DATE:20020115
DOCKET:C34749

CATZMAN, DOHERTY AND GOUDGE JJ.A.

On appeal from the judgment of Justice David McCombs dated July 5, 2000.                                               

GOUDGE J.A.:

INTRODUCTION

[1]               Section 43 of the Criminal Code, R.S.C. 1985 c. C-46 reads as follows:

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.

[2]               This section provides a parent, surrogate parent or teacher with a defence to what would otherwise be a criminal assault. In this respect it puts a limited aspect of family life beyond the reach of the criminal law. The broad issue in this appeal is whether, in doing so, the section strikes a fair balance between the interest of the child and the interest of the state. Or, on the other hand, does it violate the child’s constitutional rights to security of the person, to be protected against cruel and unusual punishment, and to equality?

[3]               The question is not whether a parent using reasonable force on a child for corrective purposes is a good or a bad thing. The question is whether Parliament’s decision not to criminalize that conduct violates the Charter of Rights and Freedoms.

THE DECISION APPEALED FROM

[4]               At first instance, McCombs J. answered this question in the negative. For the reasons that follow, I agree with him and I would therefore dismiss this appeal.

[5]               The appellant, the Canadian Foundation for Children, Youth and the Law is a not‑for‑profit organization which advocates on behalf of children and children’s rights. It is supported in this appeal by the Ontario Association of Children’s Aid Societies.

[6]               The respondent, the Attorney General of Canada is supported by the Canadian Teachers’ Federation and the Coalition for Family Autonomy.

[7]               The appellant commenced these proceedings by way of application. While the application did not arise from a specific fact circumstance, the parties tendered a significant volume of affidavit evidence from experts in child protection, children’s rights and social science research. No objection was taken to this method of bringing the legal questions before the court or to the standing of the appellant to do so.

[8]               McCombs J. found significant areas of agreement among these experts, which he set out at paragraph 17 of his reasons as follows:

1.      Corporal punishment of very young children: Hitting a child under two is wrong and harmful. With very young children, even mild spanking has no value and can destroy a child’s sense of security and self-esteem, essential components of a healthy nurturing environment. A child under two will not understand why he or she is being hit. [All social science witnesses in this application accepted a definition of spanking as “the administrating of one or two mild to moderate ‘smacks’ with an open hand, on the buttocks or extremities which does not cause physical harm.”]

2.      Corporal punishment of teenagers:  Is not helpful and [is] potentially harmful. There is a consensus that corporal punishment of teenagers achieves only short-term compliance and carries with it the danger of alienation from society, along with aggressive or otherwise anti-social behaviour.

3.      Use of objects in corporal punishment: Corporal punishment using objects such as belts, rulers, etc., is potentially harmful both physically and emotionally and should not be tolerated.

4.      A slap or blow to the head: Corporal punishment should never involve a slap or blow to the head.

5.      Injury:  Corporal punishment which causes injury is child abuse.

6.      Resort to spanking for correction: None of the experts goes so far as to advocate or recommend spanking, or other forms of corporal punishment, as a form of child discipline. They agree that other forms of discipline, such as withdrawal of privileges or removing a child from the room, are equally effective in most cases.

7.      Absence of evidence of benefits of spanking: There is general agreement among the experts that the only benefit of spanking to be found in the research is short-term compliance.

8.      “Time out” as an effective alternative to spanking: The experts all endorsed the “time out” method as an effective and appropriate method of child discipline. [The “time out” method involves placing a child in a chair or room, sometimes using mild force, and requiring the child to remain there for a period of time until he or she calms down. …]

9.      Spanking is not child abuse: Most of the social science witnesses and professionals, agree that spanking as defined here is not child abuse.

10.Only abusive physical punishment should be criminalized: The consensus among the experts is that not every instance of physical discipline by a parent should be criminalized. Many believe that the desirable objective of changing societal attitudes regarding child discipline would be best achieved through educational incentives, rather than the use of criminal sanctions to prosecute non-abusive physical punishment. The experts agree that extending the reach of criminal law in this way would have a negative impact upon families and hinder parental and teacher efforts to nurture children. [Emphasis added.]

[9]               McCombs J. went on to find that there is no empirical evidence establishing a definitive long term causal link between corporal punishment and negative outcomes for children. Nor is there any reliable empirical evidence that non-abusive or mild forms of physical discipline such as spanking have a positive corrective effect upon children. At paragraph 20 he summarized his findings this way:

In short, it is impossible to determine with scientific precision whether corporal punishment leads to negative outcomes or whether it is simply a factor among other negative environmental factors that cumulatively impact negatively upon a child’s future.

