in Sweden thus has been associated with various indicators of a decrease in child physical abuse. 18. The Swedish national data on child assault also reveals that the largest decrease in child assault suspects was found in the 20-29 year old demographic group who were raised after the ban on corporal punishment was established (Durrant, 1999). Thus, the imposition of the ban appears to have helped to change attitudes in that population at highest risk of abusing their or another's child. While reports of child abuse have increased as in other countries perhaps due to greater sensitivity to the issue; actual substantiated cases and the incidence of serious cases in Sweden have significantly decreased since the ban (Durrant, 1996, 1999). 19. The Swedish data support the notion that abolition of s. 43 of the Canadian criminal code is likely to be helpful as one component of an overall strategy directed to reducing the incidence of child physical abuse in Canada. In contrast, retention of s. 43 represents the State's failure to communicate consistently to society the message that corporal punishment is a risky affair and an unacceptable disciplining technique. The effect as seen is that non-accidental physical injury to children in Canada continues to climb most often at the hands of family members in the so-called disciplinary context. It is useful in this regard to recall the words of Justice Lambert of the Supreme Court of Canada who admonished us that: No child should continue in a state of abuse, neglect, harm or threat of harm while administrators, lawyers and judges argue .... (Winnipeg Child and Family Services v. K.L.W. [2000] 2 S.C.R. 519 at paragraph 106). 20. The protracted debate in Canada over s 43, however, continues despite: a) the CIS evidence that physical abuse of children in Canada is most often associated with corporal punishment in a disciplining context; b) international comparative evidence suggesting s 43 type legislation is a contributor to a higher incidence of child physical abuse and to more serious incidents of physical abuse and c) the fact that s. 43 does not fully accord to the child his or her human dignity nor Charter right to a general guarantee of security of the person. Let us continue now with the analysis of whether s. 43 can meet any of the further elements of the s.1 test. Are the means fair, non-arbitrary and rationally connected to the objective? 21. The Ontario Court of Appeal in the landmark s. 43 case recently heard by the Supreme Court of Canada* suggested that s. 43 is rationally connected to the objective underlying the section. The objective in regards s 43 is that of shielding parents and their delegates as well as school teachers in the proper discharge of their duties in raising and/or educating children in their charge. In the words of the court s 43 functions: To permit parents and teachers to apply strictly limited corrective force to children without criminal sanctions so that they can carry out their important responsibilities to train and nurture children without the harm that such sanctions would bring to them, to their tasks and to the families concerned. (Canadian Foundation for Children, Youth and Law v The Attorney General of Canada [2002] Ont ACJ Docket No. C34749, paragraph 59). 22. The empirical evidence, however, challenges the notion of a non-arbitrary and rational connection between allowing teachers, or parents and their delegates to use corporal punishment on a child and the objective of the proper training and nurturance of the child. As the Canada Health CIS data (Trocme, 2001) as well as other social science data indicate corporal punishment escalates the risk for physical abuse and is thus not particularly conducive to appropriate training and nurturance of a child (see also Denman, 2000; Hastings, 2000; Stormshak, 2000). Further, parents who use corporal punishment more consistently tend to be those who feel that their parenting has little effect, who feel ineffectual as parents and are at risk of escalating their punishment (Pinderhughes, 2000). These parents also tend to feel that the child is uncontrollable by any other means save corporal punishment. Thus corporal punishment is a counterproductive strategy associated with child physical abuse. 23. The Ontario Courts in the Canadian Foundation case furthermore found that the experts, based on the evidence, agree that corporal punishment of very young children under two is non-educative and humiliating while for the teen it may provoke alienation and hostility (Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) [2000] Ont. ACJ Docket No. C34749 at paragraph 8). It is not at all clear then why it should be presupposed as occurred in the Ontario Courts that corporal punishment of the 3-12 year old is any less of an affront to human dignity or any more productive. The age distinction here constitutes a violation of s. 15 Charter equality rights that has no rational basis. There is in fact no empirical evidence to demonstrate that corporal punishment will produce more than simply short-term compliance in the 3-12 year old group when it does no more in any other age group. It is highly dubious that the use of force with a child of any age is in itself educational in that the mode of delivery is also the message and the message is lacking in any useful information (i.e. corporal punishment does not teach the individual on the receiving end how to self-regulate). However, implicit information is conveyed about the child's powerlessness in the face of adult force and the caregiver as a potential threat to one's personal safety and a source of physical and even mental pain in some instances. 