Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4

Canadian Foundation for Children, Youth and the Law Appellant

v.

Attorney General in Right of Canada Respondent

and

Focus on the Family (Canada) Association, Canada Family

Action Coalition, Home School Legal Defence Association

of Canada and REAL Women of Canada, together forming the

Coalition for Family Autonomy, Canadian Teachers’ Federation,

Ontario Association of Children’s Aid Societies, Commission des

droits de la personne et des droits de la jeunesse, on its own

behalf and on behalf of Conseil canadien des organismes

provinciaux de défense des droits des enfants et des jeunes,

and Child Welfare League of Canada Interveners

Indexed as: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)

Neutral citation: 2004 SCC 4.

File No.: 29113.

2003: June 6; 2004: January 30.

Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.

on appeal from the court of appeal for ontario

Constitutional law — Charter of Rights — Fundamental justice — Vagueness — Corporal punishment — Section 43 of Criminal Code justifying use of reasonable force by parents and teachers by way of correction of child or pupil — Whether provision unconstitutionally vague or overbroad — Canadian Charter of Rights and Freedoms, s. 7 — Criminal Code, R.S.C. 1985, c. C-46, s. 43.

Constitutional law — Charter of Rights — Cruel and unusual punishment — Corporal punishment — Section 43 of Criminal Code justifying use of reasonable force by parents and teachers by way of correction of child or pupil — Whether provision infringes right not to be subject to cruel and unusual treatment or punishment — Canadian Charter of Rights and Freedoms, s. 12 — Criminal Code, R.S.C. 1985, c. C-46, s. 43.

Constitutional law — Charter of Rights — Equality rights — Children — Corporal punishment — Section 43 of Criminal Code justifying use of reasonable force by parents and teachers by way of correction of child or pupil — Whether provision infringes right to equality — Canadian Charter of Rights and Freedoms, s. 15(1) — Criminal Code, R.S.C. 1985, c. C-46, s. 43.

Section 43 of the Criminal Code justifies the reasonable use of force by way of correction by parents and teachers against children in their care. The appellant sought a declaration that s. 43 violates ss. 7, 12 and 15(1) of the Canadian Charter of Rights and Freedoms. The trial judge and the Court of Appeal rejected the appellant’s contentions and refused to issue the declaration requested.

Held (Binnie J. dissenting in part; Arbour and Deschamps JJ. dissenting): The appeal should be dismissed.

Per McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache and LeBel JJ.: Section 43 of the Criminal Code does not offend s. 7 of the Charter. While s. 43 adversely affects children’s security of the person, it does not offend a principle of fundamental justice. First, s. 43 provides adequate procedural safeguards to protect this interest, since the child’s interests are represented at trial by the Crown. Second, it is not a principle of fundamental justice that laws affecting children must be in their best interests. Thirdly, s. 43, properly construed, is not unduly vague or overbroad; it sets real boundaries and delineates a risk zone for criminal sanction and avoids discretionary law enforcement. The force must have been intended to be for educative or corrective purposes, relating to restraining, controlling or expressing disapproval of the actual behaviour of a child capable of benefiting from the correction. While the words “reasonable under the circumstances” on their face are broad, implicit limitations add precision. Section 43 does not extend to an application of force that results in harm or the prospect of harm. Determining what is “reasonable under the circumstances” in the case of child discipline is assisted by Canada’s international treaty obligations, the circumstances in which the discipline occurs, social consensus, expert evidence and judicial interpretation. When these considerations are taken together, a solid core of meaning emerges for “reasonable under the circumstances”, sufficient to establish a zone in which discipline risks criminal sanction.

The conduct permitted by s. 43 does not involve “cruel and unusual” treatment or punishment by the state and therefore does not offend s. 12 of the Charter. Section 43 permits only corrective force that is reasonable. Conduct cannot be at once both reasonable and an outrage to standards of decency.

Section 43 does not discriminate contrary to s. 15(1) of the Charter. A reasonable person acting on behalf of a child, apprised of the harms of criminalization that s. 43 avoids, the presence of other governmental initiatives to reduce the use of corporal punishment, and the fact that abusive and harmful conduct is still prohibited by the criminal law, would not conclude that the child’s dignity has been offended in the manner contemplated by s. 15(1). While children need a safe environment, they also depend on parents and teachers for guidance and discipline, to protect them from harm and to promote their healthy development within society. Section 43 is Parliament’s attempt to accommodate both of these needs. It provides parents and teachers with the ability to carry out the reasonable education of the child without the threat of sanction by the criminal law. Without s. 43, Canada’s broad assault law would criminalize force falling far short of what we think of as corporal punishment. The decision not to criminalize such conduct is not grounded in devaluation of the child, but in a concern that to do so risks ruining lives and breaking up families — a burden that in large part would be borne by children and outweigh any benefit derived from applying the criminal process.

Per Binnie J. (dissenting in part): By denying children the protection of the criminal law against the infliction of physical force that would be criminal assault if used against an adult, s. 43 of the Criminal Code infringes children’s equality rights guaranteed by s. 15(1) of the Charter. To deny protection against physical force to children at the hands of their parents and teachers is not only disrespectful of a child’s dignity but turns the child, for the purpose of the Criminal Code, into a second class citizen. Such marginalization is destructive of dignity from any perspective, including that of a child. Protection of physical integrity against the use of unlawful force is a fundamental value that is applicable to all.

The majority in this case largely dismisses the s. 15(1) challenge because of the alleged correspondence between the actual needs and circumstances of children and the diminished protection they enjoy under s. 43. In the majority view, the objective of substantive equality (as distinguished from formal equality) calls for the differential treatment of children. Here, however, the “correspondence” factor is used as a sort of Trojan horse to bring into s. 15(1) matters that are more properly regarded as “reasonable limits . . . demonstrably justified in a free and democratic society” (s. 1). Section 43 protects parents and teachers, not children. The justification for their immunity should be dealt with under s. 1.

The use of force against a child, which in the absence of s. 43 would result in a criminal conviction, cannot be said to “correspond” to a child’s “needs, capacities and circumstances” from the vantage point of a reasonable person acting on behalf of a child who seriously considers and values the child’s views and developmental needs. Furthermore, the use of the “correspondence” factor to deny equality relief to children in this case is premised on the view that the state has good reason for treating children differently because of the role and importance of family life in our society. However, to proceed in this way just incorporates the “legitimate objective” element from the s. 1 Oakes test into s. 15, while incidentally switching the onus to the rights claimant to show the legislative objective is not legitimate, and relieving the government of the onus of demonstrating proportionality, including minimal impairment. This denies children the protection of their right to equal treatment.

The infringement of children’s equality rights is saved by s. 1 of the Charter in relation to parents and persons standing in the place of parents. The objective of s. 43 of limiting the intrusion of the Criminal Code into family life is pressing and substantial and providing a defence to a criminal prosecution in the circumstances stated in s. 43 is rationally connected to that objective. As to minimal impairment, the wording of s. 43 not only permits calibration of the immunity to different circumstances and children of different ages, but it allows for adjustment over time. The proportionality requirements are met by Parliament’s limitation of the s. 43 defence to circumstances where: (i) the force is for corrective purposes, and (ii) the measure of force is shown to be reasonable in the circumstances. What is reasonable in relation to achievement of the legitimate legislative objective will not, by definition, be disproportionate to such achievement. Moreover, the salutary effects of s. 43 exceed its potential deleterious effects when one considers that the assault provisions of the Criminal Code are just a part, and perhaps a less important part, of the overall protections afforded to children by child welfare legislation. To deny children the ability to have their parents successfully prosecuted for reasonable corrective force under the Criminal Code does not leave them without effective recourse. It just helps to keep the family out of the criminal courts. Section 43 in relation to parents is justified on this basis.

The extension of s. 43 protection to teachers has not been justified under the s. 1 test. Parents and teachers play very different roles in a child’s life and there is no reason why they should be treated on the same legal plane for the purposes of the Criminal Code. The logic for keeping criminal sanctions out of the schools is much less compelling than for keeping them out of the home. While order in the schools is a legitimate objective, giving non-family members an immunity for the criminal assault of children “by way of correction” is not a reasonable or proportionate legislative response to that problem. Section 43 does not minimally impair the child’s equality right, and is not a proportionate response to the problem of order in the schools.

Per Arbour J. (dissenting): Section 43 of the Criminal Code can only be restrictively interpreted if the law, as it stands, offends the Constitution and must therefore be curtailed. Absent such constitutional restraints, it is neither the historic nor the proper role of courts to enlarge criminal responsibility by limiting defences enacted by Parliament. The reading down of a statutory defence amounts to an abandonment by the courts of their proper role in the criminal process. Nothing in the words of s. 43, properly construed, suggests that Parliament intended that some conduct be excluded at the outset from the scope of its protection. This is the law as we must take it in order to assess its constitutionality. To essentially rewrite it before validating its constitutionality is to hide the constitutional imperative.

Section 43 of the Criminal Code infringes the rights of children under s. 7 of the Charter. The phrase “reasonable under the circumstances” in s. 43 violates children’s security of the person interest and the deprivation is not in accordance with the relevant principle of fundamental justice, in that it is unconstitutionally vague. A vague law violates the principles of fundamental justice because it does not provide “fair warning” to individuals as to the legality of their actions and because it increases the amount of discretion given to law enforcement officials in their application of the law, which may lead to arbitrary enforcement. There is no need to speculate about whether s. 43 is capable, in theory, of circumscribing an acceptable level of debate about the scope of its application. Canadian courts have been unable to articulate a legal framework for s. 43 despite attempts to establish guidelines and have been at a loss to appreciate the “reasonableness” referred to by Parliament. “Reasonableness” with respect to s. 43 is linked to public policy issues and one’s own sense of parental authority and always entails an element of subjectivity. Conceptions of what is “reasonable” in terms of the discipline of children, whether physical or otherwise, vary widely, and often engage cultural and religious beliefs as well as political and ethical ones. While it may work well in other contexts, in this one the term “reasonable force” has proven not to be a workable standard and the lack of clarity is particularly problematic here because the rights of children are engaged. The restrictions put forth by the majority with respect to the scope of the defence in s. 43 have not emerged from the existing case law. These restrictions are far from self-evident and would not have been anticipated by many parents, teachers or enforcement officials. Attempts at judicial interpretation which would structure the discretion in s. 43 have failed to provide coherent or cogent guidelines that would meet the standard of notice and specificity generally required in the criminal law.

Since s. 43 is unconstitutionally vague, it cannot pass the “prescribed by law” requirement in s. 1 of the Charter or the minimal impairment stage of the Oakes test and accordingly cannot be saved under that section. Striking down the provision is the most appropriate remedy, as Parliament is best equipped to reconsider this vague and controversial provision. Striking down s. 43 will not expose parents and persons standing in the place of parents to the blunt instrument of the criminal law for every minor instance of technical assault. The common law defences of necessity and de minimis adequately protect parents and teachers from excusable and/or trivial conduct. The defence of necessity rests upon a realistic assessment of human weaknesses and recognizes that there are emergency situations where the law does not hold people accountable if the ordinary human instincts overwhelmingly impel disobedience in the pursuit of self-preservation or the preservation of others. Because the s. 43 defence only protects parents who apply force for corrective purposes, the common law may have to be resorted to in any event in situations where parents forcibly restrain children incapable of learning, to ensure the child’s safety, for example. With respect to the common law defence of de minimis, an appropriate expansion in the use of that defence would assist in ensuring that trivial, technical violations of the assault provisions of the Criminal Code do not attract criminal sanctions.

Per Deschamps J. (dissenting): The ordinary and contextual meaning of s. 43 cannot bear the restricted interpretation proposed by the majority. Section 43 applies to and justifies an extensive range of conduct, including serious uses of force against children. There was agreement with Arbour J. that the body of case law applying s. 43 is evidence of its broad parameters and wide scope. Where, as here, the text of the provision does not support a severely restricted scope of conduct that would avoid constitutional disfavour, the Court cannot read the section down to create a constitutionally valid provision. It is the duty of the Court to determine the intent of the legislator by looking at the text, context and purpose of the provision.

Section 43 infringes the equality guarantees of children under s. 15(1) of the Charter. On its face, as well as in its result, s. 43 creates a distinction between children and others which is based on the enumerated ground of age. Moreover, the distinction or differential treatment under s. 43 constitutes discrimination. The government’s explicit choice not to criminalize some assaults against children violates their dignity. First, there is clearly a significant interest at stake because the withdrawal of the protection of the criminal law for incursions on one’s physical integrity would lead the reasonable claimant to believe that her or his dignity is being harmed. Second, children as a group face pre-existing disadvantage in our society and have been recognized as a vulnerable group time and again by legislatures and courts. Third, the proposed ameliorative purposes or effects factor does not apply and has only a neutral impact on the analysis. Lastly, s. 43 perpetuates the notion of children as property rather than human beings and sends the message that their bodily integrity and physical security is to be sacrificed to the will of their parents, however misguided. Far from corresponding to the actual needs and circumstances of children, s. 43 compounds the pre-existing disadvantage of children as a vulnerable and often-powerless group whose access to legal redress is already restricted.