[10]          Finally, he  concluded that the evidence fell short of establishing that s. 43 significantly impedes the objectives of child protection workers.

[11]          Even though this evidence was tendered by way of affidavit rather than oral testimony, these findings are entitled to appellate deference. See Equity Waste Management of Canada v. Halton Hills (Town) (1997), 35 O.R. (3d) 321 (Ont. C.A.). Since the findings are all reasonable and properly grounded in the evidence, they must be accepted in this court.

[12]          McCombs J.’s reasons for decision are thorough and well reasoned. He concluded that s. 43 of the Criminal Code does not violate s. 7, s. 12 or s. 15 of the Charter of Rights and Freedoms. He therefore dismissed the application but made no order as to costs.

[13]          On this appeal the appellant contests each of these determinations. In doing so, neither the appellant nor the Ontario Association of Children’s Aid Societies advances any arguments specific to teachers. Hence, for simplicity I will, for the most part, discuss the issues in the context in which the appeal was primarily argued, namely the parent-child relationship. I will address each of the appellant’s Charter challenges in turn.

THE SECTION 7 ISSUE

[14]          Section 7 of the Charter of Rights and Freedoms provides as follows:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[15]          The appellant argues that by justifying conduct which would otherwise constitute a physical assault on the child, s. 43 infringes that child’s security of the person and does so in violation of the principles of fundamental justice.

[16]          The respondent agrees that s. 43 engages the physical security interest of the child and that therefore the debate is about whether the section violates the principles of fundamental justice. Hence I will proceed on the basis that Parliament’s decision not to criminalize the conduct described in s. 43 engages the security of the person interest protected by s. 7 of the Charter. The question is whether this infringement is in accordance with the principles of fundamental justice.

[17]          In addressing this question it is essential to consider the social and legislative context in which s. 43 operates. The Supreme Court of Canada has repeatedly made this clear. See for example Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519 at 562.

[18]          The family, and particularly the parent-child relationship, provides the principal social context for this case. In  Winnipeg Child and Family Services v. K.L.W., supra, L’Heureux-Dubé J. speaking for the majority offered an eloquent description of that context. While the potential state interference in that case was by means of child protection legislation, the description may be even more apt where the interference would be through the blunt instrument of the criminal law. She said this at p. 562:

The mutual bond of love and support between parents and their children is a crucial one and deserves great respect. Unnecessary disruptions of this bond by the state have the potential to cause significant trauma to both the parent and the child. Parents must be accorded a relatively large measure of freedom from state interference to raise their children as they see fit.

[19]          While thankfully the family provides a vital and nurturing environment for children in most instances, it can also be a place of danger. When it is, the full weight of the criminal law is brought to bear, save for the conduct excused by s. 43. Even in relation to that excused conduct, however, it is clear the federal government does not advocate any form of physical punishment. To the contrary, it sponsors extensive educational programs which specifically advise against the use of physical punishment by parents. For example: “Nobody’s Perfect” is one such program run by Health Canada which teaches parenting skills to those with children under five. Its material clearly states: “No matter how angry you are it’s never okay to spank children. It’s a bad idea and it doesn’t work.”  The text then goes on to explain how a parent can effectively discipline a child without using physical violence.

[20]          In addition to the criminal law and federal educational programs, provincial child protection legislation is a very important part of the safety net for children in Canada. Every province and territory has legislation which enables the state to act to protect the child at risk or in need of protection. In Ontario that legislation is the Child and Family Services Act, R.S.O. 1990, c.C.11. While each jurisdiction has its own definition of a child in need of protection, all definitions include physical abuse. I agree with McCombs J. when he said this at paragraph 93 of his reasons:

There is a framework in place in each province and territory to monitor the family and deal with issues of child protection as they arise. This framework addresses such issues in a flexible manner with the goal of assisting families. The provincial framework reflects the reality that criminalization is often too blunt and heavy-handed an instrument with which to address many of the problems concerning the welfare of children.

