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

SCCInfoBox
case-name=Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)
full-case-name=Canadian Foundation for Children, Youth and the Law v. Attorney General in Right of Canada
heard-date=June 6, 2003
decided-date=January 30, 2004
citations= [2004] 1 S.C.R. 76, 2004 SCC 4
history=
ruling= Appeal dismissed.
ratio=
SCC=2003-2004
Majority=McLachlin C.J. (paras. 1-70)
JoinMajority=Gonthier, Iacobucci, Major, Bastarache and LeBel JJ.
Concurrence/Dissent=Binnie J. (paras. 71-130)
Dissent=Arbour J. (paras. 131-211)
Dissent2=Deschamp J. (paras. 212-246)
NotParticipating=
LawsApplied=

"Foundation for Children, Youth and the Law v. Canada", [2004] 1 S.C.R. 76, 2004 SCC 4 - known also as the spanking case - is a leading Charter decision of the Supreme Court of Canada where the Court upheld section 43 of the Criminal Code of Canada that allowed for a defence for assaulting children as not in violation of section 7, section 12 or section 15(1) of the Charter.

Background

The Canadian Foundation for Children, Youth and the Law ("Foundation") applied for a declaration to strike-down section 43 of the Criminal Code which states, under the section entitled "Protection of Persons in Authority", :"43. Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances." The basis of which is because the provision violates:
# section 7 of the Canadian Charter because it fails to give procedural protections to children, does not further the best interests of the child, and is both overbroad and vague;
# section 12 of the Charter because it constitutes cruel and unusual punishment or treatment;
# section 15(1) of the Charter because it denies children the legal protection against assaults that is accorded to adults.

Ruling

The Supreme Court handed down its 6 to 3 decision on January 30, 2004. The Supreme Court of Canada decision [http://canadiancrc.com/Child_Abuse/Supreme_Court_Judgement_Spanking_30JAN04.htm]

The majority opinion was written by Chief Justice McLachlin with Gonthier, Iacobucci, Major, Bastarache and LeBel JJ. concurring.

Section 7

Section 7 protects individuals from violation of their personal security. McLachlin found that there was no violation of section. The Crown had conceded that the law adversely affected the child's security of person, so the issue was whether the violation offended a principle of fundamental justice. The Foundation proposes three claims as mentioned above. McLachlin rejected the first claim that it failed to give procedural protection as children receive all the same protection as anyone else. On the second claim, she rejects that the "best interests of the child" is a principle of fundamental justice as there is no "consensus that it is vital or fundamental to our societal notion of justice."

On the third claim she rejects the claim that the law is vague and overbroad on grounds that the law "delineates a risk zone for criminal sanction". She examines the meaning of "reasonable under the circumstances" stating that it includes only "minor corrective force of a transitory and trifling nature", but it does not include "corporal punishment of children under two or teenagers", or "degrading, inhuman or harmful conduct" such as "discipline by the use of objects", "blows or slaps to the head" or acts of anger. The test is purely objective, McLachlin claims.

Section 12

Section 12 prevents "cruel and unusual punishment". Citing the standard of showing cruel and unusual punishment from "R. v. Smith" [1987] 1 S.C.R. 1045 as "so excessive as to outrage standards of decency", McLachlin rejects the claim as the section only permits "corrective force that is reasonable" thus cannot be excessive by definition.

Section 15(1)

Section 15(1) is the equality guarantee that protects individuals from discrimination. McLachlin examines the claim using the analytical framework from "Law v. Canada".

When identifying from who's perspective the analysis must be from, McLachlin notes that rather than take the perspective of a young child, which would prove too difficult, it must be viewed from the perspective of a "reasonable person acting on behalf of a child" and apprised of the law.

McLachlin says that the claim hinges on demonstrating the lack of "correspondence between the distinction and the claimant's characteristics or circumstances" (the second contextual factor from the "Law v. Canada" test). On this point she acknowledges that children need to be protected, and in furtherance of this goal parents and teachers require protection as well. Section 43 decriminalizes "only minimal force of transient or trivial impact" and to remove such protection would be dangerous as it would criminalize acts such as "placing an unwilling child in a chair for a five-minute "time-out"" which would risk destroying the family.

ee also

* List of Supreme Court of Canada cases (McLachlin Court)

External links

*
* [http://www.parl.gc.ca/information/library/PRBpubs/prb0510-e.htm Parliament publication on section 43 of the Criminal Code]
* [http://www.canadiancrc.com/Child_Abuse/Supreme_Court_Case_Spanking.htm Canadian Children's Rights Council - complete section on all aspects of this Supreme Court of Canada case including a virtual library of news articles.]