The infringement of s. 15(1) is not justified as a reasonable limit under s. 1 of the Charter. The legislative objective behind s. 43 of recognizing that parents and teachers require reasonable latitude in carrying out the responsibility imposed by law to provide for their children, to nurture them, and to educate them is pressing and substantial. As well, there does appear to be a rational connection between the objective and limiting the application of the criminal law in the parent-child or teacher-pupil relationship. However, it is clear that less intrusive means were available that would have been more appropriately tailored to the objective. Section 43 could have been defined in such a way as to be limited only to very minor applications of force rather than being broad enough to capture more serious assaults on a child’s body. It could also have been better tailored in terms of those to whom it applies, those whom it protects, and the scope of conduct it justifies. A consideration of the proportionality between the salutary and deleterious effects of the application of s. 43 also supports the conclusion that the proportionality part of the Oakes test has not been met. The deleterious effects impact upon such a core right of children as a vulnerable group that the salutary effects must be extremely compelling to be proportional. The discrimination represented by s. 43 produces the most drastic effect in sending the message that children, as a group, are less worthy of protection of their bodies than anyone else.

The striking down of s. 43 is the only appropriate remedy in this case and s. 43 should be severed from the rest of the Criminal Code. It does not measure up to Charter standards and, thus, must cede to the supremacy of the Constitution to the extent of any inconsistency.

Cases Cited

By McLachlin C.J.

Referred to: R. v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486; Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519; Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817; R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606; Grayned v. City of Rockford, 408 U.S. 104 (1972); Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; Ogg-Moss v. The Queen, 1984 CanLII 77 (SCC), [1984] 2 S.C.R. 173; R. v. K. (M.) (1992), 1992 CanLII 2765 (MB CA), 74 C.C.C. (3d) 108; Ordon Estate v. Grail, 1998 CanLII 771 (SCC), [1998] 3 S.C.R. 437; Eur. Court H. R., A. v. United Kingdom, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI; R. v. Dupperon (1984), 1984 CanLII 61 (SK CA), 16 C.C.C. (3d) 453; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123; R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045; Harvey v. New Brunswick (Attorney General), 1996 CanLII 163 (SCC), [1996] 2 S.C.R. 876; Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497; Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, 2002 SCC 84.

By Binnie J. (dissenting in part)

Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497; Ogg-Moss v. The Queen, 1984 CanLII 77 (SCC), [1984] 2 S.C.R. 173; R. v. Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371; Streng v. Township of Winchester (1986), 1986 CanLII 2640 (ON SC), 31 D.L.R. (4th) 734; Jones v. Ontario (Attorney General) (1988), 1988 CanLII 4700 (ON SC), 65 O.R. (2d) 737; Piercey v. General Bakeries Ltd. (1986), 1986 CanLII 107 (NL SC), 31 D.L.R. (4th) 373; Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69; Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, 2002 SCC 84; Egan v. Canada, 1995 CanLII 98 (SCC), [1995] 2 S.C.R. 513; Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241; Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28; Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54; Miron v. Trudel, 1995 CanLII 97 (SCC), [1995] 2 S.C.R. 418; R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103; Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48; New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46; R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714; Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835.

By Arbour J. (dissenting)

R. v. Pickard, [1995] B.C.J. No. 2861 (QL); R. v. G.C.C. (2001), 2001 CanLII 33780 (NL SC), 206 Nfld. & P.E.I.R. 231; R. v. Fritz (1987), 1987 CanLII 4766 (SK QB), 55 Sask. R. 302; R. v. Bell, [2001] O.J. No. 1820 (QL); R. v. N.S., [1999] O.J. No. 320 (QL); R. v. Asante-Mensah, [2003] 2 S.C.R. 3, 2003 SCC 38; R. v. Ruzic, [2001] 1 S.C.R. 687, 2001 SCC 24; Ogg‑Moss v. The Queen, 1984 CanLII 77 (SCC), [1984] 2 S.C.R. 173; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72; R. v. Campbell (1977), 1977 CanLII 1191 (ON CA), 38 C.C.C. (2d) 6; R. v. Dupperon (1984), 1984 CanLII 61 (SK CA), 16 C.C.C. (3d) 453; R. v. Wetmore (1996), 1996 CanLII 18664 (NB QB), 172 N.B.R. (2d) 224; R. v. Graham (1995), 1995 CanLII 10753 (NB QB), 160 N.B.R. (2d) 306; R. v. Plourde (1993), 1993 CanLII 15209 (NB PC), 140 N.B.R. (2d) 273; R. v. Caouette, [2002] Q.J. No. 1055 (QL); R. v. Skidmore, Ont. C.J., No. 8414/99, June 27, 2000; R. v. Gallant (1993), 1993 CanLII 3440 (PE SCTD), 110 Nfld. & P.E.I.R. 174; R. v. Fonder, [1993] Q.J. No. 238 (QL); R. v. James, [1998] O.J. No. 1438 (QL); R. v. Wood (1995), 1995 CanLII 18077 (AB CJ), 176 A.R. 223; R. v. Vivian, [1992] B.C.J. No. 2190 (QL); R. v. Murphy (1996), 1996 CanLII 1346 (BC CA), 108 C.C.C. (3d) 414; R. v. K. (M.) (1992), 1992 CanLII 2765 (MB CA), 74 C.C.C. (3d) 108; R. v. Goforth (1991), 1991 CanLII 7729 (SK QB), 98 Sask. R. 26; R. v. Wheeler, [1990] Y.J. No. 191 (QL); R. v. V.L., [1995] O.J. No. 3346 (QL); R. v. Holmes, [2001] Q.J. No. 7640 (QL); R. v. Harriott (1992), 1992 CanLII 13384 (NB PC), 128 N.B.R. (2d) 155; R. v. Atkinson, 1994 CanLII 16665 (MB PC), [1994] 9 W.W.R. 485; R. v. L.A.K. (1992), 104 Nfld. & P.E.I.R. 118; R. v. Robinson, [1986] Y.J. No. 99 (QL); R. v. V.H., [2001] N.J. No. 307 (QL); R. v. O.J., [1996] O.J. No. 647 (QL); R. v. Dunfield (1990), 1990 CanLII 6529 (NB QB), 103 N.B.R. (2d) 172; Kindler v. Canada (Minister of Justice), 1991 CanLII 78 (SCC), [1991] 2 S.C.R. 779; R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123; R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606; Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927; R. v. LeBeau (1988), 1988 CanLII 3271 (ON CA), 41 C.C.C. (3d) 163; Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497; Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48; R. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761; R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711; Osborne v. Canada (Treasury Board), 1991 CanLII 60 (SCC), [1991] 2 S.C.R. 69; R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103; Morgentaler v. The Queen, 1975 CanLII 8 (SCC), [1976] 1 S.C.R. 616; Perka v. The Queen, 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232; R. v. Manning (1994), 1994 CanLII 19079 (BC PC), 31 C.R. (4th) 54; R. v. Morris (1981), 1981 CanLII 1216 (AB KB), 61 C.C.C. (2d) 163; R. v. Kormos (1998), 1998 CanLII 14958 (ON SC), 14 C.R. (5th) 312; The “Reward” (1818), 2 Dods. 265, 165 E.R. 1482; R. v. Malmo‑Levine, [2003] 3 S.C.R. 571, 2003 SCC 74; R. v. Overvold (1972), 1972 CanLII 1315 (NWT TC), 9 C.C.C. (2d) 517; R. v. S. (1974), 1974 CanLII 1542 (MB PROVJCT), 17 C.C.C. (2d) 181; R. v. McBurney (1974), 1974 CanLII 1550 (BC SC), 15 C.C.C. (2d) 361, aff’d (1975), 1975 CanLII 1399 (BC CA), 24 C.C.C. (2d) 44; R. v. Li (1984), 1984 CanLII 3546 (ON SC), 16 C.C.C. (3d) 382; R. v. Lepage (1989), 1989 CanLII 4548 (SK QB), 74 C.R. (3d) 368; R. v. Matsuba (1993), 1993 CanLII 16403 (AB CJ), 137 A.R. 34; R. v. Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371; R. v. Hinchey, 1996 CanLII 157 (SCC), [1996] 3 S.C.R. 1128.

By Deschamps J. (dissenting)

Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038; R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606; R. v. Lucas, 1998 CanLII 815 (SCC), [1998] 1 S.C.R. 439; Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497; R. v. Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315; Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; Ogg-Moss v. The Queen, 1984 CanLII 77 (SCC), [1984] 2 S.C.R. 173; R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103; Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679; Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721; R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933; M. v. H., 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3.

Statutes and Regulations Cited

Age of Majority and Accountability Act, R.S.O. 1990, c. A.7, s. 1.

Canada Shipping Act, 2001, S.C. 2001, c. 26, s. 294 (not yet in force).

Canadian Charter of Rights and Freedoms, ss. 1, 7, 12, 15(1).

Child and Family Services Act, R.S.O. 1990, c. C.11, s. 1(a).

Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 19(a).

Constitution Act, 1982, s. 52.

Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221.

Convention on the Elimination of All Forms of Discrimination against Women, Can. T.S. 1982 No. 31, Arts. 5(b), 16(1)(d).

Convention on the Rights of the Child, Can. T.S. 1992 No. 3, Arts. 3(1), 5, 19(1), 37(a), 43(1).

Crimes Act 1961 (N.Z.), 1961, No. 43, s. 59.

Criminal Code, R.S.C. 1985, c. C-46, ss. 2 [am. 1994, c. 44, s. 2(2)], 8(3), 9, 27, 30, 32, 34, 35, 37, 39, 40, 41, 43, 44 [rep. 2001, c. 26, s. 294 (not yet in force)], 45, 232, 265, 267 [repl. 1994, c. 44, s. 17], 273.2(b) [ad. 1992, c. 38, s. 1], 495 [rep. & sub. 1985, c. 27 (1st Supp.), s. 75].

Criminal Code, S.C. 1953-54, c. 51, ss. 43, 44.

Criminal Code, 1892, S.C. 1892, c. 29, ss. 44, 45, 55.

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 16(8), (10), 17(5), (9).

Education Act, S.N.B. 1997, c. E-1.12, s. 23.

Education Act, S.N.W.T. 1995, c. 28, s. 34(3).

Education Act, S.Y. 1989-90, c. 25, s. 36.

Education Act 1989 (N.Z.), 1989, No. 80, s. 139A.

Education (No. 2) Act 1986 (U.K.), 1986, c. 61, s. 47.

Family Relations Act, R.S.B.C. 1996, c. 128, s. 24(1).

Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 25, 28, 60, 67, 68, 69.

International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47, preamble, Arts. 7, 24.

School Act, R.S.B.C. 1996, c. 412, s. 76(3).

School Act, R.S.P.E.I. 1988, c. S-2.1, s. 73.

Schools Act, 1997, S.N.L. 1997, c. S-12.2, s. 42.

Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 25(8), 27(1), 30(3), (4).

Authors Cited

Ashworth, Andrew. Principles of Criminal Law, 4th ed. Oxford: Oxford University Press, 2003.

Bernard, Claire. “Corporal Punishment as a Means of Correcting Children”. Quebec: Commission des droits de la personne et des droits de la jeunesse, November 1998.

Blackstone, William. Commentaries on the Laws of England, Book III. Oxford: Clarendon Press, 1768.

Canada. Canadian Committee on Corrections. Report of the Canadian Committee on Corrections — Toward Unity: Criminal Justice and Corrections. Ottawa: Queen’s Printer, 1969.

Canada. Department of Justice. Reforming the General Part of the Criminal Code: A Consultation Paper. Ottawa: Dept. of Justice, 1994.

Canada. Law Reform Commission. Working Paper 38. Assault. Ottawa: The Commission, 1984.

Canada. The Canadian Constitution 1980: Proposed Resolution respecting the Constitution of Canada. Ottawa: Publications Canada, 1980.

Canadian Bar Association. Criminal Recodification Task Force. Principles of Criminal Liability: Proposals for a New General Part of the Criminal Code of Canada. Ottawa: Canadian Bar Association, 1992.

Colvin, Eric. Principles of Criminal Law, 2nd ed. Scarborough, Ont.: Thomson Professional Publishing Canada, 1991.