24. Section 43 is, furthermore, not rationally connected to the objective of preventing the criminalization of parents for the use of trivial or non-abusive force. As discussed, in countries such as Sweden that have long banned corporal punishment and have no "reasonable force" justification in their criminal code, there has been no such criminalization. Rather, the evidence appears to be that criminalization of parents is more likely with the retention of s. 43. This since such legislation is associated with a higher risk for serious physical abuse against children within the family which in turn is likely to be associated with an increase in criminal prosecutions of parents or their delegates. It should be noted also that there already exists in the Canadian legal system mechanisms to screen out criminal cases not in the public interest. In addition, it is possible to introduce a range of options as to possible outcome in less serious cases of the application of force against a child. These might include, for example, prosecution waivers where the defendant acknowledges in writing the offence, fines and where indicated, some educative course regarding alternate disciplining techniques. Also as in Sweden, the use of force against a child in the prevention of harm to the child or others may specifically be deemed permissible. It appears that s 43 is in the final analysis a dangerous solution looking for a problem. The arbitrary nature of the s. 43 notion of justifiable and reasonable force 25. Section 43 is also arbitrary in that it depends in essence on a "justifiable and reasonable force" defense to the charge of assault. The difficulty is that there is no standard for what constitutes justifiable and reasonable force in any particular situation. The same act of corporal punishment may or may not be considered reasonable and justifiable depending on subjective and variable judgments about the child's temperament, the likely impact of the corporal punishment on that particular child, the extent of the physical injury, the assessed seriousness of the child's offence and the level of physical injury resulting from corporal punishment tolerable in a particular community. (i.e. R. v Levesque ABQB 822 at paragraph 100, Children's Aid Society of the Regional Municipality of Waterloo v S.D. [1995] O.J. No. 1636 at paragraph 16). Since the Crown carries the burden in a criminal case, the defendant need not meet any burden of proving that the force was in fact justified and reasonable in the circumstance. Section 43 cases thus inevitably involve the defendant in a "blame the victim" rationalization for the corporal punishment and the extent of force used. Except where the child suffers grave physical injury, the possibility remains open that the amount of force used will be considered reasonable in any specific s. 43 case by any particular Court. 26. The boundaries of the child's right to security of the person in respect of protection from the application of excessive force in corporal punishment are thus redefined in every case. Where those boundaries are placed will depend on what the particular Court assesses as relevant. The factors considered, as mentioned, often include such extraneous things as the temperament of the child and not just the particulars of the assault itself. If the defendant can establish the intent of "correction," there will already be a bias toward finding the level of force "reasonable" since the notion of corrective force implies necessity. Thus the force will generally be considered reasonable except where there is serious injury to the child. The Failure of s 43 to Serve the Child's Best Interests 27. In Canada, under s. 43 corporal punishment in the case of children aged 3 to 12 as applied by a parent or other authorized person with corrective intent is automatically considered to be in the child's best interests unless proven otherwise. There is, however, as we have seen no empirical support for the notion that corporal punishment is in the child's best interest. Thus the child is caught in an "Alice in Wonderland" world where the intentional infliction of physical harm in such circumstances is held to be of benefit to the child in some vague educative fashion. Such a notion is premised on the assumption in the first instance that parents act in the best interests of their child even when administering corporal punishment and that the child normally has no legitimate competing interest. (Assault cases involving adult victims would surely have more favorable outcomes for the defense was the perpetrator routinely held as acting in the best interests of the victim for "corrective" purpose unless proven otherwise.) Section 43 thus inappropriately places the parental liberty interest above the child's security of the person interest until and unless the Crown succeeds on its case. This prioritization is contrary to that in the child protection case (Winnipeg Child and Family Services v K.L.W. [2000] 2 S.C.R. 519 at paragraph 94). 28. Child protection laws are simply not effective enough in preventing abuse when countered by s. 43 which in practice works against deterrence of the use of abusive physical punishment. One is led to concur with the European Court of Human Rights that: "Children and other vulnerable individuals, in particular are entitled to State protection, in the form of effective deterrence..." (A v. United Kingdom, European Court of Human Rights [1998] 100/1997/84/109 at paragraph 22). Canada to date has not sufficiently provided that effective deterrence to physical child abuse in part since the State retains the s. 43 provision which justifies the use of corporal punishment. The State thus continues to retain s. 43 condoning corporal punishment despite: a) its association with an increased risk of child physical abuse; b) the absence of evidence for the corrective value of physical punishment of children as acknowledged in the recent Canadian Foundation case (Canadian Foundation for Children, Youth and the Law v The Attorney General of Canada [2002] Ont ACJ Docket No. C34749 at paragraph 9) and c) evidence that abolition of the section need not be associated with criminalization of parents or teachers for the use of non-abusive force against a child. 