Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)
Encyclopedia
Canadian Foundation for Children, Youth and the Law v. Canada, [2004] 1 S.C.R. 76, 2004 SCC 4 - known also as the spanking case - is a leading Charter
decision of the Supreme Court of Canada
where the Court upheld section 43 of the Criminal Code of Canada
that allowed for a defence for assaulting children as not in violation of section 7
, section 12
or section 15(1)
of the Charter.
The basis of which is because the provision violates:
The majority opinion was written by Chief Justice McLachlin
with Gonthier, Iacobucci, Major, Bastarache and LeBel JJ. concurring.
, so the issue was whether the violation offended a principle of fundamental justice
. The Foundation proposes three claims as mentioned above. McLachlin rejected the first claim that it failed to give procedural protection as children receive all the same protection as anyone else. On the second claim, she rejects that the "best interests of the child" is a principle of fundamental justice as there is no "consensus that it is vital or fundamental to our societal notion of justice."
On the third claim she rejects the claim that the law is vague and overbroad on grounds that the law "delineates a risk zone for criminal sanction". She examines the meaning of "reasonable under the circumstances" stating that it includes only "minor corrective force of a transitory and trifling nature", but it does not include "corporal punishment of children under two or teenagers", or "degrading, inhuman or harmful conduct" such as "discipline by the use of objects", "blows or slaps to the head" or acts of anger. The test is purely objective, McLachlin claims.
When identifying from whose perspective the analysis must be, McLachlin notes that rather than take the perspective of a young child, which would prove too difficult, it must be viewed from the perspective of a "reasonable person acting on behalf of a child" and apprised of the law.
McLachlin says that the claim hinges on demonstrating the lack of "correspondence between the distinction and the claimant's characteristics or circumstances" (the second contextual factor from the Law v. Canada test). On this point she acknowledges that children need to be protected, and in furtherance of this goal parents and teachers require protection as well. Section 43 decriminalizes "only minimal force of transient or trivial impact" and to remove such protection would be dangerous as it would criminalize acts such as "placing an unwilling child in a chair for a five-minute "time-out"" which would risk destroying the family.
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
decision of the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
where the Court upheld section 43 of the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
that allowed for a defence for assaulting children as not in violation of section 7
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
, section 12
Section Twelve of the Canadian Charter of Rights and Freedoms
Section Twelve of the Canadian Charter of Rights and Freedoms, as part of the Charter and of the Constitution of Canada, is a legal rights section that protects an individual's freedom from cruel and unusual punishments in Canada. The section has generated some case law, including the essential...
or section 15(1)
Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
of the Charter.
Background
The Canadian Foundation for Children, Youth and the Law ("Foundation") applied for a declaration to strike-down section 43 of the Criminal Code which states, under the section entitled "Protection of Persons in Authority",- 43. 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.
The basis of which is because the provision violates:
- section 7 of the Canadian Charter because it fails to give procedural protections to children, does not further the best interests of the child, and is both overbroad and vague;
- section 12 of the Charter because it constitutes cruel and unusual punishment or treatment;
- section 15(1) of the Charter because it denies children the legal protection against assaults that is accorded to adults.
Ruling
The Supreme Court handed down its 6 to 3 decision on January 30, 2004.The majority opinion was written by Chief Justice McLachlin
Beverley McLachlin
Beverley McLachlin, PC is the Chief Justice of Canada, the first woman to hold this position. She also serves as a Deputy of the Governor General of Canada.-Early life:...
with Gonthier, Iacobucci, Major, Bastarache and LeBel JJ. concurring.
Section 7
Section 7 protects individuals from violation of their personal security. McLachlin found that there was no violation of section. The Crown had conceded that the law adversely affected the child's security of personSecurity of person
Security of the person is a basic entitlement guaranteed by the Universal Declaration of Human Rights, adopted by the United Nations in 1948. It is also a human right explicitly mentioned and protected by the Constitution of Canada, the Constitution of South Africa and other laws around the...
, so the issue was whether the violation offended a principle of fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
. The Foundation proposes three claims as mentioned above. McLachlin rejected the first claim that it failed to give procedural protection as children receive all the same protection as anyone else. On the second claim, she rejects that the "best interests of the child" is a principle of fundamental justice as there is no "consensus that it is vital or fundamental to our societal notion of justice."
On the third claim she rejects the claim that the law is vague and overbroad on grounds that the law "delineates a risk zone for criminal sanction". She examines the meaning of "reasonable under the circumstances" stating that it includes only "minor corrective force of a transitory and trifling nature", but it does not include "corporal punishment of children under two or teenagers", or "degrading, inhuman or harmful conduct" such as "discipline by the use of objects", "blows or slaps to the head" or acts of anger. The test is purely objective, McLachlin claims.
Section 12
Section 12 prevents "cruel and unusual punishment". Citing the standard of showing cruel and unusual punishment from R. v. Smith [1987] 1 S.C.R. 1045 as "so excessive as to outrage standards of decency", McLachlin rejects the claim as the section only permits "corrective force that is reasonable" thus cannot be excessive by definition.Section 15(1)
Section 15(1) is the equality guarantee that protects individuals from discrimination. McLachlin examines the claim using the analytical framework from Law v. Canada.When identifying from whose perspective the analysis must be, McLachlin notes that rather than take the perspective of a young child, which would prove too difficult, it must be viewed from the perspective of a "reasonable person acting on behalf of a child" and apprised of the law.
McLachlin says that the claim hinges on demonstrating the lack of "correspondence between the distinction and the claimant's characteristics or circumstances" (the second contextual factor from the Law v. Canada test). On this point she acknowledges that children need to be protected, and in furtherance of this goal parents and teachers require protection as well. Section 43 decriminalizes "only minimal force of transient or trivial impact" and to remove such protection would be dangerous as it would criminalize acts such as "placing an unwilling child in a chair for a five-minute "time-out"" which would risk destroying the family.