Greene, Sharon D. “The Unconstitutionality of Section 43 of the Criminal Code: Children’s Right to be Protected from Physical Assault, Part 1” (1999), 41 Crim. L.Q. 288.

Hétu, Jean. “Droit judiciaire: De minimis non curat praetor: une maxime qui a toute son importance!” (1990), 50 R. du B. 1065.

Hogg, Peter W. Constitutional Law of Canada, vol. 2, 4th ed. Scarborough, Ont.: Carswell, 1997 (loose-leaf updated 2003, release 1).

Martin, John C. The Criminal Code of Canada. Toronto: Cartwright, 1955.

McGillivray, Anne. “‘He’ll learn it on his body’: Disciplining childhood in Canadian law” (1997), 5 Int’l J. Child. Rts. 193.

McGillivray, Anne. “R. v. K. (M.): Legitimating Brutality” (1993), 16 C.R. (4th) 125.

Mewett, Alan W., and Morris Manning. Mewett & Manning on Criminal Law, 3rd ed. Toronto: Butterworths, 1994.

Newell, Peter. Children Are People Too: The Case Against Physical Punishment. London: Bedford Square Press, 1989.

Sharpe, Robert J., Katherine E. Swinton and Kent Roach. The Charter of Rights and Freedoms, 2nd ed. Toronto: Irwin Law, 2002.

Strauss, S. A. “Book Review of South African Criminal Law and Procedure by E. M. Burchell, J. S. Wylie and P. M. A. Hunt” (1970), 87 So. Afr. L.J. 471.

Stuart, Don. Canadian Criminal Law: A Treatise, 4th ed. Scarborough, Ont.: Carswell, 2001.

United Nations. Committee on the Rights of the Child. Consideration of Reports Submitted by State Parties Under Article 44 of the Convention, Thirty-fourth Session, CRC/C/15/Add.215 (2003).

United Nations. Committee on the Rights of the Child. Report adopted by the Committee at its 209th meeting on 27 January 1995, Eighth Session, CRC/C/38.

United Nations. Committee on the Rights of the Child. Report adopted by the Committee at its 233rd meeting on 9 June 1995, Ninth Session, CRC/C/43.

United Nations. Report of the Human Rights Committee, vol. I, UN GAOR, Fiftieth Session, Supp. No. 40 (A/50/40) (1995).

United Nations. Report of the Human Rights Committee, vol. I, UN GAOR, Fifty-fourth Session, Supp. No. 40 (A/54/40) (1999).

United Nations. Report of the Human Rights Committee, vol. I, UN GAOR, Fifty-fifth Session, Supp. No. 40 (A/55/40) (2000).

APPEAL from a judgment of the Ontario Court of Appeal (2002), 2002 CanLII 21983 (ON CA), 57 O.R. (3d) 511, 207 D.L.R. (4th) 632, 161 C.C.C. (3d) 178, 154 O.A.C. 144, 48 C.R. (5th) 218, 23 R.F.L. (5th) 101, 90 C.R.R. (2d) 223, [2002] O.J. No. 61 (QL), affirming a judgment of the Superior Court of Justice (2000), 2000 CanLII 22397 (ON SC), 49 O.R. (3d) 662, 188 D.L.R. (4th) 718, 146 C.C.C. (3d) 362, 36 C.R. (5th) 334, 76 C.R.R. (2d) 251, [2000] O.J. No. 2535 (QL). Appeal dismissed, Binnie J. dissenting in part and Arbour and Deschamps JJ. dissenting.

Paul B. Schabas, Cheryl Milne and Nicholas Adamson, for the appellant.

Roslyn J. Levine, Q.C., and Gina M. Scarcella, for the respondent.

Allan O’Brien and Steven J. Welchner, for the intervener the Canadian Teachers’ Federation.

J. Gregory Richards, Ritu R. Bhasin and Marvin M. Bernstein, for the intervener the Ontario Association of Children’s Aid Societies.

David M. Brown, Manizeh Fancy and Dallas Miller, Q.C., for the intervener the Coalition for Family Autonomy.

Hélène Tessier and Athanassia Bitzakidis, for the intervener the Commission des droits de la personne et des droits de la jeunesse.

Michael E. Barrack and Christopher A. Wayland, for the intervener the Child Welfare League of Canada.

The judgment of McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache and LeBel JJ. was delivered by

1 The Chief Justice — The issue in this case is the constitutionality of Parliament’s decision to carve out a sphere within which children’s parents and teachers may use minor corrective force in some circumstances without facing criminal sanction. The assault provision of the Criminal Code, R.S.C. 1985, c. C-46, s. 265, prohibits intentional, non-consensual application of force to another. Section 43 of the Criminal Code excludes from this crime reasonable physical correction of children by their parents and teachers. It 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.

The Canadian Foundation for Children, Youth and the Law (the “Foundation”) seeks a declaration that this exemption from criminal sanction: (1) violates s. 7 of the Canadian Charter of Rights and Freedoms because it fails to give procedural protections to children, does not further the best interests of the child, and is both overbroad and vague; (2) violates s. 12 of the Charter because it constitutes cruel and unusual punishment or treatment; and (3) violates s. 15(1) of the Charter because it denies children the legal protection against assaults that is accorded to adults.

2 The trial judge and the Court of Appeal rejected the Foundation’s contentions and refused to issue the declaration requested. Like them, I conclude that the exemption from criminal sanction for corrective force that is “reasonable under the circumstances” does not offend the Charter. I say this, having carefully considered the contrary view of my colleague, Arbour J., that the defence of reasonable correction offered by s. 43 is so vague that it must be struck down as unconstitutional, leaving parents who apply corrective force to children to the mercy of the defences of necessity and “de minimis”. I am satisfied that the substantial social consensus on what is reasonable correction, supported by comprehensive and consistent expert evidence on what is reasonable presented in this appeal, gives clear content to s. 43. I am also satisfied, with due respect to contrary views, that exempting parents and teachers from criminal sanction for reasonable correction does not violate children’s equality rights. In the end, I am satisfied that this section provides a workable, constitutional standard that protects both children and parents.

I. Does Section 43 of the Criminal Code Offend Section 7 of the Charter?

3 Section 7 of the Charter is breached by state action depriving someone of life, liberty, or security of the person contrary to a principle of fundamental justice. The burden is on the applicant to prove both the deprivation and the breach of fundamental justice. In this case the Crown concedes that s. 43 adversely affects children’s security of the person, fulfilling the first requirement.

4 This leaves the question of whether s. 43 offends a principle of fundamental justice. The Foundation argues that three such principles have been breached: (1) the principle that the child must be afforded independent procedural rights; (2) the principle that legislation affecting children must be in their best interests; and (3) the principle that criminal legislation must not be vague or overbroad. I will consider each in turn.

A. Independent Procedural Rights for Children

5 It is a principle of fundamental justice that accused persons must be accorded adequate procedural safeguards in the criminal process. By analogy, the Foundation argues that it is a principle of fundamental justice that innocent children who are alleged to have been subjected to force exempted from criminal sanction by s. 43 of the Criminal Code have a similar right to due process in the representation of their interests at trial. Section 43 fails to accord such process, it is argued, and therefore breaches s. 7 of the Charter. The implication is that for s. 43 to be constitutional, it would be necessary to provide for separate representation of the child’s interests.

6 Thus far, jurisprudence has not recognized procedural rights for the alleged victims of an offence. However, I need not consider that issue. Even on the assumption that alleged child victims are constitutionally entitled to procedural safeguards, the Foundation’s argument fails because s. 43 provides adequate procedural safeguards to protect this interest. The child’s interests are represented at trial by the Crown. The Crown’s decision to prosecute and its conduct of the prosecution will necessarily reflect society’s concern for the physical and mental security of the child. There is no reason to suppose that, as in other offences involving children as victims or witnesses, the Crown will not discharge that duty properly. Nor is there any reason to conclude on the arguments before us that providing separate representation for the child is either necessary or useful. I conclude that no failure of procedural safeguards has been established.

B. The Best Interests of the Child

7 The Foundation argues that it is a principle of fundamental justice that laws affecting children must be in their best interests, and that s. 43’s exemption of reasonable corrective force from criminal sanction is not in the best interests of the child. Therefore, it argues, s. 43 violates s. 7 of the Charter. I disagree. While “the best interests of the child” is a recognized legal principle, this legal principle is not a principle of fundamental justice.

8 Jurisprudence on s. 7 has established that a “principle of fundamental justice” must fulfill three criteria: R. v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74, at para. 113. First, it must be a legal principle. This serves two purposes. First, it “provides meaningful content for the s. 7 guarantee”; second, it avoids the “adjudication of policy matters”: Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 503. Second, there must be sufficient consensus that the alleged principle is “vital or fundamental to our societal notion of justice”: Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519, at p. 590. The principles of fundamental justice are the shared assumptions upon which our system of justice is grounded. They find their meaning in the cases and traditions that have long detailed the basic norms for how the state deals with its citizens. Society views them as essential to the administration of justice. Third, the alleged principle must be capable of being identified with precision and applied to situations in a manner that yields predictable results. Examples of principles of fundamental justice that meet all three requirements include the need for a guilty mind and for reasonably clear laws.

9 The “best interests of the child” is a legal principle, thus meeting the first requirement. A legal principle contrasts with what Lamer J. (as he then was) referred to as “the realm of general public policy” (Re B.C. Motor Vehicle Act, supra, at p. 503), and Sopinka J. referred to as “broad” and “vague generalizations about what our society considers to be ethical or moral” (Rodriguez, supra, at p. 591), the use of which would transform s. 7 into a vehicle for policy adjudication. The “best interests of the child” is an established legal principle in international and domestic law. Canada is a party to international conventions that treat “the best interests of the child” as a legal principle: see the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, Art. 3(1), and the Convention on the Elimination of All Forms of Discrimination against Women, Can. T.S. 1982 No. 31, Arts. 5(b) and 16(1)(d). Many Canadian statutes explicitly name the “best interests of the child” as a legal consideration: see, for example, Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 25, 28, 60, 67, 68 and 69; Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 25(8), 27(1), 30(3) and (4); Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 16(8), (10), 17(5) and (9). Family law statutes are saturated with references to the “best interests of the child” as a legal principle of paramount importance: though not an exhaustive list, examples include: Family Relations Act, R.S.B.C. 1996, c. 128, s. 24(1); Child and Family Services Act, R.S.O. 1990, c. C.11, s. 1(a); Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 19(a). Clearly, the “best interests of the child” has achieved the status of a legal principle; the first requirement is met.

10 However, the “best interests of the child” fails to meet the second criterion for a principle of fundamental justice: consensus that the principle is vital or fundamental to our societal notion of justice. The “best interests of the child” is widely supported in legislation and social policy, and is an important factor for consideration in many contexts. It is not, however, a foundational requirement for the dispensation of justice. Article 3(1) of the Convention on the Rights of the Child describes it as “a primary consideration” rather than “the primary consideration” (emphasis added). Drawing on this wording, L’Heureux-Dubé J. noted in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 75:

[T]he decision-maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children’s interests are given this consideration.

It follows that the legal principle of the “best interests of the child” may be subordinated to other concerns in appropriate contexts. For example, a person convicted of a crime may be sentenced to prison even where it may not be in his or her child’s best interests. Society does not always deem it essential that the “best interests of the child” trump all other concerns in the administration of justice. The “best interests of the child”, while an important legal principle and a factor for consideration in many contexts, is not vital or fundamental to our societal notion of justice, and hence is not a principle of fundamental justice.

11 The third requirement is that the alleged principle of fundamental justice be “capable of being identified with some precision” (Rodriguez, supra, at p. 591) and provide a justiciable standard. Here, too, the “best interests of the child” falls short. It functions as a factor considered along with others. Its application is inevitably highly contextual and subject to dispute; reasonable people may well disagree about the result that its application will yield, particularly in areas of the law where it is one consideration among many, such as the criminal justice system. It does not function as a principle of fundamental justice setting out our minimum requirements for the dispensation of justice.

12 To conclude, “the best interests of the child” is a legal principle that carries great power in many contexts. However, it is not a principle of fundamental justice.

C. Vagueness and Overbreadth

(1) Vagueness

13 The Foundation argues that s. 43 is unconstitutional because first, it does not give sufficient notice as to what conduct is prohibited; and second, it fails to constrain discretion in enforcement. The concept of what is “reasonable under the circumstances” is simply too vague, it is argued, to pass muster as a criminal provision.

14 Applying the legal requirements for precision in a criminal statute to s. 43, I conclude that s. 43, properly construed, is not unduly vague.

