Section 43 of the Criminal Code (Corporal Punishment)

The Canadian Foundation for Children, Youth and the Law v. The Attorney General of Canada

On January 30, 2004, the Supreme Court of Canada released its decision in the case of Canadian Foundation for Children, Youth and the Law v. The Attorney General in Right of Canada, which concerns the use of force by parents and teachers to correct a child. This fact sheet provides a summary of the case. The decision itself is available online at: http://www.canlii.org/ca/cas/scc/2004/2004scc4.html.

Issue Before the Supreme Court of Canada

The issue before the Supreme Court of Canada was whether s.43 of the Criminal Code of Canada is unconstitutional. Section 43 provides that a parent, teacher or person acting in the place of a parent is justified in using force to correct a child that is under his or her care provided that the force used is reasonable in all of the circumstances.

Decision

The Supreme Court of Canada decided that section 43 of the Criminal Code is constitutional; it found that section 43 does not violate a child’s rights to security of the person and equality, and is not cruel and unusual punishment. More specifically, the Supreme Court held that section 43 ensures that the criminal law applies to any use of force that harms a child, but does not apply where the use of force “is part of a genuine effort to educate the child, poses no reasonable risk of harm that is more than transitory and trifling, and is reasonable under the circumstances.”

Position of the Parties

The Canadian Foundation for Children, Youth and the Law, argued that section 43 violates children’s Charter rights to security of the person, equality and that section 43 constituted cruel and unusual punishment. The Attorney General of Canada argued that section 43 reflects a fair balance between the interests of children, parents and Canadian society. Although the federal government does not condone the physical discipline of children, neither does it support the criminalization of parents for disciplinary conduct which is undertaken in a reasonable way and takes into account the needs and best interests of children.

History of the Case

In November 1998, the Canadian Foundation for Children, Youth and the Law sought a declaration in Ontario that section 43 violates sections 7 (security of the person), 12 (cruel and unusual punishment), and 15 (equality) of the Canadian Charter of Rights and Freedoms and that it conflicts with Canada’s obligations under the United Nations’ Convention on the Rights of the Child. Section 43 is a limited defence; it provides that a parent, teacher or person acting in the place of a parent is justified in using force to correct a child that is under his or her care, provided that the force used is reasonable in all the circumstances.

The federal government defended against the Charter challenge and was supported by the Canadian Teachers’ Federation and the Coalition for Family Autonomy (Focus on the Family, the Canadian Family Action Coalition, the Home School Legal Defence Association of Canada, and REAL Women of Canada). The Canadian Foundation’s position was supported by the Ontario Association of Children’s Aid Societies.

In its decision of July 5, 2000, the Ontario Superior Court of Justice upheld the constitutionality of section 43 and found that it was consistent with Canada’s obligations under the United Nations’ Convention on the Rights of the Child. It held that the current test to determine the applicability of section 43 reflects a reasonable balance of the Charter interests of children, parents and Canadian society. This test involves an examination of a variety of factors including the age and character of the child, the nature of the child’s behaviour calling for correction, the degree and gravity of the punishment, and the circumstances under which the force was applied. These factors are assessed against the contemporary Canadian community’s standard of reasonableness and not against the rules or practices of an individual family. The court provided additional guidelines, based on expert evidence led in the case, to aid in interpreting and applying section 43 in accordance with the Charter. These guidelines relate to the corporal punishment of very young children and teenagers, the use of objects in corporal punishment, injury, and effective alternatives to corporal punishment, among others.

On January 15, 2002, the Ontario Court of Appeal upheld the lower court’s decision and dismissed the appeal. This decision was appealed to the Supreme Court of Canada, which heard the appeal on June 6, 2003 and reserved judgment.

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January 30, 2004