[21]          Many other countries have addressed this issue in much the same way that Canada has. A small number of countries in Europe (Sweden, Finland, Denmark, Norway, Austria, Cyprus, Croatia and Latvia) have used their civil law or family law to ban the physical punishment of children. Importantly however, these countries attach no criminal penalty to these provisions. Rather, they operate together with educational campaigns designed to change attitudes about parental discipline. No country in the world has criminalized all forms of physical punishment of children by parents, which is what accepting the appellant’s position would entail. Again, I agree with McCombs J.’s summary at paragraph 104 of his reasons:

A review of the methods other countries have adopted for dealing with the corporal punishment of children demonstrates a consensus that the most appropriate way of addressing this issue is to develop educational and other social programs designed to change social attitudes, rather than to expand the reach of the criminal law.

[22]          The situation is similar at the international agency level. The United Nations Convention on the Rights of the Child was ratified by Canada in 1991. It provides that State parties should take all appropriate measures to protect a child from all forms of physical or mental harm, violence and neglect while in the care of parents. It does not say that all forms of physical punishment should be criminalized. Likewise, the U.N. Committee on the Rights of the Child, which was set up under the Convention for reporting and monitoring purposes, recommended in 1994 that the federal government undertake educational campaigns to change attitudes about corporal punishment of children and suggested a review of the penal legislation allowing corporal punishment of children by parents and in schools. While the Committee recommended that corporal punishment of children be prohibited, it nowhere required that this be done by an extension of criminal sanctions. Indeed, where that has been done elsewhere, it has been done by civil law provisions not criminal law provisions.

[23]          In addition to this broader context, the meaning and purpose of s. 43 are both vital in considering the appellant’s position that the section breaches the s. 7 rights of children by decriminalizing certain conduct and should therefore be declared to be of no force and effect. McCombs J. describes the consequence of that at paragraphs 88 and 89 of his reasons for judgment:

The offence of assault is defined in s. 265 of the Code as “the intentional application of force to another person, directly or indirectly, without the consent of that person”. This broad definition, standing alone, would make criminal any mild or moderate forms of physical discipline, including spanking as defined in this case. Without s. 43, other forms of restraint would be criminal, such as putting an unwilling child to bed, removing a reluctant child from the dinner table, removing a child from a classroom who refused to go, or placing an unwilling child in a car seat. All parties to this application agree that these are common and necessary applications of force.

The fact that such commonly accepted forms of parental discipline would become criminalized without s.43 is a very significant consideration.

[24]          In approaching the meaning and purpose of s. 43 it is helpful to set it out again:

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.

[25]          This section has been part of the Criminal Code since 1892. The leading case interpreting this section is R. v. Ogg-Moss, [1984] 2 S.C.R. 173. While not a case involving a constitutional challenge, Dickson J. (as he then was) provided important guidance to the interpretation of s. 43. At page 183 he said:

A better starting point, in my view, is not the purpose of s. 43 but its effects. While a confident conclusion as to the purpose of s. 43 must await an accurate assessment of the meaning of its terms, the overall effects of that section are clear, no matter how its terms are defined. It exculpates the use of what would otherwise be criminal force by one group of persons against another. It protects the first group of persons, but, it should be noted, at the same time it removes the protection of the criminal law from the second. For the Attorney-General of Ontario this latter effect justifies a restrictive reading of s. 43, specifically of the terms “child” and “pupil”. It is his submission that:

… the class of persons against whom otherwise criminal force can be employed ought to be restricted, not broadened, and … any section which authorizes otherwise illegal physical violence should be strictly construed against the actor.

There is much to be said in favour of this submission. As a statement of general principle it accords with our normal assumptions about the purpose and operation of the criminal law. One of the key rights in our society is the individual’s right to be free from unconsented invasions on his or her physical security or dignity and it is a central purpose of the criminal law to protect members of society from such invasions. I agree with the Attorney-General that any derogation from this right and this protection ought to be strictly construed. Where the effect of such a purported derogation is to deprive a specific individual or group of the equal protection we normally assume is offered by the criminal law, I think it appropriate to view the proferred definition with suspicion and to insist on a demonstration of the logic and rationale of the interpretation.

[26]          Dickson J. applied this strict construction approach to refuse to extend the area of conduct protected from the criminal law to physical punishment of mentally disabled adults. He dismissed the argument that “child” should be given a functional interpretation which would have expanded the scope of the section.

[27]          Dickson J. went on to make clear that s. 43 offers protection only when the parent, surrogate parent or teacher applying the force intends it for “correction”, when the child being “corrected” is capable of learning from that correction, and then only when the force used is reasonable in the circumstances.