(a) The Standard for “Vagueness”

15 A law is unconstitutionally vague if it “does not provide an adequate basis for legal debate” and “analysis”; “does not sufficiently delineate any area of risk”; or “is not intelligible”. The law must offer a “grasp to the judiciary”: R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606, at pp. 639-40. Certainty is not required.

As Gonthier J. pointed out in Nova Scotia Pharmaceutical, supra, at pp. 638-39,

conduct is guided by approximation. The process of approximation sometimes results in quite a narrow set of options, sometimes in a broader one. Legal dispositions therefore delineate a risk zone, and cannot hope to do more, unless they are directed at individual instances. [Emphasis added.]

16 A law must set an intelligible standard both for the citizens it governs and the officials who must enforce it. The two are interconnected. A vague law prevents the citizen from realizing when he or she is entering an area of risk for criminal sanction. It similarly makes it difficult for law enforcement officers and judges to determine whether a crime has been committed. This invokes the further concern of putting too much discretion in the hands of law enforcement officials, and violates the precept that individuals should be governed by the rule of law, not the rule of persons. The doctrine of vagueness is directed generally at the evil of leaving “basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application”: Grayned v. City of Rockford, 408 U.S. 104 (1972), at p. 109.

17 Ad hoc discretionary decision making must be distinguished from appropriate judicial interpretation. Judicial decisions may properly add precision to a statute. Legislators can never foresee all the situations that may arise, and if they did, could not practically set them all out. It is thus in the nature of our legal system that areas of uncertainty exist and that judges clarify and augment the law on a case-by-case basis.

18 It follows that s. 43 of the Criminal Code will satisfy the constitutional requirement for precision if it delineates a risk zone for criminal sanction. This achieves the essential task of providing general guidance for citizens and law enforcement officers.

(b) Does Section 43 Delineate a Risk Zone for Criminal Sanction?

19 The purpose of s. 43 is to delineate a sphere of non-criminal conduct within the larger realm of common assault. It must, as we have seen, do this in a way that permits people to know when they are entering a zone of risk of criminal sanction and that avoids ad hoc discretionary decision making by law enforcement officials. People must be able to assess when conduct approaches the boundaries of the sphere that s. 43 provides.

20 To ascertain whether s. 43 meets these requirements, we must consider its words and court decisions interpreting those words. The words of the statute must be considered in context, in their grammatical and ordinary sense, and with a view to the legislative scheme’s purpose and the intention of Parliament: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26. Since s. 43 withdraws the protection of the criminal law in certain circumstances, it should be strictly construed: see Ogg-Moss v. The Queen, 1984 CanLII 77 (SCC), [1984] 2 S.C.R. 173, at p. 183.

21 Section 43 delineates who may access its sphere with considerable precision. The terms “schoolteacher” and “parent” are clear. The phrase “person standing in the place of a parent” has been held by the courts to indicate an individual who has assumed “all the obligations of parenthood”: Ogg-Moss, supra, at p. 190 (emphasis in original). These terms present no difficulty.

22 Section 43 identifies less precisely what conduct falls within its sphere. It defines this conduct in two ways. The first is by the requirement that the force be “by way of correction”. The second is by the requirement that the force be “reasonable under the circumstances”. The question is whether, taken together and construed in accordance with governing principles, these phrases provide sufficient precision to delineate the zone of risk and avoid discretionary law enforcement.

23 I turn first to the requirement that the force be “by way of correction”. These words, considered in conjunction with the cases, yield two limitations on the content of the protected sphere of conduct.

24 First, the person applying the force must have intended it to be for educative or corrective purposes: Ogg-Moss, supra, at p. 193. Accordingly, s. 43 cannot exculpate outbursts of violence against a child motivated by anger or animated by frustration. It admits into its sphere of immunity only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolic disapproval of his or her behaviour. The purpose of the force must always be the education or discipline of the child: Ogg-Moss, supra, at p. 193.

25 Second, the child must be capable of benefiting from the correction. This requires the capacity to learn and the possibility of successful correction. Force against children under two cannot be corrective, since on the evidence they are incapable of understanding why they are hit (trial decision (2000), 2000 CanLII 22397 (ON SC), 49 O.R. (3d) 662, at para. 17). A child may also be incapable of learning from the application of force because of disability or some other contextual factor. In these cases, force will not be “corrective” and will not fall within the sphere of immunity provided by s. 43.

26 The second requirement of s. 43 is that the force be “reasonable under the circumstances”. The Foundation argues that this term fails to sufficiently delineate the area of risk and constitutes an invitation to discretionary ad hoc law enforcement. It argues that police officers, prosecutors and judges too often assess the reasonableness of corrective force by reference to their personal experiences and beliefs, rendering enforcement of s. 43 arbitrary and subjective. In support, it points to the decision of the Manitoba Court of Appeal in R. v. K. (M.) (1992), 1992 CanLII 2765 (MB CA), 74 C.C.C. (3d) 108, in which, at p. 109, O’Sullivan J.A. stated that “[t]he discipline administered to the boy in question in these proceedings [a kick to the rear] was mild indeed compared to the discipline I received in my home”.

27 Against this argument, the law has long used reasonableness to delineate areas of risk, without incurring the dangers of vagueness. The law of negligence, which has blossomed in recent decades to govern private actions in nearly all spheres of human activity, is founded upon the presumption that individuals are capable of governing their conduct in accordance with the standard of what is “reasonable”. But reasonableness as a guide to conduct is not confined to the law of negligence. The criminal law also relies on it. The Criminal Code expects that police officers will know what constitutes “reasonable grounds” for believing that an offence has been committed, such that an arrest can be made (s. 495); that an individual will know what constitutes “reasonable steps” to obtain consent to sexual contact (s. 273.2(b)); and that surgeons, in order to be exempted from criminal liability, will judge whether performing an operation is “reasonable” in “all the circumstances of the case” (s. 45). These are merely a few examples; the criminal law is thick with the notion of “reasonableness”.

28 The reality is that the term “reasonable” gives varying degrees of guidance, depending upon the statutory and factual context. It does not insulate a law against a charge of vagueness. Nor, however, does it automatically mean that a law is void for vagueness. In each case, the question is whether the term, considered in light of principles of statutory interpretation and decided cases, delineates an area of risk and avoids the danger of arbitrary ad hoc law enforcement.

29 Is s. 43’s reliance on reasonableness, considered in this way, unconstitutionally vague? Does it indicate what conduct risks criminal sanction and provide a principled basis for enforcement? While the words on their face are broad, a number of implicit limitations add precision.

30 The first limitation arises from the behaviour for which s. 43 provides an exemption, simple non-consensual application of force. Section 43 does not exempt from criminal sanction conduct that causes harm or raises a reasonable prospect of harm. It can be invoked only in cases of non-consensual application of force that results neither in harm nor in the prospect of bodily harm. This limits its operation to the mildest forms of assault. People must know that if their conduct raises an apprehension of bodily harm they cannot rely on s. 43. Similarly, police officers and judges must know that the defence cannot be raised in such circumstances.

31 Within this limited area of application, further precision on what is reasonable under the circumstances may be derived from international treaty obligations. Statutes should be construed to comply with Canada’s international obligations: Ordon Estate v. Grail, 1998 CanLII 771 (SCC), [1998] 3 S.C.R. 437, at para. 137. Canada’s international commitments confirm that physical correction that either harms or degrades a child is unreasonable.

32 Canada is a party to the United Nations Convention on the Rights of the Child. Article 5 of the Convention requires state parties to

respect the responsibilities, rights and duties of parents or . . . other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

Article 19(1) requires the state party to

protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. [Emphasis added.]

Finally, Article 37(a) requires state parties to ensure that “[n]o child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment” (emphasis added). This language is also found in the International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47, to which Canada is a party. Article 7 of the Covenant states that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The preamble to the International Covenant on Civil and Political Rights makes it clear that its provisions apply to “all members of the human family”. From these international obligations, it follows that what is “reasonable under the circumstances” will seek to avoid harm to the child and will never include cruel, inhuman or degrading treatment.

33 Neither the Convention on the Rights of the Child nor the International Covenant on Civil and Political Rights explicitly require state parties to ban all corporal punishment of children. In the process of monitoring compliance with the International Covenant on Civil and Political Rights, however, the Human Rights Committee of the United Nations has expressed the view that corporal punishment of children in schools engages Article 7’s prohibition of degrading treatment or punishment: see for example, Report of the Human Rights Committee, vol. I, UN GAOR, Fiftieth Session, Supp. No. 40 (A/50/40) (1995), at paras. 426 and 434; Report of the Human Rights Committee, vol. I, UN GAOR, Fifty-fourth Session, Supp. No. 40 (A/54/40) (1999), at para. 358; Report of the Human Rights Committee, vol. I, UN GAOR, Fifty-fifth Session, Supp. No. 40 (A/55/40) (2000), at paras. 306 and 429. The Committee has not expressed a similar opinion regarding parental use of mild corporal punishment.

34 Section 43’s ambit is further defined by the direction to consider the circumstances under which corrective force is used. National and international precedents have set out factors to be considered. Article 3 of the European Convention on Human Rights, 213 U.N.T.S. 221, forbids inhuman and degrading treatment. The European Court of Human Rights, in determining whether parental treatment of a child was severe enough to fall within the scope of Article 3, held that assessment must take account of “all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim”: Eur. Court H.R., A. v. United Kingdom, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2699. These factors properly focus on the prospective effect of the corrective force upon the child, as required by s. 43.

35 By contrast, it is improper to retrospectively focus on the gravity of a child’s wrongdoing, which invites a punitive rather than corrective focus. “[T]he nature of the offence calling for correction”, an additional factor suggested in R. v. Dupperon (1984), 1984 CanLII 61 (SK CA), 16 C.C.C. (3d) 453 (Sask. C.A.), at p. 460, is thus not a relevant contextual consideration. The focus under s. 43 is on the correction of the child, not on the gravity of the precipitating event. Obviously, force employed in the absence of any behaviour requiring correction by definition cannot be corrective.

36 Determining what is “reasonable under the circumstances” in the case of child discipline is also assisted by social consensus and expert evidence on what constitutes reasonable corrective discipline. The criminal law often uses the concept of reasonableness to accommodate evolving mores and avoid successive “fine-tuning” amendments. It is implicit in this technique that current social consensus on what is reasonable may be considered. It is wrong for caregivers or judges to apply their own subjective notions of what is reasonable; s. 43 demands an objective appraisal based on current learning and consensus. Substantial consensus, particularly when supported by expert evidence, can provide guidance and reduce the danger of arbitrary, subjective decision making.

37 Based on the evidence currently before the Court, there are significant areas of agreement among the experts on both sides of the issue (trial decision, at para. 17). Corporal punishment of children under two years is harmful to them, and has no corrective value given the cognitive limitations of children under two years of age. Corporal punishment of teenagers is harmful, because it can induce aggressive or antisocial behaviour. Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful. Corporal punishment which involves slaps or blows to the head is harmful. These types of punishment, we may conclude, will not be reasonable.

38 Contemporary social consensus is that, while teachers may sometimes use corrective force to remove children from classrooms or secure compliance with instructions, the use of corporal punishment by teachers is not acceptable. Many school boards forbid the use of corporal punishment, and some provinces and territories have legislatively prohibited its use by teachers: see, e.g., Schools Act, 1997, S.N.L. 1997, c. S-12.2, s. 42; School Act, R.S.B.C. 1996, c. 412, s. 76(3); Education Act, S.N.B. 1997, c. E-1.12, s. 23; School Act, R.S.P.E.I. 1988, c. S-2.1, s. 73; Education Act, S.N.W.T. 1995, c. 28, s. 34(3); Education Act, S.Y. 1989-90, c. 25, s. 36. This consensus is consistent with Canada’s international obligations, given the findings of the Human Rights Committee of the United Nations noted above. Section 43 will protect a teacher who uses reasonable, corrective force to restrain or remove a child in appropriate circumstances. Substantial societal consensus, supported by expert evidence and Canada’s treaty obligations, indicates that corporal punishment by teachers is unreasonable.

39 Finally, judicial interpretation may assist in defining “reasonable under the circumstances” under s. 43. It must be conceded at the outset that judicial decisions on s. 43 in the past have sometimes been unclear and inconsistent, sending a muddled message as to what is and is not permitted. In many cases discussed by Arbour J., judges failed to acknowledge the evolutive nature of the standard of reasonableness, and gave undue authority to outdated conceptions of reasonable correction. On occasion, judges erroneously applied their own subjective views on what constitutes reasonable discipline — views as varied as different judges’ backgrounds. In addition, charges of assaultive discipline were seldom viewed as sufficiently serious to merit in-depth research and expert evidence or the appeals which might have permitted a unified national standard to emerge. However, “[t]he fact that a particular legislative term is open to varying interpretations by the courts is not fatal”: Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123, at p. 1157. This case, and those that build on it, may permit a more uniform approach to “reasonable under the circumstances” than has prevailed in the past. Again, the issue is not whether s. 43 has provided enough guidance in the past, but whether it expresses a standard that can be given a core meaning in tune with contemporary consensus.