29. Section 43 not infrequently provides a justification for teachers, parents and parental delegates when they use nontrivial force against a child in their charge which would be considered abusive in the protection context. It is not consistent with the State's goal of protecting the sanctity of the family, however, to sacrifice the well-being of its youngest members. Such does nothing to preserve the integrity of family life as normally conceived. The child further is not just a member of a family but of a larger community that also has an interest in the young person's well-being. It must be recognized then that: "..Violence is never a private matter" (Statement from the Swedish Ministry responsible for child welfare; cited in Hindberg, 2001). The benevolent intent of the State in retention of s. 43 is not sufficient to overcome the negative impact upon individual children, children as a class, the integrity of the family and the society as a whole. Focusing on the State's intent rather than the impact of legislation opens the door to permitting fundamental human rights violations based on good intent. Jeffrey Wilson put the matter eloquently as follows: ..the very fundamental equality rights so laboriously delineated in subsection 15(1) could be denied to a powerless constituency as long as the intent of a patriarchal legislature is benevolent" (Wilson, J., Cited in Bayefsky, A. and Ebert, M. 1985, p. 300) 30. The State via s. 43 has stipulated that corporal punishment of a child under the conditions specified in that section is "corrective"; that is in the best interests of the child (i.e. a necessary educational or child rearing tool). In this way, a profound infringement of rights is inappropriately regarded as in the child's best interest. This despite the fact that the Courts and the social science experts all agree that corporal punishment is not an effective educational device and can produce harm at least under certain scenarios (see for instance Canadian Foundation for Children Youth and the Law v Canada (Attorney General ) [2000] Ont ACJ Docket No. C34749). We turn now to a discussion of the s. 12 Charter issue in relation whether s. 43 is rationally connected to the State's objective. The s. 12 Charter issue: Cruel and unusual punishment 31. Corporal punishment even where it does not result in physical injury meets the definition of cruel and unusual punishment if one considers that: ..cruelty [is] not confined on its meaning to conduct that creates a danger to life, limb or health but includes any course of conduct ...that is grossly insulting and intolerable (Alberta Domestic Relations Act, RSA 2000, Chapter D-12, s.6(12): emphasis added). 32. A view of corporal punishment as part of a context involving cruel treatment due to its gross insult to human dignity is consistent with the position of the Israeli Supreme Court in the case that marked the end of corporal punishment in that country: 33. Corporal punishment of children, or humiliation and derogation from their dignity as a method of education by their parents, is entirely impermissible (Plonit v A.G. Israeli Supreme Court Criminal Appeal 4596/98, 54(1) P.D. 145; emphasis added). 34. There can be little disagreement that corporal punishment is grossly insulting to any person and it is for that reason that the courts in the Canadian Foundation case, for instance, admonished against the use of corporal punishment with teens (Canadian Foundation for Children Youth and the Law v Canada (Attorney General ) [2000] Ont. ACJ Docket No. C34749, paragraph 8). It is respectfully submitted that physical punishment is no less of an affront to the human dignity of a child of any other age. It is to be emphasized that the parent or teacher administering corporal punishment does so wittingly or unwittingly under the auspices of the State- provided justification in s. 43 and accordingly acts as a delegate of the State. Note that schools are agents of the State and hence it is not surprising that school teachers in particular were included in the s. 43 defense. 35. The State has an interest in ensuring that children mature into law abiding citizens who conform to social norms that are considered to be within the spectrum of what can be tolerated by the larger Canadian society. The State has unwisely decided that providing a defense for corporal punishment of the child as per s. 43 will assist in its meeting the aforementioned objective. Hence, the charge of cruel and unusual punishment on this interpretation is applicable to corporal punishment of a child by a parent, parental delegate or teacher. The behavior is State sanctioned and fulfils a State objective and is thus not simply a reflection of private behavior between individuals in a family or school setting. Consequently, it is proposed that the State bears some of the responsibility for the rates of child abuse in Canadian society given its approval under s. 43 of corporal punishment as a form of justified discipline despite the risks. 