- Decision
Supreme Court upheld decision by the Court of Appeal and dismissed the appeal, holding that Section 42 of the Criminal Code did not infringe upon Sections 7, 12 and 15(1) of the Charter.
- Ratio Decidendi
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Section 43 of the Criminal Code does not violate Section 7 of the Charter of Rights and Freedoms.
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Section 43 of the Criminal Code does not violate Section 12 of the Charter.
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Section 43 of the Criminal Code does not violate Section 15(1) of the Charter.
- Reasons
- Although Section 43 affected children's security, it did not cause offence the principle of fundamental justice, as there were sufficient procedural protections within Section 43 to care for children's interests.
- Fundamental justice did not require that laws affecting children be in their best interests, and Section 43 set genuine boundaries, defines a risk zone for criminal sanctions, and avoided discretionary law enforcement.
- The force used must have been ‘reasonable under the circumstances,’ and Section 43 did not extend to the use of force resulting in harm or the prospect of harm.
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The force must have been used only for educational or corrective purposes, relating to restraining, controlling, or expressing disapproval of the actual behaviour of a child that is able of benefiting from the correction.
- The behaviour allowed in Section 43 was not cruel and unusual treatment or punishment. It was not possible for the force used to be an infuriation to standards of decency.
- Abusive and harmful conduct is still prohibited by the criminal law; therefore a child’s dignity has not been offended.
- Commentary
Dissenting in part, Justice Binnie found that Section 42 of the Criminal Code had infringed on children’s equality rights protected in Section 15(1) of the Charter. Section 43 denied children protection of the criminal law, which would have been available to an adult if such actions had been carried out against an another adult. However, Section 1 of the Charter saved the violation of children's rights under Section 15 of the Charter, with respect to parents and people standing in the place of parents. Section 1 of the Charter could not be used to justify the application of Section 43 to teachers.
In dissenting, Justice Arbour contends that the law should be overturned. In order to make Section 43 acceptable under the Charter, the majority has to read down the law in which the implied law is not actually contained in the text. Arbour concludes that the Court should not do that. He says that the reading down of a statutory defence amounts to an abandonment by the courts of their proper role in the criminal process. Section 43 as it is actually written is unconstitutionally vague, and, as such, it violates Section 7 without being saved by Section 1. Parliament should write a new law, setting down exactly what kind of corporal punishment they believe should be allowed, instead of just leaving it up to “reasonable under the circumstances.”
In dissenting, Justice Deschamps concluded that children’s equality under Section 15(1) of the Charter were violated by Section 43, and should be struck down, because it distinguished between children and adults, and that differentiation amounted to discrimination against children, which violated children's dignity. The infringement under Section 15(1) of the Charter could not be justified in accordance with Section 1 of the Charter, as it did not provide a reasonable limit. He suggested it could have been defined to include only minor use of force on children, rather than a broad range of force, which has less obtrusive means that would enable parents and teachers to carry out their educational and caring responsibilities, in the opinion of Deschamps.
The majority decision of the Supreme Court, in my perspective, was sound. They correctly used the Law test to come to the conclusion that Section 43 was in no violation of the Charter. Children are equal in the eyes of the law, in respect to abuse and unreasonable force. Children need to be disciplined in a way that will benefit their socialization now and when grown into adulthood. They need to know boundaries of what behaviour is permitted, and not permitted, with the discretion of the parents, and it is not the government's decision on how parents are allowed to discipline their own children with fear of criminal sanctions.
This case is most relevant to my research question and topic, because this case is the very reason for conducting research in this area. This case sets in stone that Section 43 of the Criminal Code is allowed, and my research question is how this very decision implicates society as a whole.
- Relevant Case
R. v. B.W.W., [2009] A.J. No. 672 (ABPC) (QL).
This case was heard and decided after the decision of the Supreme Court to uphold Section 43 of the Criminal Code. This case shows how the lower level courts have implemented the spanking case decision, and using the binding new law to regulate what is and is not allowed set out by the Supreme Court. This shows how the new laws have impacted and implicated the lives of families in our current society. It’s important to see how the lower level courts applied the new laws to show if these decisions were allowing the use of assault on children.
- List of Cases
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Followed in Trang v. Alberta
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Considered in R. v. Warren
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Followed in R. v. Maddison
- Precedent Case
R v. Ogg Moss, (1984), 11 D.L R. (4th) 549 (S.C.C).
The Supreme Court’s decision included using the Ogg Moss case to specify and define the vague areas of Section 43 of the Criminal Code. This case specifies who is considered to be a parent or teacher under Section 43 of the Criminal Code, which was followed by the Supreme Court's decision that ‘person standing in the place of a parent’ was held in the Ogg Moss case in order to indicate an individual who has assumed all of the obligations of parenthood, as well as following the cases application of what a child is in Section 43, which means that a person is chronologically younger than the age of majority. It also specifies that the force used is only for educative or corrective purposes, cannot be used during an outburst of anger, and are designed to restrain, control or express symbolic disapproval for the behaviour in question. Finally, the Supreme Court used the commentary in the Ogg Moss case in order to specify what ‘rightful’ means were in relation to corrective discipline. The Supreme Court found these definitions to be proper, and followed them throughout the case. The Ogg Moss case was considered as highly persuasive to the Supreme Court, due to the fact that this case was the only precedent in specifically defining Section 43 of the Criminal Code.