40 When these considerations are taken together, a solid core of meaning emerges for “reasonable under the circumstances”, sufficient to establish a zone in which discipline risks criminal sanction. Generally, s. 43 exempts from criminal sanction only minor corrective force of a transitory and trifling nature. On the basis of current expert consensus, it does not apply to corporal punishment of children under two or teenagers. Degrading, inhuman or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the head is unreasonable. Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment. Coupled with the requirement that the conduct be corrective, which rules out conduct stemming from the caregiver’s frustration, loss of temper or abusive personality, a consistent picture emerges of the area covered by s. 43. It is wrong for law enforcement officers or judges to apply their own subjective views of what is “reasonable under the circumstances”; the test is objective. The question must be considered in context and in light of all the circumstances of the case. The gravity of the precipitating event is not relevant.

41 The fact that borderline cases may be anticipated is not fatal. As Gonthier J. stated in Nova Scotia Pharmaceutical, supra, at p. 639, “it is inherent to our legal system that some conduct will fall along the boundaries of the area of risk; no definite prediction can then be made. Guidance, not direction, of conduct is a more realistic objective”.

42 Section 43 achieves this objective. It sets real boundaries and delineates a risk zone for criminal sanction. The prudent parent or teacher will refrain from conduct that approaches those boundaries, while law enforcement officers and judges will proceed with them in mind. It does not violate the principle of fundamental justice that laws must not be vague or arbitrary.

43 My colleague, Arbour J., by contrast, takes the view that s. 43 is unconstitutionally vague, a point of view also expressed by Deschamps J. Arbour J. argues first that the foregoing analysis amounts to an impermissible reading down of s. 43. This contention is answered by the evidence in this case, which established a solid core of meaning for s. 43; to construe terms like “reasonable under the circumstances” by reference to evidence and argument is a common and accepted function of courts interpreting the criminal law. To interpret “reasonable” in light of the evidence is not judicial amendment, but judicial interpretation. It is a common practice, given the number of criminal offences conditioned by the term “reasonable”. If “it is the function of the appellate courts to rein in overly elastic interpretations” (Binnie J., at para. 122), it is equally their function to define the scope of criminal defences.

44 Arbour J. also argues that unconstitutional vagueness is established by the fact that courts in the past have applied s. 43 inconsistently. Again, the inference does not follow. Vagueness is not argued on the basis of whether a provision has been interpreted consistently in the past, but whether it is capable of providing guidance for the future. Inconsistent and erroneous applications are not uncommon in criminal law, where many provisions admit of difficulty; we do not say that this makes them unconstitutional. Rather, we rely on appellate courts to clarify the meaning so that future application may be more consistent. I agree with Arbour J. that Canadians would find the decisions in many of the past cases on s. 43 to be seriously objectionable. However, the discomfort of Canadians in the face of such unwarranted acts of violence toward children merely demonstrates that it is possible to define what corrective force is reasonable in the circumstances. Finally, Arbour J. argues that parents who face criminal charges as a result of corrective force will be able to rely on the defences of necessity and “de minimis”. The defence of necessity, I agree, is available, but only in situations where corrective force is not in issue, like saving a child from imminent danger. As for the defence of de minimis, it is equally or more vague and difficult in application than the reasonableness defence offered by s. 43.

(2) Overbreadth

45 Section 43 of the Criminal Code refers to corrective force against children generally. The Foundation argues that this is overbroad because children under the age of two are not capable of correction and children over the age of 12 will only be harmed by corrective force. These classes of children, it is argued, should have been excluded.

46 This concern is addressed by Parliament’s decision to confine the exemption to reasonable correction, discussed above. Experts consistently indicate that force applied to a child too young to be capable of learning from physical correction is not corrective force. Similarly, current expert consensus indicates that corporal punishment of teenagers creates a serious risk of psychological harm: employing it would thus be unreasonable. There may however be instances in which a parent or school teacher reasonably uses corrective force to restrain or remove an adolescent from a particular situation, falling short of corporal punishment. Section 43 does not permit force that cannot correct or is unreasonable. It follows that it is not overbroad.

II. Does Section 43 of the Criminal Code Offend Section 12 of the Charter?

47 Section 12 of the Charter guarantees “the right not to be subjected to any cruel and unusual treatment or punishment”. The Foundation argues that s. 43 offends s.12 by authorizing the use of corrective force against children. In order to engage s. 12, the Foundation must show both (a) that s. 43 involves some treatment or punishment by the state (Rodriguez, supra, at pp. 608-9), and (b) that such treatment is “cruel and unusual”. These conditions are not met in this case.

48 Section 43 exculpates corrective force by parents or teachers. Corrective force by parents in the family setting is not treatment by the state. Teachers, however, may be employed by the state, raising the question of whether their use of corrective force constitutes “treatment” by the state.

49 It is unnecessary to answer this question since the conduct permitted by s. 43 does not in any event rise to the level of being “cruel and unusual”, or “so excessive as to outrage standards of decency”: R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1072; Harvey v. New Brunswick (Attorney General), 1996 CanLII 163 (SCC), [1996] 2 S.C.R. 876, at para. 34. Section 43 permits only corrective force that is reasonable. Conduct cannot be at once both reasonable and an outrage to standards of decency. Corrective force that might rise to the level of “cruel and unusual” remains subject to criminal prosecution.

III. Does Section 43 of the Criminal Code Offend Section 15 of the Charter?

50 Section 43 permits conduct toward children that would be criminal in the case of adult victims. The Foundation argues that this distinction violates s. 15 of the Charter, which provides that “[e]very individual is equal before and under the law” without discrimination. More particularly, the Foundation argues that this decriminalization discriminates against children by sending the message that a child is “less capable, or less worthy of recognition or value as a human being or as a member of Canadian society”: Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, at para. 51. This, it argues, offends the purpose of s. 15, to “prevent the violation of essential human dignity and freedom”: Law, supra, at para. 51. Equality can be assured, in the Foundation’s submission, only if the criminal law treats simple assaults on children in the disciplinary context the same as it treats simple assaults on adults.

51 The difficulty with this argument, as we shall see, is that it equates equal treatment with identical treatment, a proposition which our jurisprudence has consistently rejected. In fact, declining to bring the blunt hand of the criminal law down on minor disciplinary contacts of the nature described in the previous section reflects the resultant impact this would have on the interests of the child and on family and school relationships. Parliament’s choice not to criminalize this conduct does not devalue or discriminate against children, but responds to the reality of their lives by addressing their need for safety and security in an age-appropriate manner.

A. The Appropriate Perspective

52 Section 43 makes a distinction on the basis of age, which s. 15(1) lists as a prohibited ground of discrimination. The only question is whether this distinction is discriminatory under s. 15(1) of the Charter.

53 Before turning to whether s. 43 is discriminatory, it is necessary to discuss the matter of perspective. The test is whether a reasonable person possessing the claimant’s attributes and in the claimant’s circumstances would conclude that the law marginalizes the claimant or treats her as less worthy on the basis of irrelevant characteristics: Law, supra. Applied to a child claimant, this test may well confront us with the fiction of the reasonable, fully apprised preschool-aged child. The best we can do is to adopt the perspective of the reasonable person acting on behalf of a child, who seriously considers and values the child’s views and developmental needs. To say this, however, is not to minimize the subjective component; a court assessing an equality claim involving children must do its best to take into account the subjective viewpoint of the child, which will often include a sense of relative disempowerment and vulnerability.

B. Is Discrimination Made Out in This Case?

54 Against this backdrop, the question may be put as follows: viewed from the perspective of the reasonable person identified above, does Parliament’s choice not to criminalize reasonable use of corrective force against children offend their human dignity and freedom, by marginalizing them or treating them as less worthy without regard to their actual circumstances?

55 In Law, supra, Iacobucci J. listed four factors helpful in answering this question: (1) pre-existing disadvantage; (2) correspondence between the distinction and the claimant’s characteristics or circumstances; (3) the existence of ameliorative purposes or effects; and (4) the nature of the interest affected.

56 The first Law factor, vulnerability and pre-existing disadvantage, is clearly met in this case. Children are a highly vulnerable group. Similarly, the fourth factor is met. The nature of the interest affected — physical integrity — is profound. No one contends that s. 43 is designed to ameliorate the condition of another more disadvantaged group: the third factor. This leaves the second factor: whether s. 43 fails to correspond to the actual needs and circumstances of children.

57 This factor acknowledges that a law that “properly accommodates the claimant’s needs, capacities, and circumstances” will not generally offend s. 15(1): Law, supra, at para. 70. “By contrast, a law that imposes restrictions or denies benefits on account of presumed or unjustly attributed characteristics is likely to deny essential human worth and to be discriminatory”: Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, 2002 SCC 84, at para. 37. The question in this case is whether lack of correspondence, in this sense, exists.

58 Children need to be protected from abusive treatment. They are vulnerable members of Canadian society and Parliament and the Executive act admirably when they shield children from psychological and physical harm. In so acting, the government responds to the critical need of all children for a safe environment. Yet this is not the only need of children. Children also depend on parents and teachers for guidance and discipline, to protect them from harm and to promote their healthy development within society. A stable and secure family and school setting is essential to this growth process.

59 Section 43 is Parliament’s attempt to accommodate both of these needs. It provides parents and teachers with the ability to carry out the reasonable education of the child without the threat of sanction by the criminal law. The criminal law will decisively condemn and punish force that harms children, is part of a pattern of abuse, or is simply the angry or frustrated imposition of violence against children; in this way, by decriminalizing only minimal force of transient or trivial impact, s. 43 is sensitive to children’s need for a safe environment. But s. 43 also ensures the criminal law will not be used where the force is part of a genuine effort to educate the child, poses no reasonable risk of harm that is more than transitory and trifling, and is reasonable under the circumstances. Introducing the criminal law into children’s families and educational environments in such circumstances would harm children more than help them. So Parliament has decided not to do so, preferring the approach of educating parents against physical discipline.

60 This decision, far from ignoring the reality of children’s lives, is grounded in their lived experience. The criminal law is the most powerful tool at Parliament’s disposal. Yet it is a blunt instrument whose power can also be destructive of family and educational relationships. As the Ouimet Report explained:

To designate certain conduct as criminal in an attempt to control anti-social behaviour should be a last step. Criminal law traditionally, and perhaps inherently, has involved the imposition of a sanction. This sanction, whether in the form of arrest, summons, trial, conviction, punishment or publicity is, in the view of the Committee, to be employed only as an unavoidable necessity. Men and women may have their lives, public and private, destroyed; families may be broken up; the state may be put to considerable expense: all these consequences are to be taken into account when determining whether a particular kind of conduct is so obnoxious to social values that it is to be included in the catalogue of crimes. If there is any other course open to society when threatened, then that course is to be preferred. The deliberate infliction of punishment or any other state interference with human freedom is to be justified only where manifest evil would result from failure to interfere. [Emphasis added.]

(Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections (1969), at pp. 12-13)

Concluding that s. 43 should not be repealed, the Law Reform Commission of Canada pointed out that repeal “could have unfortunate consequences, consequences worse than those ensuing from retention of the section”, and which would “expose the family to the incursion of state law enforcement for every trivial slap or spanking”. “[I]s this”, it asked, “the sort of society in which we would want to live?” (Law Reform Commission of Canada, Working Paper 38, Assault (1984), at p. 44)

61 The trial judge in this case found that experts on both sides were agreed that only abusive physical conduct should be criminalized and that extending the criminal law to all disciplinary force “would have a negative impact upon families and hinder parental and teacher efforts to nurture children” (trial judge, at para. 17).

62 The reality is that without s. 43, Canada’s broad assault law would criminalize force falling far short of what we think of as corporal punishment, like placing an unwilling child in a chair for a five-minute “time-out”. The decision not to criminalize such conduct is not grounded in devaluation of the child, but in a concern that to do so risks ruining lives and breaking up families — a burden that in large part would be borne by children and outweigh any benefit derived from applying the criminal process.

63 The Foundation argues that these harms could be effectively avoided by the exercise of prosecutorial discretion. However, as the Foundation asserts in its argument on vagueness, our goal should be the rule of law, not the rule of individual discretion. Moreover, if it is contrary to s. 15(1) for legislation to deny children the benefit of the criminal law on the basis of their age and consequent circumstances, it is equally discriminatory for a state agent (e.g., a police officer or prosecutor) to choose not to charge or prosecute on the same basis.