[28]          While Dickson J. clearly laid out the intention with which reasonable force must be applied to a child to remove that conduct from the reach of the criminal law, the case did not require that he set out the legislative purpose of the section and he did not do so. However his analysis of the section is vital in determining that purpose.

[29]          Parliament has extended s. 43 only to parents, surrogate parents and teachers – those who must interact with children on a close and constant basis to properly discharge their important responsibilities to train and nurture children. The section exempts only the use of force that is reasonable in the circumstances and is by way of correction. It decriminalizes only non-abusive physical punishment of children by parents or teachers where the intention is to correct, and correction is possible.

[30]          Given the strict construction that it must be given, and the broader context in which it must be placed, the legislative purpose of s. 43 is to permit parents and teachers 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. This legislative purpose is congruent with two particularly vital aspects of the context in which s. 43 operates, namely, Parliament’s use of educational measures to promote better ways of disciplining children and the existence of non-criminal legislation that protects against child abuse.

[31]          It is against this backdrop that the appellant’s arguments of how s. 43 violates the principles of fundamental justice must be considered.

[32]          First, the appellant argues that it is an essential purpose of the criminal law to protect members of society from invasions of their physical security and that s. 43 violates this principle of fundamental justice.

[33]          I do not agree. While this essential purpose of the criminal law cannot be questioned,  I do not think it is appropriately characterized as a principle of fundamental justice for the purposes of s. 7. If it were, then every deprivation of a person’s physical security would per se be contrary to the principles of fundamental justice. As Sopinka J. said in a similarly reasoned passage in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 at 592: “This interpretation would equate security of the person with a principle of fundamental justice and render the latter redundant.”

[34]          Second, the appellant says that s. 43 violates the procedural dimension of fundamental justice because when an adult seeks to invoke s. 43 at a criminal trial the child has no standing to oppose its application.

[35]          In my view this argument is misconceived. Section 43 sets up no procedure which is to be tested against the principles of natural justice or procedural fairness. Rather the section is purely a matter of substantive law, setting up a defence for conduct that would otherwise constitute a criminal assault. The infringement of the child’s personal security interest arises from Parliament’s decision to enact the section, not from any legal process conducted pursuant to the section. Given that this decision is embodied in a properly passed law there can be no question of the section violating the procedural aspect of fundamental justice.

[36]          Third, the appellant argues that s. 43, in decriminalizing limited physical punishment of children intended for correction, contravenes “the best interests of the child”, which it argues is a principle of fundamental justice.

[37]          I cannot agree that in the context of this case “best interests of the child” stands as such a principle. The Supreme Court of Canada has repeatedly made clear that the meaning of fundamental justice must depend in a given case on both the nature of the s. 7 right asserted and the character of the alleged violation. See for example, Godbout v. Longueuil (City), [1997] 3 S.C.R. 844 at 898.

[38]          In that light it must be remembered that this is not a case arising in the context of family law where, if the removal by the state of a child from a parent’s custody infringes the parent’s right to security of the person, fundamental justice may require an evaluation of the best interests of the child. Indeed, even in the family law context of child protection, the fundamental principle has been articulated not in terms of “best interests of the child” but in the rather more guarded language quoted by L’Heureux-Dubé J. in Winnipeg Child and Family Services v. K.L.W., supra, at p. 572:

The protection of a child’s right to life and to health, when it becomes necessary to do so, is a basic tenet of our legal system, and legislation to that end accords with the principles of fundamental justice, so long, of course, as it also meets the requirements of fair procedure.

[39]          In my view, the application of “best interests of the child” as a principle of fundamental justice in this criminal law context presents significant difficulty. In Rodriguez, supra at p. 591, Sopinka J. makes clear that principles of fundamental justice must have some precision, sufficient to yield understandable results in the particular situation. Here, where s. 43 infringes the child’s security of the person, the appellant would have the court determine whether that infringement violates that child’s best interests. If any application of force to the child, however limited and reasonable in the circumstances, is per se a contravention of the child’s best interests, the appellant’s position suffers from the same tautological flaw described earlier. It equates the child’s security of the person with a principle of fundamental justice and renders the latter redundant. If, on the other hand a very minor application of force to the child can accord with the best interests of that child, where is the line to be drawn beyond which the infringement of the child’s security of the person violates the “best interests” principle?  The appellant suggests no answer to this dilemma. Nor can I.