36. The aforementioned position regarding the State's contribution to corporal punishment of the child and its consequences is contrary to that put forward by the Ontario Appeal Court in the Canadian Foundation case supra. The latter court did not acknowledge that s. 43 "justifies" rather than merely "excuses" corrective corporal punishment of a child using reasonable force ( Goudge, J.A.:"The section does not approve or encourage such punishment" Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) [2000] Ont. ACJ Docket No. C34749, paragraph 49). With respect, it is for this reason that the Appeal Court in the Canadian Foundation case erred in minimizing the role of the State when a parent, parental delegate or teacher applies corporal punishment against a child: "By enacting the section, the State cannot be said to either inflict the physical punishment or be responsible for its infliction (Canadian Foundation for Children Youth and the Law v Canada (Attorney General ) [2000] Ont ACJ Docket No. C34749 at paragraph 54). 37. In the next section, we consider the final element in the section one test for proportionality as applied to s. 43 of the Canadian criminal code. That element it is to be recalled concerns whether the deleterious effects of s. 43 are outweighed by any benefit to be derived from attaining the objective sought and whether or not the measure used is the least restrictive available. Are the negative effects of Section 43 outweighed by the objective attained and is the measure used the least restrictive available? 38. In the preceding we have considered the negative consequences of s. 43 which include the following: o the condoning of corporal punishment through the reference to "justified" use of "corrective force" in the text of s. 43 despite corporal punishment being a context with an increased risk of substantial physical injury to the child. In this regard, consider that in a s. 43 case thus the State is prosecuting a case partly of its own making; o reinforcement of notions (i.e. the justified use of "corrective force" against a child) that support the perpetuation of family violence and thus undermine the integrity of the family; o creating inconsistency in the law such that the same act is considered a justifiable infringement on the child's security of the person right under the criminal code but an unlawful infringement constituting child abuse in the protection context. This then sends a very confused message to the community regarding what constitutes "reasonable force" and what is the value of corporal punishment as a disciplinary technique with children; o unconstitutional denial of the child's general right to security of the person and substitution of a limited underinclusive right to protection from the use of excessive force. 39. In addition, we have seen that corporal punishment does not adequately meet its goal of correction, and creates a risk for escalating violence given its lack of efficacy in modifying behavior longer term. It is also well-established that there are more effective disciplining strategies available. Furthermore, the issue of the criminalization of parents for the use of trivial force has been shown to be something of a 'red herring' given: a) the international evidence of no increase in criminal prosecutions of parents for the use of non-abusive force against the child following a ban on corporal punishment of the child; and b) the existence of a range of possible options regarding consequences for violation of the ban on the use of corporal punishment of a child some of which involve no criminal prosecution. 40. It would seem that section 43 persists in the Canadian criminal code not due to any benefit to the child or society, but due to archaic notions about the alleged incorrigible nature of the child combined with a gross underestimate of the young child and middle school child's capacity for basic reasoning (note that 3-12 is the age range identified by the Ontario Appeal Court in the Canadian Foundation case supra as that to which the child subjected to corporal punishment ought to belong). Section 43 thus fails the section one test since it does not achieve State objectives and creates substantial societal harms by undermining core Charter values. These values relate to respect for the human dignity of all. In the concluding section is considered further in what way s. 43 is inimical to a free and democratic society. Conclusion: Section 43 as Inimical to a Free and Democratic Society 41. Justice Dickson in R v Oakes points out that: The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which the limit on a right or freedom must be shown, despite its effects, to be reasonable and demonstrably justified ... ( (R v Oakes [1986] 1 S.C.R. 103 at paragraph 64). 42. Corporal punishment of a child is not consistent with the values underlying a free and democratic society since such a society seeks to protect the fundamental human rights of the vulnerable not to legislate them away. Section 43 in negating the child's general guarantee of security of the person immeasurably weakens the democratic principles underpinning the Charter. Corporal punishment is, furthermore, a bar to the child's democratic participation in society. A prerequisite for such participation is that the child be regarded as an individual in his or her own right, with distinct interests and an independent and equal claim to human dignity. L'Heureux-Dube in Young v Young alluded to the child's independent right to security of the person when she held that: 43. The power of the custodial parent is not a "right" with independent value granted by courts for the benefit of the parent. Rather, the child has the right to a parent who will look after his or her best interests and the custodial parent a duty to ensure, protect and promote the child's best interests (Young v Young [1993] 4 S.C.R. 3, case summary; emphasis added). 