64 The Foundation argues that this is not the original purpose of the law and does not reflect its actual effects. In the Foundation’s view, s. 43 was intended, and continues, to promote the view that the use of corrective force against children is not simply permitted for the purposes of the criminal law, but laudable because it is “good for children”. In making this argument, the Foundation relies upon s. 43’s statement that parents and teachers are “justified” in the use of reasonable corrective force. Considering “justification” in Ogg-Moss, supra, Dickson J. (as he then was) stated that s. 43 exculpates force in the correction of the child “because it considers such an action not a wrongful, but a rightful, one” (p.193 (emphasis in original)). The Foundation submits that as a “justification”, s. 43 necessarily identifies praise-worthy conduct.

65 In my view, this position is overstated. We cannot conclude that Parliament intended to endorse using force against children from a single word, without also considering the history and context of the provision. In our first Criminal Code, enacted in 1892 (S.C. 1892, c. 29), Parliament used “lawful” instead of “justified” in the analogous provision:

55. It is lawful for every parent, or person in the place of a parent, schoolmaster or master, to use force by way of correction towards any child, pupil or apprentice under his care, provided that such force is reasonable under the circumstances.

It did so even though the term “justified” appeared in other defences such as the use of force to prevent the commission of a major offence (s. 44) and self-defence (s. 45) — defences that we classically associate with moral approval. So at this time, it is clear that Parliament was not asserting the exempted force was moral or good. It was not until the 1953-54 re-enactment of the Criminal Code (S.C. 1953-54, c. 51) that Parliament replaced “it is lawful” with “justified”. We do not know why it did so. We do know that the change was not discussed in Parliament, and that there is no indication that Parliament suddenly felt that the reasonable force in the correction of children now demanded the state’s explicit moral approval. Finally, we know that the government has adopted a program designed to educate parents and caregivers on the potentially negative effects of using corporal punishment against children. Viewing s. 43 in light of its history and the larger legislative and policy context, it is difficult to conclude that Parliament intended by using the word “justify” to send the message that using force against children is “right” or “good”. The essence of s. 43 is not Parliament’s endorsement of the use of force against children; it is the exemption from criminal sanction for their parents and teachers in the course of reasonable correction.

66 My colleague, Binnie J., suggests that the negative impact of criminalizing minor corrective force is irrelevant to the s. 15 equality analysis and should only be considered at the stage of justifying a breach of s. 15 under s. 1 of the Charter (paras. 74 and 85). More particularly, he argues, at para. 100, that “[s]ection 43 protects parents and teachers, not children” (emphasis added), and therefore inquiry into the impugned laws precludes correspondence to children’s needs, capacities and circumstances in the s. 15 analysis. With respect, I cannot agree. The claimants here are children. The Law analysis requires that the Court consider whether the limited exemption from criminal sanction for parents and teachers corresponds to the needs of children. This is a necessary step in determining whether the distinction demeans children and treats them as less worthy. We should not artificially truncate the s. 15 equality analysis because similar considerations may be relevant to justification in the event a breach of s. 15 is established.

67 Some argue that, even if the overall effect of s. 43 is salutary, for some children the effects of s. 43 will turn out to be more detrimental than beneficial. To this, two responses lie. First, where reasonable corrective force slips into harmful, degrading or abusive conduct, the criminal law remains ready to respond. Secondly, as Iacobucci J. stated in Law, supra, compliance with s. 15(1) of the Charter does not require “that legislation must always correspond perfectly with social reality” (para. 105). Rather,

[n]o matter what measures the government adopts, there will always be some individuals for whom a different set of measures might have been preferable. The fact that some people may fall through a program’s cracks does not show that the law fails to consider the overall needs and circumstances of the group of individuals affected . . .

(Gosselin, supra, at para. 55)

68 I am satisfied that a reasonable person acting on behalf of a child, apprised of the harms of criminalization that s. 43 avoids, the presence of other governmental initiatives to reduce the use of corporal punishment, and the fact that abusive and harmful conduct is still prohibited by the criminal law, would not conclude that the child’s dignity has been offended in the manner contemplated by s. 15(1). Children often feel a sense of disempowerment and vulnerability; this reality must be considered when assessing the impact of s. 43 on a child’s sense of dignity. Yet, as emphasized, the force permitted is limited and must be set against the reality of a child’s mother or father being charged and pulled into the criminal justice system, with its attendant rupture of the family setting, or a teacher being detained pending bail, with the inevitable harm to the child’s crucial educative setting. Section 43 is not arbitrarily demeaning. It does not discriminate. Rather, it is firmly grounded in the actual needs and circumstances of children. I conclude that s. 43 does not offend s. 15(1) of the Charter.

IV. Conclusion

69 I would dismiss the appeal. The Canadian Foundation for Children, Youth and the Law has, on behalf of children, brought an important issue of constitutional and criminal law that was not otherwise capable of coming before the Court. This justifies deviating from the normal costs rule and supports an order that both parties bear their own costs throughout.

70 I would answer the constitutional questions as follows:

1. Does s. 43 of the Criminal Code, R.S.C. 1985, c. C‑46, infringe the rights of children under s. 7 of the Canadian Charter of Rights and Freedoms?

Answer: No.

2. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society within the meaning of s. 1 of the Canadian Charter of Rights and Freedoms?

Answer: It is unnecessary to decide this question.

3. Does s. 43 of the Criminal Code, R.S.C. 1985, c. C‑46, infringe the rights of children under s. 12 of the Canadian Charter of Rights and Freedoms?

Answer: No.

4. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society within the meaning of s. 1 of the Canadian Charter of Rights and Freedoms?

Answer: It is unnecessary to decide this question.

5. Does s. 43 of the Criminal Code, R.S.C. 1985, c. C‑46, infringe the rights of children under s. 15(1) of the Canadian Charter of Rights and Freedoms?

Answer: No.

6. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society within the meaning of s. 1 of the Canadian Charter of Rights and Freedoms?

Answer: It is unnecessary to decide this question.

The following are the reasons delivered by

71 Binnie J. (dissenting in part) — A child is guaranteed “equal protection and equal benefit of the law” by s. 15(1) of the Canadian Charter of Rights and Freedoms. Section 43 of the Criminal Code, R.S.C. 1985, c. C-46, denies children the protection of the criminal law against the infliction of physical “force” that would be a criminal assault if used against an adult. The sole reason for children being placed in this inferior position is that they are children.

72 Notwithstanding these facts, my colleague, the Chief Justice, is of the view that the equality rights of the child are not infringed by s. 43 because “a reasonable person acting on behalf of a child . . . would not conclude that the child’s dignity has been offended in the manner contemplated by s. 15(1)” (para. 68). With all due respect to the majority of my colleagues, there can be few things that more effectively designate children as second-class citizens than stripping them of the ordinary protection of the assault provisions of the Criminal Code. Such stripping of protection is destructive of dignity from any perspective, including that of a child. Protection of physical integrity against the use of unlawful force is a fundamental value that is applicable to all. The “dignity” requirement, which gathered full force in this Court’s judgment in Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, provides a useful and important insight into the purpose of s. 15(1), but it should not become an unpredictable side-wind powerful enough to single-handedly blow away the protection that the Criminal Code would otherwise provide.

73 I therefore agree with my colleague Deschamps J., albeit for somewhat different reasons, that there has been a prima facie infringement of children’s equality rights guaranteed by s. 15(1). I would dismiss the challenges brought by the appellant under s. 7 and s. 12. “Reasonableness” is not a standard that is unconstitutionally vague (s. 7), nor would s. 43 condone corrective force that is “cruel and unusual” (s. 12).

74 My respectful disagreement with the majority opinion is not only with the narrowed scope of s. 15(1) protection, but with the technique by which this narrowing is accomplished, namely by moving into s. 15(1) a range of considerations that, in my view, ought properly to be left to government justification under s. 1. The Chief Justice states, for example, that there are good reasons for “declining to bring the blunt hand of the criminal law down on minor disciplinary contacts of the nature described in the previous section [with] the resultant impact this would have on the interests of the child and on family and school relationships” (para. 51), and that families should be protected from “the incursion of state law enforcement for every trivial slap or spanking” (para. 60). These are important matters but they are not matters that relate to equality. They relate to a justification to deny equality. These are arguments that say that in light of broader social considerations related to the values of privacy in family life, and despite the infringement of the child’s equality rights, a degree of parental immunity is nevertheless a reasonable limit demonstrably justified in a free and democratic society.

75 As will be seen, I would uphold s. 43 in relation to parents or those who stand in the place of parents, and in that respect dismiss the appeal. While the equality rights of the children (i.e., persons under 18 years old) are prima facie infringed by s. 43, I conclude that in balancing the needs of the claimants against the legitimate needs of our collective social existence, the infringement is a reasonable limit that has been justified under s. 1.

76 On the other hand, the s. 1 justification for extending parent-like protection to teachers is not convincing. In my view, the references to “schoolteacher” and “pupil” should be struck out of s. 43 and declared to be null and void.

77 I propose to organize my reasons for these conclusions under the following headings:

1. The proper interpretation of s. 43 of the Criminal Code;

2. The scope of s. 15(1) of the Charter;

3. The meaning of discrimination and the “correspondence” factor;

4. Resurgence of the “relevance” factor;

5. The violation of human dignity;

6. The s. 1 justification

(a) in relation to parents or persons standing in the place of parents;

(b) in relation to teachers.

1. The Proper Interpretation of Section 43 of the Criminal Code

78 Section 43 reads as follows:

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.

79 In Ogg-Moss v. The Queen, 1984 CanLII 77 (SCC), [1984] 2 S.C.R. 173, the Court held that the section applied in the case of force applied to “a child” which was held to mean “a person chronologically younger than the age of majority” (p. 186) which, in Ontario, pursuant to the Age of Majority and Accountability Act, R.S.O. 1990, c. A.7, s. 1, is 18 years.

80 As will be discussed, the assault provisions of the Criminal Code are extremely broad. In addition to the obvious purpose of maintaining public order, the prohibition of assault and battery has been considered since the time of Blackstone to protect the “sacred” right of everyone to physical inviolability:

. . . the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner.

(W. Blackstone, Commentaries on the Laws of England, Book III, 1768, at p. 120)

More recently, it was stated in this Court:

Clearly, the purpose of the assault scheme is much broader than just the protection of persons from serious physical harm. The assault scheme is aimed more generally at protecting people’s physical integrity.

(R. v. Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371, L’Heureux-Dubé J. concurring, at para. 11)

81 The majority read significant limitations into the scope of s. 43 protection, concluding that it provides no defence or justification where force is used (i) against children under two, or (ii) against children of any age suffering a disability, or (iii) that “causes harm or raises a reasonable prospect of harm” to children of two years or older, or (iv) that is degrading to children two years or older, or (v) that constitutes corporal punishment of teenagers, or (vi) that includes the use of objects such as a belt on any child of whatever age, or (vii) which involves slaps or blows to the head. Such an interpretive exercise, gearing itself off the references in s. 43 to “correction” and “reasonable under the circumstances”, introduces a series of classifications and sub-classifications which are helpful to the protection of children, but do not relieve a court from the statutory direction to consider what is reasonable in all the circumstances. The accused, too, is entitled to receive the full protection that the s. 43 defence, fairly interpreted, allows. Moreover, my colleagues’ differentiation between the type of protection given to teachers from that given to parents, and the confinement of protection of teachers to matters affecting order in the schools as opposed to more general “correction”, could be seen as going beyond a definition of “the scope of criminal defences” (reasons of the Chief Justice, at para. 43) and pushing the boundary between judicial interpretation and judicial amendment.

82 Nevertheless, as my disagreement with the majority relates to the interpretation of s. 15(1) of the Charter, rather than statutory interpretation, these reasons will focus on s. 15(1) and its relationship to s. 1. The interpretation of s. 43 offered by the Chief Justice still leaves considerable scope for “corporal punishment” of children between 2 and 12, including “sober, reasoned uses of force” (para. 24) and “corrective force to restrain or remove an adolescent [i.e., 12 to 18 years old] from a particular situation, falling short of corporal punishment” (para. 46). Section 43, thus interpreted, still withholds from children protection of their physical integrity in circumstances where the amount of force used would be criminal if used against an adult.

2. The Scope of Section 15(1) of the Charter

83 The legislative history of s. 15 is of some interest here. As originally proposed, what is now s. 15(1) was more tightly circumscribed. The original draft provided:

Non-discrimination Rights

Everyone has the right to equality before the law and to the equal protection of the law without discrimination because of race, national or ethnic origin, colour, religion, age or sex.

