Nowhere to Stand: Correction by Force in the Supreme Court of Canada
| Author | Anne McGillivray |
| Pages | 57-76 |
57
Nowhere to Stand: Correction by Force in the
Supreme Court of Canada
Chasten thy s on while there is hope, a nd let not thy soul spare for hi s crying.
Proverbs :
Every school teac her, parent or person standi ng in the plac e of a parent
is just ied in using force by way of correction toward a pupil or c hild, as
the case may be , who is under his car e, if the force does not excee d what is
reasonable in t he circumsta nces.
Criminal Code
. . . it’s just
A famil y tradition
e strengt h of this land
Where what ’s right and wrong
Is the back of a hand
Turns girls i nto women
A boy to a man
But the right s of the children
Have nowhere to stand .
k.d. lang,
e verse “ has probably bee n responsible fo r more physical pa in than a ny other sentence
ever wr ien.” Northr op Frye, e Gre at Code: e Bible a nd Literature (Toronto:
Harcou rt Brace Jova novich, ) at . Twelve v erses exhor t corpora l punishme nt but
“spare the ro d” is not among t hem. It comes fr om Samuel Butle r’s sexual sat ire Hudibra s
(): “Love is a boy by poe ts stil’ d; en spare t he rod, and spoil t he child.”
Criminal Code , RSC – , c. , s. .
k.d. lang a nd e Recline s, “Nowhere to Sta nd,” Absolute Torch an d Twang (Prod. Greg
Penny, Ben Mi nk, and k.d . lang. Sire R ecords, May ).
58
e United Nations Co nvention on the Rights of the Child requ ires that
the child be protected from “all forms of physical or mental violence” a nd
from “cruel, inhuman or deg rading treatment or punishment.”
e Charter
guara ntees equal protection and equal benet of the law to ever yone, chil-
dren included. Consistent a nd cumul ative resea rch shows the inutility of
corporal pun ishment. Canada’s constitutionally f rail “spanking law,” section
of t he Criminal Code, was ripe for challenge. e Canadian Foundation
for Child ren, Youth a nd the Law challenged the law by way of stated c ase in
the Ontar io courts and the Supreme Court of Canada, arg uing that section
breaches children’s ri ghts to security of the person, freedom from cr uel
or unusual punis hment, and f reedom from age-based discrimi nation. I n
, McLac hlin CJ found t hat section violates no r ight of the child. e
decision i n Canadian Found ation for Children , Youth and the Law v. Canada
(Aorney General) was vigorously denounced in dissenting judgments by
Binnie, A rbour, and Deschamps JJ and i n numerous academic articles.
Can. T.S. No , arts. () and . See al so the Conven tion on the Elim ination of Al l
Forms of D iscrimina tion agains t Women, Can. T.S. No ; and the International
Covenan t on Civil and Poli tical Right s, Can. T.S. No .
C anadian Cha rter of Righ ts and Freedom s, Part I of the C onstitut ion Act, , b eing
Schedule B t o the Canada Ac t (UK), , c. , s . () [Charter]: “Every ind ividual
is equal b efore and under t he law and has t he right to the eq ual protect ion and equal
benet of the l aw without di scrimi nation and, i n particu lar, without d iscrim ination
based on rac e, national or e thnic orig in, colour, rel igion, sex, a ge or mental or phys ical
disabi lity.” Section () makes a n exception f or programs w hose object is to a meliorate
condition s of inequal ity aris ing from dis advantage s such as age.
RSC , c. C-.
Cana dian Founda tion for Childr en, Youth and the L aw v. Canada (Aor ney General),
SCC [Foundation], a’g (), OR (d) (CA), a’g (), OR (d)
(SCJ). Appeal di smissed, Bi nnie J dis senting in pa rt and Arb our and Descha mps JJ
dissent ing. e Founda tion operates t he Toronto law clinic J ustice for Ch ildren and
Youth, which p rovides lega l service s to children , advocates for l aw and system r eform,
and seek s “to furth er Canada’s compli ance with it s obligations t o children u nder
intern ational law, in pa rticul ar with th e United Nations C onvention on th e Rights of
the Child ,” Mission stat ement, onli ne: www.jfc y.org. e Court Ch allenges P rogram
provided s tart-up fu nding on the app lication of Dr. A ilsa Watk inson, Facu lty of Socia l
Work, Univer sity of Reg ina.
Amon g others, see Joan E . Durrant et al ., “Protect ion of Child ren from Physic al Mal-
treatme nt in Canada: A n Evaluat ion of the Supreme Cou rt’s Denit ion of Reasona ble
Force” () : J Agg ression, Ma ltreatment & Trau ma [Durant et al ., “Protect ion
of Child ren”]; Rory O’Con nell, “e Ro le of Dignit y in Equali ty Law: Les sons from
Canada a nd South Af rica” () : Int’ l J Constitut ional L ; Jo an E. Durr ant et
al., “Wh at Did the Cana dian Publ ic Learn fro m the Supreme C ourt Decis ion on
Physica l Punish ment?” () : Int’ l J Child Rt s ; Mark Ca rter, “‘Debun king’ Pa r-
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