The Constitutional Validity of the Corporal Punishment Defence in Canada: A Critical Analysis of Canadian Foundation for Children, Youth and the Law Versus Canada (Attorney General)
| Author | Mark Carter |
| Published date | 01 May 2005 |
| Date | 01 May 2005 |
| DOI | 10.1177/026975800501200205 |
International
Review
ofVictimology,
2005,
Vol.12,
pp.l89-211
0269-7580/05
$10
© A B
Academic
Publishers
-Printed
in
Great
Britain
THE
CONSTITUTIONAL
VALIDITY
OF
THE
CORPORAL
PUNISHMENT
DEFENCE
IN
CANADA:
A
CRITICAL
ANALYSIS
OF
CANADIAN
FOUNDATION
FOR
CIDLDREN,
YOUTH
AND
THE
LAW
VERSUS
CANADA
(ATTORNEY
GENERAL)
MARK
CARTER*
College
of
Law,
University
of
Saskachewan,
Canada
ABSTRACT
In
Canadian
Fowulation
for
Children,
Youth
and
the
Law
Versus
Canada
the
Supreme
Court
rejected
the
Foundation's
arguments
that
the
corporal
punishment
defence
denies
children
rights
that
are
guaranteed
to
them
under
the
Canadian
Charter
of
Rights
and
Freedoms.
The
author
argues
that
among
the
unfortunate
aspects
of
the
Court's
decision
is
the
extent
to
which
it identifies
the
perpetrators of
violence
against
children,
rather
than
the
children
themselves,
as
the
most
deserving
recipients
of
concern
about
victimization
in
the
debate
over
the
retention
of
the
corporal
punishment
defence.
By
failing
to
extend
basic
human
rights
protections
to
our
most
vulnerable
citizens,
the
Foundation
decision
raises
troubling
questions
about
the
effectiveness
of
the
Charter
and
the
relationship
of
Charter
litigation
to
other
law
reform
strategies.
INTRODUCTION
Canada's corporal punishment
defence,
contained
in
section
43
of
the
Criminal
Code,
provides:
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.
1
* I
would
like
to
thank
Dr.
Ailsa
Watkinson,
Faculty
of
Social
Work,
University
of
Regina
for
initiating
the
Charter
challenge
of
section
43,
and
for
remaining
an
inspiration in
the
continuing
effort
to
have
the
corporal
punishment
defence
repealed.
My
thanks
as
well
to
Professor
Anne
McGillivray,
College
of
Law,
University
of
Manitoba,
Canada's leading
legal
scholar
in
this
area.
Professor
McGillivray
generously
shared
with
me
her
ideas
about
how
the
Foundation
decision
inverts
the
relationship
between
victim
and
aggressor
in
the
corporal
punishment
context.
I
also
benefited
from
the
careful
reading
and
constructive
comments
of
two
anonymous
referees.
All
errors
and
shortcomings
are
the
author's
own.
190
In
January
2004
the
Supreme
Court
of
Canada
released
its
decision
in
Canadian
Foundation
for
fhildren,
Youth
and
the
Law
versus
Canada
(Attorney
General)
['Foundation'].
The
decision
brought
to
an
unsuccessful
end
the
attempt
by
children's
rights
advocates
in
Canada
to
have
the
courts
declare
the
defence
of
no
force
and
effect.
In
her
majority
decision
for
six
of
the
nine
judges
on
the
Court,
Chief Justice
McLachlin
rejected
the
Foundation's
argument
that
the
corporal
punishment
defence
unreasonably
infringes
the
rights
~f
children
as
guaranteed
by
the
Canadian
Charter
of
Rights
and
Freedoms.
The
majority
decision
did,
how-
ever,
provide
a
framework
for
its
understanding
of
what
will
constitute
the
'reasonable'
use
of
force
by
way
of
correction,
4
which
has
been
welcomed
by
some
as
a substantial
narrowing
of
the
scope
of
the
defence.
5
The
framework
attempts
inter
alia
to
restrict
the
nature
of
the
force
that
may
be
used under
section
43,
to
exclude
infants
and
teenagers
as
recipients
of
that
force,
and
to
prevent
teachers
from
using
force
merely
as
punishment.
Unfortunately,
notwithstanding
the
fact
that
the
majority
decision
repeatedly
speaks
in
terms
of
how
section
43
'does'
~revent
the
excessive
use
of
force
against
children, it
has
always
failed
to
do
so.
Rearticulating
old
limits
on
the
defence
and
introducing
a
few
new
ones
can
not
be
expected
to
remedy
this
historic
failure.
Furthermore,
none
of
this
judicial creativity
diminishes
the
extent
to
which
a
law
that
allows
the
victimization
of
innocent
third
parties
on
the
basis
of their
young
age
and
dependent
social
status
stands
in
profound
contradiction
to
the
most
basic
human
rights
principles.
The
Foundation
case
involved
human
rights
violations
that
are
as
clear
as
any
that
the
Supreme
Court
has
been
asked
to
review
since
the
Charter
became
part
of
the
Constitution
in
1982.
Accordingly,
the
decision
demonstrates
serious
limitations
on
the
Charter's
ability
to
operate
as
a
vehicle
for
protecting
the
rights
of
the
most
vulnerable
peop!e
in
Canadian
society.
The
case
also
raised
questions
about
the
relative
benefits
and
liabilities
of
law
reform
strategies
that
focus
upon,
and
invest
huge
resources
in,
Charter
litigation
at
the
expense
of
public
education
and
political
lobbying
activities.
In
this
respect,
Mark
Tushnet
has
warned
that
'[i]n
the
rhetoric
of
politics
...
while
rights-claims
that
are
vindicated
are
extremely
important,
those
that
are
rejected
are
[no
longer
con-
sidered]
ordinf!!
policy
claims
but
are,
instead,
[treated
as
being]
completely
unimportant'. If
the
ordinary
political
process
is
now
the
only
avenue
that
is
left
to
reformers,
then
we
may
be
further
behind
than
we
were
before
the
courts
were
asked
to
review
the
constitutionality of
the
corporal
punishment
defence.
8
Section
1 of
the
Charter
allows
the
rights
and
freedoms
that
it
guarantees
to
be
subjected
to
'reasonable limits' .9
These
limits
are
a
kind
of 'necessary evil'
that
a rights-respecting
society
has
to
allow,
in
certain
circumstances,
in
order
to
permit
the
legislative
branch
of
government
to
pursue
important utilitarian
objectives.
The
majority
decision
in
the
Foundation
case
is
remarkable
for
the
fact
that it
does
not
even
concede
that
the
corporal
punishment
defence
repre-
sents
this
kind
of
necessary
evil:
an
unfortunate
limitation
of children's
rights
but
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