(The Canadian Constitution 1980: Proposed Resolution respecting the Constitution of Canada (1980), at p. 20)

84 As a result of the deliberations of the Special Joint Committee of the Senate and of the House of Commons on the Constitution, s. 15(1) as recommended and ultimately adopted had blossomed into a full equality rights clause:

Equality Rights

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The addition of the words “and, in particular” was seemingly designed to bifurcate the section, thereby liberating the first branch (the broad equality right) from the confines of the second branch (the traditional grounds of prohibited discrimination). Thus there were some early judicial efforts to measure legislative classifications against the principles of equal protection and equal benefit of the law even where the ground of distinction did not relate to an enumerated or analogous ground: see, e.g., Streng v. Township of Winchester (1986), 1986 CanLII 2640 (ON SC), 31 D.L.R. (4th) 734 (Ont. H.C.); Jones v. Ontario (Attorney General) (1988), 1988 CanLII 4700 (ON SC), 65 O.R. (2d) 737 (H.C.); and Piercey v. General Bakeries Ltd. (1986), 1986 CanLII 107 (NL SC), 31 D.L.R. (4th) 373 (Nfld. S.C. (T.D.)). This Court, in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, concluded that a narrower view of s. 15(1) would best fulfill its purpose. McIntyre J. identified differential treatment on the basis of the listed or analogous personal characteristics as an essential condition precedent to s. 15(1) relief. However wise that interpretation, based as much as anything on the judiciary’s reluctance to accept an invitation to second-guess Parliament on every legislative classification, irrespective of the ground giving rise to the distinction, Andrews nevertheless had the effect of narrowing the potential constituency of s. 15(1) claimants. Complainants who argued generally about unequal treatment were held not to be covered. A claimant had to identify a particular basis for the unequal treatment and show that the basis thus identified resided in a personal characteristic, either listed in s. 15(1) or analogous to those that were listed.

85 We should be careful in this case not to additionally circumscribe s. 15(1) protection by burdening those who still remain within its coverage with making proof of matters (sometimes proof of a negative) that ought to be dealt with by governments by way of justification under s. 1.

3. The Meaning of Discrimination and the “Correspondence” Factor

86 In Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69, at para. 110, a majority of the Court summarized the approach to s. 15(1) claims as follows:

It is now clearly established that the [equality] analysis proceeds in three stages with close regard to context. At the first stage the claimant must show that the law, program or activity imposes differential treatment between the claimant and others with whom the claimant may fairly claim equality. The second stage requires the claimant to demonstrate that this differentiation is based on one or more of the enumerated or analogous grounds. The third stage requires the claimant to establish that the differentiation amounts to a form of discrimination that has the effect of demeaning the claimant’s human dignity. The “dignity” aspect of the test is designed to weed out trivial or other complaints that do not engage the purpose of the equality provision.

See also Law, supra, at para. 39, and Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, 2002 SCC 84, at para. 17.

87 The Crown concedes that a formal distinction is made in s. 43 on the basis of age, viz., an enumerated ground. However, as the cases have held, distinctions made on enumerated or analogous grounds do not necessarily amount to discrimination. The debate, therefore, shifts to whether the distinction made in s. 43 amounts, in law, to discrimination.

88 The nature of the children’s interest, physical integrity, clearly warrants constitutional protection.

89 There is no doubt, in my view, that s. 43 is caught by the definition of discrimination given by McIntyre J. in Andrews, supra, at pp. 174-75:

I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.

Applying this definition to s. 43, it cannot be disputed that s. 43 intentionally withholds from children the benefit available to everyone else (i.e., adults) of the protection of the assault provisions of the Criminal Code in the circumstances therein contemplated, and that the only reason for this withholding is that they are children. Protection of the Criminal Code is an advantage. Applying the Andrews test as originally laid down, therefore, I believe the claimant has established a prima facie breach of s. 15(1).

90 In Law, this Court, speaking through Iacobucci J., expressly endorsed the Andrews test (paras. 22 and 26), but also went on to synthesize the subsequent case law into a series of propositions designed to add structure to the s. 15(1) analysis. This included the identification of four contextual factors as markers for distinctions that amount to discrimination, “although”, as Iacobucci J. pointed out, “there are undoubtedly others, and not all four factors will necessarily be relevant in every case” (para. 62). The purpose of the contextual factors is to focus attention on the impact of the impugned law — how “severe and localized the . . . consequences [are] on the affected group” (see Gosselin, supra, at para. 63, citing Egan v. Canada, 1995 CanLII 98 (SCC), [1995] 2 S.C.R. 513, at para. 63).

91 The Chief Justice agrees that three of these four contextual factors point to discrimination in this case, including (i) the pre-existing disadvantage, vulnerability, stereotyping or prejudice directed at children, (ii) the nature and scope of the children’s interests affected, namely their physical integrity, and (iii) the fact that s. 43 does not have an ameliorative purpose or effect for a more disadvantaged group. In my colleague’s view, these markers of discrimination are outweighed by the importance of the fourth “contextual factor”, i.e., the alleged correspondence between the actual needs and circumstances of children and the diminished protection they enjoy under s. 43. In her view, the objective of substantive equality (as distinguished from formal equality) justifies the differential treatment of children.

92 I agree with my colleague that the first three “contextual factors” support a finding of discrimination. I also agree with Iacobucci J. in Law that not every factor is relevant in every case. Not every “contextual factor” will point in the same direction, and judgment is required to weigh up the importance of different elements of the context in a particular case.

93 The factor of “correspondence” presents special difficulty because of its potential overlap with s. 1. It was described by Iacobucci J. in Law, at para. 70, as follows:

. . . it will be easier to establish discrimination to the extent that impugned legislation fails to take into account a claimant’s actual situation, and more difficult to establish discrimination to the extent that legislation properly accommodates the claimant’s needs, capacities, and circumstances. [Emphasis added.]

To some extent, the “correspondence” factor was also anticipated in Andrews by McIntyre J. when he said, at p. 169:

[T]he accommodation of differences . . . is the essence of true equality. . . .

94 The “correspondence” factor was also considered in Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241, where a disabled child was placed, against her parents’ wishes, in a special education class. The Court declined to find that special classes for persons with special disabilities amounted to discrimination. There was a reasonable match between the differential treatment (special classes) and the ground of alleged discrimination (disability), even though special classes undermined achievement of the objective of inclusion. This was outweighed in the circumstances by the fact the special classes were in purpose and effect ameliorative of the young girl’s condition.

95 The “correspondence” between grounds and the claimant group’s characteristics or circumstances was also a factor supporting the Court’s decision in Gosselin, supra, that use of a training component in a welfare scheme for recipients under 30 was not discriminatory. The majority held that, “[p]erfect correspondence between a benefit program and the actual needs and circumstances of the claimant group is not required” to comply with the Charter (para. 55). The “polycentric” balancing inherent in formulation of social benefit schemes appears to have played some role in Gosselin as it did in the earlier case of Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28. More recently, in Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54, the Court struck down the separate legislative treatment of injured workers suffering from chronic pain who were denied the regular benefits provided to other disabled workers, but instead were provided a four-week Functional Restoration Program, beyond which no further benefits were available. Gonthier J., writing for the Court, held at para. 91 that “in my view, the gravamen of the appellants’ s. 15 claim is the lack of correspondence between the differential treatment imposed by the [Workers’ Compensation Act] and the true needs and circumstances of chronic pain sufferers” (referring to Law, supra, at paras. 64-65).

96 In these cases, it seems to me, the “correspondence” factor was appropriately used to determine if the legislative distinction reflected equal consideration of people even though, at the end of the day, equal consideration resulted in unequal treatment.

4. Resurgence of the “Relevance” Factor

97 Care must be taken, however, to ensure that the “correspondence” factor is kept to its original purpose as a marker for discrimination and not allowed to become a sort of Trojan horse to bring into s. 15(1) matters that are more properly regarded as “reasonable limits . . . demonstrably justified in a free and democratic society” (s. 1).

98 In particular, there is a danger that the “correspondence” factor will revive the “relevance” debate of the 1990s in which it was contended by some members of the Court that a s. 15(1) rights claimant could be defeated if it were shown that the ground of complaint was “relevant” to achievement of a legitimate legislative objective. This position was advanced by Gonthier J., dissenting, in Miron v. Trudel, 1995 CanLII 97 (SCC), [1995] 2 S.C.R. 418, where he suggested, at para. 15:

This third step thus comprises two aspects: determining the personal characteristic shared by a group and then assessing its relevancy having regard to the functional values underlying the legislation. [Emphasis added.]

The issue in that case was whether common law spouses should be treated the same as married spouses for insurance purposes. In effect, as the onus of proof of an infringement of s. 15(1) lies on the claimants, they were put in the position of having to show that marriage was irrelevant to achievement of the legislative objective. In Gonthier J.’s view, that objective was to promote the benefits of marriage, and achievement of this objective was “relevant” to its denial of the rights of unmarried couples, and s. 15(1) was not therefore infringed. McLachlin J. (as she then was) in her majority reasons, gave the “relevance” point short shrift (at para. 137):

Relevance as the ultimate indicator of non-discrimination suffers from the disadvantage that it may validate distinctions which violate the purpose of s. 15(1). A second problem is that it may lead to enquiries better pursued under s. 1.

99 In my view, the same answer should be given to the argument here that, because children have certain vulnerabilities that “correspond” to (or are relevant to) s. 43’s denial of ordinary Criminal Code protection, then no discrimination is made out.

100 While the child needs the family, the protection of s. 43 is given not to the child but to the parent or teacher who is using “reasonable” force for “correction”. Section 43 protects parents and teachers, not children. A child “needs” no less protection under the Criminal Code than an adult does. That is why, in my view, the social justification for the immunity of parents and teachers should be dealt with under s. 1.

101 The majority view denies equality relief to persons under 18 years old in this case because of the role and importance of family life in our society. However, to proceed in this way, it seems to me, just incorporates the “legitimate objective” element from the s. 1 Oakes test into s. 15, while incidentally switching the onus to the rights claimant to show the legislative objective is not legitimate, and relieving the government of the onus of demonstrating proportionality, including minimal impairment (R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103). One of the stated objectives of Andrews was to keep s. 15(1) and s. 1 analytically distinct. Use of the “correspondence” factor in the wrong circumstances risks breaching that divide.

102 I do not accept that the use of force against a child (that in the absence of s. 43 would result in a criminal conviction) can be said to “correspond” to a child’s “needs, capacities and circumstances” from the vantage point identified by the Chief Justice, namely, that of a “reasonable person acting on behalf of a child, who seriously considers and values the child’s views and developmental needs” (para. 53 (emphasis added)). I have difficulty with the proposition that a child “needs” correction through conduct that, but for s. 43, amounts to a criminal assault that exceeds the de minimis threshold. (If the use of force falls below the de minimis standard, then, as Arbour J. points out, there is an alternative defence available to the accused and no need to resort to s. 43.)

103 As to tailoring the distinction to fit a child’s “capacities and circumstances”, the words “pupil or child” embrace the whole range of human development from birth to 18 years of age. It is difficult to generalize about the “capacities and circumstances” of such a disparate group of people. A 2-year-old and a 12-year-old (let alone a 17-year-old) do not share the same needs, have enormously different capacities and deal with the world in very different circumstances. The fact the Chief Justice finds it necessary to undertake an interpretive exercise that reads into s. 43 multiple sub-classifications of children (according to age) and assaultive behaviour (according to type) shows that a “one size fits all” approach to the “needs, capacities and circumstances” of children does not fit reality. Such an extensive “reading in” exercise, if appropriate, should take place only after an infringement of s. 15(1) is acknowledged, and the Court turns to the issue of the s. 1 justification and the appropriate remedy.

104 In short, I disagree with the view of the majority that s. 43 is “firmly grounded in the actual needs and circumstances of children” (para. 68). I believe the error in this approach is evident, with respect, from the following excerpts from the judgment of the Chief Justice, at paras. 58-60:

Children . . . depend on parents and teachers for guidance and discipline, to protect them from harm and to promote their healthy development within society. A stable and secure family and school setting is essential to this growth process.

. . . Introducing the criminal law into children’s families and educational environments in such circumstances would harm children more than help them. . . .

. . . The criminal law . . . is a blunt instrument whose power can also be destructive of family and educational relationships. . . .

105 Accelerating these societal considerations into the s. 15(1) analysis, instead of requiring the government to establish such matters as “reasonable limits” under s. 1, inappropriately denies children the protection of their right to equal treatment.

5. The Violation of Human Dignity

106 The Court has repeatedly stated that

the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.

