Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4, 2004 SCC 4 (2004)

Canadian Foundation for Children, Youth and the Law v. Canada

(Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4

Canadian Foundation for Children, Youth and the Law Appellant v.

Attorney General in Right of Canada Respondent and

Focus on the Family (Canada) Association, Canada Family

Action Coalition, Home School Legal Defence Association of Canada and REAL Women of Canada, together forming the

Coalition for Family Autonomy, Canadian Teachers' Federation,

Ontario Association of Children's Aid Societies, Commission des droits de la personne et des droits de la jeunesse, on its own behalf and on behalf of Conseil canadien des organismes provinciaux de défense des droits des enfants et des jeunes,

and Child Welfare League of Canada Interveners

Indexed as: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)

Neutral citation: 2004 SCC 4.

File No.: 29113.

2003: June 6; 2004: January 30.

Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.

on appeal from the court of appeal for ontario

Constitutional law - Charter of Rights - Fundamental justice - Vagueness - Corporal punishment - Section 43 of Criminal Code justifying use of reasonable force by parents and teachers by way of correction of child or pupil - Whether provision unconstitutionally vague or overbroad - Canadian Charter of Rights and Freedoms, s. 7 - Criminal Code, R.S.C. 1985, c. C-46, s. 43.

Constitutional law - Charter of Rights - Cruel and unusual punishment - Corporal punishment - Section 43 of Criminal Code justifying use of reasonable force by parents and teachers by way of correction of child or pupil - Whether provision infringes right not to be subject to cruel and unusual treatment or punishment - Canadian Charter of Rights and Freedoms, s. 12 - Criminal Code, R.S.C. 1985, c. C-46, s. 43.

Constitutional law - Charter of Rights - Equality rights - Children - Corporal punishment - Section 43 of Criminal Code justifying use of reasonable force by parents and teachers by way of correction of child or pupil - Whether provision infringes right to equality - Canadian Charter of Rights and Freedoms, s. 15(1) - Criminal Code, R.S.C. 1985, c. C-46, s. 43.

Section 43 of the Criminal Code justifies the reasonable use of force by way of correction by parents and teachers against children in their care. The appellant sought a declaration that s. 43 violates ss. 7, 12 and 15(1) of the Canadian Charter of Rights and Freedoms. The trial judge and the Court of Appeal rejected the appellant's contentions and refused to issue the declaration requested.

Held (Binnie J. dissenting in part; Arbour and Deschamps JJ. dissenting): The appeal should be dismissed.

Per McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache and LeBel JJ.: Section 43 of the Criminal Code does not offend s. 7 of the Charter. While s. 43 adversely affects children's security of the person, it does not offend a principle of fundamental justice. First, s. 43 provides adequate procedural safeguards to protect this interest, since the child's interests are represented at trial by the Crown. Second, it is not a principle of fundamental justice that laws affecting children must be in their best interests. Thirdly, s. 43, properly construed, is not unduly vague or overbroad; it sets real boundaries and delineates a risk zone for criminal sanction and avoids discretionary law enforcement. The force must have been intended to be for educative or corrective purposes, relating to restraining, controlling or expressing disapproval of the actual behaviour of a child capable of benefiting from the correction. While the words "reasonable under the circumstances" on their face are broad, implicit limitations add precision. Section 43 does not extend to an application of force that results in harm or the prospect of harm. Determining what is "reasonable under the circumstances" in the case of child discipline is assisted by Canada's international treaty obligations, the circumstances in which the discipline occurs, social consensus, expert evidence and judicial interpretation. When these considerations are taken together, a solid core of meaning emerges for "reasonable under the circumstances", sufficient to establish a zone in which discipline risks criminal sanction.

The conduct permitted by s. 43 does not involve "cruel and unusual" treatment or punishment by the state and therefore does not offend s. 12 of the Charter. Section 43 permits only corrective force that is reasonable. Conduct cannot be at once both reasonable and an outrage to standards of decency.

Section 43 does not discriminate contrary to s. 15(1) of the Charter. A reasonable person acting on behalf of a child, apprised of the harms of criminalization that s. 43 avoids, the presence of other governmental initiatives to reduce the use of corporal punishment, and the fact that abusive and harmful conduct is still prohibited by the criminal law, would no...

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