Poste - Canadian Coalition for the Rights of Children

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C A N A D I A N C O A L I T I O N F O R T H E R I G H T S O F C H I L D R E N object of the contact here was the son of the accused, then special rules apply. First, if the force used was for the purpose of correction, and second, if the force did not exceed what was reasonable in the circumstances, then assault cannot be regarded as criminal. This exemption from the normal law regarding assaults exists because children are a special class of citizens: they are singled out as the only minority against whom assaults by way of correction are legal as long as the force used does not exceed what is reasonable under the circumstances. 68 Justice Weagant further states that: • there is some variance across the country with the legal test to demonstrate whether the force used was excessive; 69 • the child has absolutely no due process at all; 70 • Section 43 is in direct conflict with the UN Convention on the Rights of the Child; 71 and • “I think this is an area that begs for legislative reform.” 72 The Canadian Charter of Rights and Freedoms guarantees the right to the security of the person in section 7 and equal protection of the law without discrimination on the basis of age in section 15. According to section 2 of the Charter, limitations on these rights can only be allowed if they can be demonstrably justified in a free and democratic society. So, is section 43 justified? According to Senator Landon Pearson, “At present, owing to section 43, children are the only persons not protected from the use of force by way of correction. In my view, it is a breach of the Charter to single out children for an allpurpose defence based on status rather than on circumstances.” 73 Test for Reasonable Force 50 UN Committee’s Concluding Remarks The UN Committee, in its concluding remarks on Canada’s 1995 report, suggested that Canada “examine the possibility of reviewing the penal legislation allowing corporal punishment of children by parents, in schools and in institutions where children may be placed.” The Committee recommended that “physical punishment of children in families be prohibited” and that “educational campaigns be launched with a view to help changing attitudes in society on the use of physical punishment in the family and foster the acceptance of its legal prohibition.” 75 The Arguments While there are many organizations and individuals across Canada who advocate for the repeal of section 43, there is also concern that parents, teachers or other persons standing in the place of a parent could be unreasonably charged with abuse. The Canadian Teacher’s Federation has argued that section 43 provides a necessary shield and a limited defence to “those adults accused of using force in their dealings with children. “The key legal issue,” says the Federation, “has been the test of ‘reasonableness’ or what constitutes ‘excess’.” 76 On the other hand, Corinne Robertshaw of the Repeal 43 Committee argues that “the best way to prevent teachers being charged with assault is to give them a clear and unequivocal message that force is no longer allowed for the purpose of correction but only in those situations permitted by other provisions of the law.” 77 Ken Johnson of the Canadian School Boards Association suggests that section 43 be replaced with the following: “Every parent, teacher or person standing in There is no definitive Supreme Court of Canada judgement on the issue of reasonable force. Many judges consider the factors listed by the Saskatchewan Court of Appeal in R. v. Dupperon (1984), 16 C.C.C. (3d), 453 when determining whether the force used was reasonable under the circumstances: 74 The only matter with which I am concerned here... is whether the force used exceeded what was reasonable under the circumstances so as to deprive the appellant of the protection afforded by section 43 of the Criminal Code. In determining that question the court will consider, from both an objective and a subjective standpoint, such matters as the nature of the offence calling for the correction, the age and character of the child and the likely effect of the punishment on this particular child, the degree of gravity of the punishment, the circumstances under which it was inflicted, and the injuries, if any, suffered. If the child suffers injuries which may endanger life, limbs or health or is disfigured, that alone would be sufficient to find that the punishment administered was unreasonable under the circumstances.
the place of a parent is justified in restraining a pupil or child who is a danger to him/herself or others if the action does not exceed what is reasonable under the circumstances.” 78 British Columbia has banned corporal punishment in its public schools: “The discipline of a student while attending an educational program made available by a board or a Provincial school must be similar to that of a kind, firm and judicious parent, but must not include corporal punishment.” 79 Mel Gill, former executive director of the Children’s Aid Society of Ottawa-Carleton, has argued that “it would be a mistake to criminalize what might be considered “normal” parenting; this could have worse effects than spanking.” He further states that “child welfare organizations are not up to the task of dealing with consequences of repeal, because around 67 percent of parents use physical discipline.” 80 A 1997 Global/Decima opinion poll of Ontarians found that: • 59 percent consider spanking appropriate for children; • 37 percent describe spanking as unacceptable under any circumstance; • spanking ranks last among types of discipline parents would use today; • preferred discipline options include taking away privileges, grounding and time-outs; • 33 percent of parents of pre-teens have used spanking to discipline their children. 81 Anne McGillivray, law professor at the University of Manitoba, argues that “corporal punishment is assault justified by tutorial motive, yet case law shows that most assaults are motivated not by ‘correction’ but by anger, frustration, ‘malice’ and ‘bad humour’.” 82 Repealing Section 43 There have been various initiatives to repeal section 43. In 1993 the federal government consulted with youth, parents, educators, child welfare personnel, police, lawyers and advocacy organizations. Most favoured the repeal of section 43 and the development of new provisions to “clarify the issues around use of force and to educate the legal system and the public.” 83 However, then justice minister Allan Rock said that the federal government had no intention of changing the Criminal Code to outlaw spanking. He thus rejected two decades of his Ministry’s work, according to legal advocate Anne McGillivray. 84 H O W D O E S C A N A D A M E A S U R E U P ? 51 However, Senator Sharon Carstairs, Deputy Government Leader in the Senate, introduced a bill in December 1996 85 to repeal section 43 of the Criminal Code while also protecting parents, teachers and primary caregivers “against unwarranted and nuisance prosecutions.” 86 It died on the order paper but was reintroduced by MP Tony Ianno in March 1998. Most recently, the Canadian Foundation for Children, Youth and the Law filed a test case in November 20, 1998 to have section 43 declared unconstitutional. Cheryl Milne, counsel for the Foundation, says that “we will be arguing that the social science evidence and current international standards take away any justification for the use of corporal punishment against children in Canadian society.” 87 And in Quebec, the Commission des droits de la personne et des droits de la jeunesse (Human and Youth Rights Commission) has announced its support for the movement to eliminate section 43 from the Criminal Code in order to respect the UN Convention on the Rights of the Child. 88 Conclusion Protecting children from maltreatment is an ongoing challenge in Canada. Little is known about the causes, prevention and treatment of abuse and neglect and child death reviews continue to identify the failures of child welfare systems. Inquiries and reviews have led to hundreds of recommendations for improvements which have resulted in various child welfare reforms. Child neglect is strongly linked to poverty, however, and Canada has had little success in reducing child poverty.
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Benefit of the Doubt C A N A D I A
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Lack of appeal mechanism C A N A D
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Process and Protocols PROCESS: Key
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Positive Factor C A N A D I A N C O
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Concern C A N A D I A N C O A L I T
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Poste - Canadian Coalition for the Rights of Children

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