(Law, supra, at para. 51, and Gosselin, supra, at para. 20)

The concept of “human dignity” is somewhat elusive, but nevertheless expresses an essential part of the purpose of s. 15(1). It seeks to avoid the mechanical application of the s. 15 analysis to distinctions that do not, appropriately viewed, raise a compelling human rights dimension. This is illustrated, as mentioned earlier, by the Canada Pension Plan cases. The state is required to value each of its citizens equally, but equal consideration of the personal characteristics and strengths of each individual may, in the circumstances of government benefit programs, dictate differential treatment. This is hardly the case here. Few things are more demeaning and disrespectful of fundamental values than to withdraw the full protection of the Criminal Code against deliberate, forcible, unwanted violation of an individual’s physical integrity.

107 I agree entirely with the conclusion of the author of a report entitled “Corporal Punishment as a Means of Correcting Children” (November 1998) by the Quebec Commission des droits de la personne et des droits de la jeunesse (at p. 8):

Corporal punishment violates the child’s dignity, partly due to the humiliation he or she is likely to feel, but mainly due to the lack of respect inherent in the act.

108 Reference should also be made to the analysis of Peter Newell, a witness for the appellants and the author of Children Are People Too: The Case Against Physical Punishment (1989), who wrote, at pp. 2 and 4:

Childhood, too, is an institution. Society, even in those areas like education which are supposedly for the benefit of children, remains unsympathetic to them. All too often children are treated as objects, with no provision made for hearing their views or recognising them as fellow human beings. Children — seen but not heard — face the double jeopardy of discrimination on grounds of age, and discrimination on all the other grounds as well. Giving legal sanction to hitting children confirms and reflects their low status.

The basic argument is that children are people, and hitting people is wrong.

109 Everyone in society is entitled to respect for their person, and to protection against physical force. To deny this protection to children at the hands of their parents, parent-substitutes and teachers is not only disrespectful of a child’s dignity but turns the child, for the purpose of the Criminal Code, into a “second-class citizen” (Ogg-Moss, at p. 187). As Iacobucci J. noted in Law, at para. 53:

Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society.

110 It should not be suggested that because, as Peter Newell notes, a child may not enjoy much dignity anyway in the home or classroom, he or she can be whacked with impunity “by way of correction”.

111 I therefore agree with my colleague, Deschamps J., that s. 43 discriminates against children and infringes their equality rights. The onus falls on the government to justify it.

6. The Section 1 Justification

112 Parents and teachers play very different roles in a child’s life and there is no reason why they should be treated on the same legal plane for the purposes of the criminal assault provisions of the Criminal Code.

(a) In Relation to Parents or Persons Standing in the Place of Parents

113 While s. 43 infringes a child’s s. 15 equality rights by making a distinction that discriminates on the basis of age, it is nonetheless evident that the effect of giving the Criminal Code a larger role in the home would be profound. The heavy machinery of the criminal courts is not designed to deal with domestic disputes of the type envisaged in s. 43. The definition of assault in s. 265 is extremely broad. Parliament could reasonably conclude that the intervention of the police or criminal courts in a child’s home in respect of “reasonable” correction would inhibit rather than encourage the resolution of problems within families. Such an outcome could be judged unacceptable, not because the child’s equality rights are without importance, but because the intervention of the criminal law in the home in the limited circumstances set out in s. 43 comes at too high a cost.

114 It is scarcely necessary to cite authority for the importance of the family in Canadian law. In Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48, at para. 72, L’Heureux-Dubé J. noted that parents must be accorded a relatively large measure of freedom from state interference to raise their children as they see fit. In New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, at para. 76, Lamer C.J. pointed out that parents are presumed to act in their child’s best interests: “Since the best interests of the child are presumed to lie with the parent, the child’s psychological integrity and well-being may be seriously affected by the interference with the parent-child relationship.”

115 These affirmations of the importance of family relationships need to be considered in light of the sweeping definition of assault in s. 265 of the Criminal Code which makes it an offence for a person, without the consent of another person, to apply “force intentionally to that other person, directly or indirectly”, or even to threaten to do so if he or she has a “present ability to effect his purpose”. The s. 1 justification for the “spanking defence” is very much a function of the immense breadth of the definition of criminal assault. One need only pause to reflect on the type of threats routinely issued by Canadian parents to their children in the heat of family altercations. Adolescent or pre-adolescent behaviour occasionally results in physical touching by the parent, unwanted by the child, or the threat thereof, and where reasonable and for the purpose of correction, this type of “assault” could justifiably be seen by Parliament as outside the appropriate sphere of criminal prosecution.

116 Section 265 is very broad on its face and it has been interpreted broadly, because, as pointed out in Blackstone, supra, at p. 120, it has always been considered unworkable to draw a principled distinction between “degrees of violence”. Professor Ashworth adds:

Is it right that the criminal law should extend to mere touchings, however trivial? The traditional justification is that there is no other sensible dividing line, and that this at least declares the law’s regard for the physical integrity of citizens.

(A. Ashworth, Principles of Criminal Law (4th ed. 2003), at p. 319)

117 This near-zero tolerance (i.e., subject to the de minimis principle) for physical intervention continues to be the law, although in R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714, Gonthier J. suggested that, in the family context, the law of assault should have a more nuanced application. Otherwise, he said, at pp. 743-44:

. . . a father would assault his daughter if he attempted to place a scarf around her neck to protect her from the cold but she did not consent to that touching, thinking the scarf ugly or undesirable. . . . That absurd consequence could not have been intended by Parliament.

118 We are not asked in this case to establish the threshold for a criminal “assault” in the family context, or whether the unwanted touching in Gonthier J.’s example could be said to be “by way of correction”. Section 43 presupposes the existence of conduct that does amount to a criminal assault. Section 265 would clearly be triggered by much of the non-violent physical contact that is not out of place growing up in a robust family environment. The appellant points to some other jurisdictions like Sweden, which do without a parental defence provision equivalent to s. 43; but Sweden, at least, has a very different criminal law regime applicable to physical assaults.

119 Section 1 requires a government to show that the objective of the legislation is pressing and substantial. Government must also establish that the means chosen to attain the end are reasonable; this requires showing that: (i) the rights violation is rationally connected to the aim of the legislation, (ii) the impugned provision minimally impairs the Charter guarantee, and (iii) there is proportionality between the effect of the measure and its objective so that the attainment of the legislative goal is not outweighed by the abridgement of the right (Egan, supra, at para. 182; Oakes, supra). In addition, the deleterious effects of the measure must not outweigh its benefits: Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at p. 878.

120 I agree with Goudge J.A. ((2002), 2002 CanLII 21983 (ON CA), 57 O.R. (3d) 511, at para. 59) that the objective of the legislation is pressing and substantial insofar as it permits parents or persons standing in the place of parents

to apply strictly limited corrective force to children without criminal sanctions so that they can carry out their important responsibilities to train and nurture children without the harm that such sanctions would bring to them, to their tasks and to the families concerned.

However, I do not agree with Goudge J.A. that this justification extends to teachers as well.

121 Providing a defence to a criminal prosecution in the circumstances stated in s. 43 is rationally connected to the objective of limiting the intrusion of the Criminal Code into family life.

122 As to minimal impairment, the wording of s. 43 not only permits calibration of the immunity to different circumstances and children of different ages, but it allows for adjustment over time. In this respect, the Crown’s expert, Nicholas Bala, stated:

In the past, the use of belts, straps, rulers, sticks and other similar objects to deliver a punishment was commonly accepted, both by society and the courts, as reasonable in the chastisement of children. Today, most courts hold that, in most circumstances, the use of these objects is excessive. As well, previously, courts have considered punishment causing temporary pain lasting a few days, but without permanent injury, to be reasonable. Today’s courts scrutinize the level of pain, bruises, red marks and other signs of temporary harm carefully. In most cases, when they find that a child has suffered some injury, the teacher, parent or person taking the place of a parent is convicted of assault.

In the past, as Arbour J. demonstrates in her reasons, the elasticity of s. 43 has led to acquittals in some quite shocking circumstances. However, in my view, it is the function of the appellate courts to rein in overly elastic interpretations that undermine the limited purpose of s. 43, which is what the interpretive guidance offered by the Chief Justice is designed to do, provided the courts stop short of judicial amendment.

123 Once the legislative objective is found to be pressing and substantial, I think the proportionality requirements are met by Parliament’s limitation of the s. 43 defence to circumstances where: (i) the force is for corrective purposes, and (ii) the measure of force is shown to be reasonable under the circumstances. What is reasonable in relation to achievement of the legitimate legislative objective will not, by definition, be disproportionate to such achievement. Moreover, the salutary effects of s. 43 exceed its potential deleterious effects when one considers that the assault provisions of the Criminal Code are just a part, and perhaps a less important part, of the overall protections afforded to children by child welfare legislation. I note, for example, the testimony of Allan Simpson, a Sergeant with the Toronto Police Service, that:

Whether in any particular circumstance a charge is laid or not, the Children’s Aid Society is normally contacted, when they have not been the first to investigate the circumstances. The primary consideration is always the safety and well-being of the child. [Emphasis in original.]

124 To deny children the ability to have their parents, or persons standing in their parents’ place, to be successfully prosecuted for reasonable corrective force under the Criminal Code does not leave them without effective recourse. It just helps to keep the family out of the criminal courts. In my view, s. 43 in relation to parents and persons standing in their place is justified on this basis.

(b) The Application of Section 1 in Relation to Teachers

125 The extension of s. 43 protection to teachers has not been justified under the s. 1 test. It is argued that the legislative objective in the case of teachers echoes the policy reasons applicable to parents, but the logic for keeping criminal sanctions out of the schools is much less compelling than for keeping them out of the home. Compared with a family, a teacher’s commitment to a particular child is typically of a different order and for a more limited period of time. While at one time teachers were regarded as parent-type figures, s. 43 itself draws a distinction between a “person standing in the place of a parent” and a teacher. Less harm may flow from discipline inflicted by a parent who typically shares a loving relationship with the child. The pupil-teacher relationship is closer to the master-apprentice relationship for which s. 43 protection was abolished by Parliament in 1955 (see S.C. 1953-54, c. 51, s. 43).

126 The evidence is that most teachers do not favour the use of force in schools for “correction”. Their point is that there is a need to maintain order in schools, and keeping order may involve unwanted touching, such as “sitting” down an obstreperous child, or marching belligerents off to the principal’s office.

127 The question is whether the undoubted need to keep order in schools justifies the s. 43 exemption of teachers from the assault provisions of the Criminal Code. The Law Reform Commission of Canada recommended the repeal of the s. 43 defence for school teachers, stating that the ultimate sanction should be the removal of a child from school, not corporal punishment: Law Reform Commission of Canada, Working Paper 38, Assault (1984), at p. 44. A number of countries have abolished or modified similar legislative immunities for teachers: see, e.g., s. 47 of the British Education (No. 2) Act 1986 (U.K.), 1986, c. 61; s. 59 of the New Zealand Crimes Act 1961 (N.Z.), 1961, No. 43; and s. 139A of the New Zealand Education Act 1989 (N.Z.), 1989, No. 80.

128 While I accept that order in the schools is a legitimate objective, I do not think that giving non-family members an immunity for the criminal assault of children “by way of correction” is a reasonable or proportionate legislative response to that problem. The attempt to save the constitutionality of s. 43 by rewriting it to distinguish between parents and teachers and carving out school order from the more general subject matter of “correction” is, in my view, a job for Parliament. In short, s. 43 does not minimally impair the child’s equality right, and is not a proportionate response to the problem of order in the schools.

7. Disposition

129 I would therefore uphold the validity of s. 43 in relation to parents and persons standing in the place of a parent, but declare it unconstitutional insofar as it extends to teachers. To that extent, the appeal should be allowed.

130 I would answer the constitutional questions as follows:

1. Does s. 43 of the Criminal Code, R.S.C. 1985, c. C-46, infringe the rights of children under s. 7 of the Canadian Charter of Rights and Freedoms?

Answer: No.

2. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society within the meaning of s. 1 of the Canadian Charter of Rights and Freedoms?

Answer: It is unnecessary to decide this question.

3. Does s. 43 of the Criminal Code, R.S.C. 1985, c. C-46, infringe the rights of children under s. 12 of the Canadian Charter of Rights and Freedoms?

Answer: No.

4. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society within the meaning of s. 1 of the Canadian Charter of Rights and Freedoms?

Answer: It is unnecessary to decide this question.

5. Does s. 43 of the Criminal Code, R.S.C. 1985, c. C-46, infringe the rights of children under s. 15(1) of the Canadian Charter of Rights and Freedoms?

Answer: Yes.

6. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society within the meaning of s. 1 of the [