44. The liberty interest of the parent, or parental delegate as regards the child is thus but the vehicle through which the child's independent interests as a member of a free and democratic society are expressed given the child's immature developmental status. Section 43, however, regards the parental liberty interest as overriding the child's inclusive right to security of the person thus negating the child's status as a person with an independent claim to the general guarantees under s.7 of the Charter. 45. Section 43 represents the State's creation of a legal foundation for the denial of the child's equal right to an inclusive Charter guarantee to security of the person. Section 43 operates in effect as would an Act of Parliament which invoked the notwithstanding clause under s. 33 (1) of the Charter in regard to the infringement of the child's inclusive right to security of the person. It would, however, not be politic to highlight through the invocation of the notwithstanding clause that children in Canada are not to be accorded the same respect for their bodily and psychological integrity under the Canadian Charter of Rights and Freedoms (1982) as are other persons in the society. Yet, this is precisely the situation given that section 43 still has full force and effect despite its failure to meet the section 1 test. Endnotes * Since the writing of this paper, the Supreme Court of Canada released its decision with the majority ruling that the s. 43 defense is constitutional and among other things that: "it is not a principle of fundamental justice that laws affecting children must be in their best interests" (case summary) . Indeed the majority view was that: "'bests interest of the child' fails to meet the ...criterion for a principle of fundamental justice: consensus that the principle is vital or fundamental to our societal notion of justice" (at paragraph 10). Thus the struggle will continue for the realization of children's rights in this most fundamental area of security of the person and more generally, until children's rights and best interests are considered integral to Canadian society's notion of justice. The litigants in Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) recently heard by the Supreme Court of Canada with judgment reserved are as follows: The Applicant: Canadian Foundation for Children, Youth and the Law also known as "Justice for Children and Youth" is a non-profit legal aid clinic providing legal representation to poor and disadvantaged children in Toronto and surrounding area. The Respondent: The Attorney General in Right of Canada (AG) took the position that s. 43 is a necessary part of the Canadian Criminal Code in that it protects parents and others duly authorized to apply "corrective" and "reasonable" force to a child from being improperly criminalized. The AG of Canada also held that the existing provincial child protection laws in Canada are adequate to protect Canadian children from physical abuse. Interveners * The Canadian Teachers' Federation (CTF) - The CTF is a conglomerate of 14 provincial and territorial teachers organizations across Canada representing 240, 000 teachers in Canada nationwide. The CTF argued for retention of the s.43 defense even though the group does not support the use of corporal punishment. The CTF argued that the decision before the court was to decide if teachers and parents may use reasonable force other than corporal punishment for corrective purpose with children. * The Coalition for Family Autonomy - This coalition is comprised of the Canada Family Action Coalition (CFAC), REAL Women of Canada, the Home School Legal Defense Association of Canada and the Focus on the Family group. This coalition argued for retention of s. 43. The Coalition for Family Autonomy maintained that abolishing s. 43 would result in an infringement of parental liberty rights regarding child rearing and also that current child protection laws in Canada are adequate to address any concerns. * The Ontario Association of Children's Aids Societies (OACAS)- The OACAS represents 51 children's aid societies in Ontario, Canada and is funded through membership fees and government grants.. This group addresses welfare issues in terms of policy development, research and liaises with government as well as directly serving the public in various ways. The OACAS intervened in the Canadian Foundation case to plead for elimination of the s. 43 defense The OACAS argued that current child protection laws in Canada are reactive and not sufficient to protect children from harm. Rather the repeal of s. 43, the OACAS argued, is also a necessity if Canadian children's security of the person is to be better protected. 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(3rd) 662 Children's Aid Society of the Regional Municipality of Waterloo v S.D [1995] O.J. No. 1636 Egan v Canada [1995] 2 S.C.R. 513 Nova Scotia (Ministry of Community Services) v B.M [1998] N.S.J. No.186 Plonit v A.G Israeli Supreme Court Criminal Appeal 4596/98, 54(1) P.D. 145 R v Levesque [2001] ABQB 822 R v Oakes [1986] 1 S.C.R. 103 Winnipeg Child and Family Services v K.L.W [2000] 2 S.C.R. 519 Young v Young [1993] 4 S.C.R. 3, Canadian Legislation Alberta Domestic Relations Act RSA 2000 Section 1 Chapter D-14 Canadian Criminal Code R.S.C. 1985 c. C-46 Nova Scotia Children and Family Services Act, S.N.S. 1990, c.5 International Legislation Swedish Parenthood and Guardianship Code (1979). See Global Initiative to End Corporal Punishment of All Children at http://endcorporalpunishment.org/pages/progress/prohib_states.html for a discussion of various family law codes including the Austrian Family Law and Youth Act, Danish Parent Custody and Care Act, Swedish Parenthood and Guardianship Code as well as recent decisions worldwide on corporal punishment of children (Retrieved May 1, 2003 from the world wide web).