[40]          Hence I think that the concept of “best interests of the child”, while undoubtedly one of the underlying principles upon which our society is based, is insufficiently precise in the criminal law context presented here to serve as a principle of fundamental justice in this case.

[41]          Finally, the appellant argues that s. 43 violates the principles of fundamental justice that proscribe vagueness and overbreadth. As this court said in R. v. Zundel (1987), 58 O.R. (2d) 129 at 157, these are two separate concepts although they may in some cases be closely interrelated. The appellant argues first that by requiring that the force applied be “reasonable in the circumstances” and be “by way of correction” s. 43 employs an impermissibly vague standard.

[42]          I disagree. In R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, Gonthier J. made clear that a law will be unconstitutionally vague if it does not provide an intelligible standard or sufficient guidance for legal debate. At p. 627 Gonthier J. said that in determining this, factors to consider include the interpretative role of the courts, the impossibility of achieving absolute certainty and the possibility that many judicial interpretations of a provision may exist and perhaps co-exist.

[43]          In my view, the concept of force that is “reasonable in the circumstances” is well within the bounds of constitutionality. Courts are well used to dealing with an objective standard of reasonableness in a wide variety of circumstances. In R. v. Dupperon (1984), 16 C.C.C. (3d) 453 the Saskatchewan Court of Appeal set out a useful list of criteria by which to assess reasonableness for the purposes of this section. At p. 460 that court said this:

In determining that question the court will consider, both from an objective and subjective standpoint, such matters as the nature of the offence calling for correction, the age and character of the child and the likely effect of the punishment on this particular child, the degree of gravity of the punishment, the circumstances under which it was inflicted, and the injuries, if any, suffered.

[44]          This conclusion is not displaced by the fact that all parties acknowledged before McCombs J. that there have been cases in the past where s. 43 was applied to excuse applications of force that, in light of today’s standards and the unprecedented body of expert evidence filed in this proceeding, should rightly be characterized as assault. In this court the respondent went so far as to say that a number of these acquittals based on s. 43 were wrongly decided. As Gonthier J. said, varying judicial interpretations do not equate to vagueness. Moreover I agree with McCombs J. that many of the more recent cases are consistent in adopting the approach of R. v. Dupperon, supra to assess the reasonableness of the force used. Ultimately, the question is whether the phrase “reasonable in the circumstances” provides the court with an intelligible standard for legal debate. I have no doubt that it does.

[45]          I reach the same conclusion about the concept of “by way of correction”. As I have indicated, in  R. v. Ogg-Moss, supra, Dickson J. engaged in an elaborated interpretation of this phrase. Nothing could more clearly demonstrate that this phrase provides sufficient guidance for legal debate. This concept as well cannot be said to be unconstitutionally vague.

[46]          The appellant argues that s. 43 suffers from overbreadth because it may permit parents to use force on children up to 18 years of age when the expert evidence is that hitting a child under the age of 2 is both wrong and harmful and corporal punishment of teenagers is not helpful and potentially harmful.

[47]          Again, I disagree. Cory J. said in R. v. Heywood, [1994] 3 S.C.R. 761 at 794 that legislation will be unnecessarily broad only where it goes beyond what is needed to accomplish the governmental objective. As I have indicated, the governmental objective in enacting s. 43 is to permit parents and teachers 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. Section 43 is reasonably tailored to effect this purpose. It does so without exposing children to unreasonable physical punishment. In determining whether the force used in any particular case is reasonable and therefore excused from being an assault by s. 43, the court must take into account the age of the child and will be moved also by expert evidence reflecting the strong agreement of social scientists concerning physical punishment of very young children and teenagers. Hence s. 43 is reasonably tailored to achieve the governmental objective. It is not unnecessarily broad.

[48]          I have concluded that none of the arguments advanced by the appellant demonstrate that s. 43 violates any principle of fundamental justice. Beyond these arguments however, the Supreme Court of Canada has said on many occasions (for example, in Rodriguez, supra, at p. 593) that these principles require that the interest of the individual and the interest of the state implicated by the section under scrutiny be carefully assessed to ensure that in enacting the section, Parliament has struck a fair balance between the two. Indeed in Godbout v. Longueuil (City), supra, at 899, LaForest J. referred to the notion of balancing individual rights against collective interests as itself reflecting a principle of fundamental justice.

[49]          As I have said, s. 43 implicates the child’s security of the person interest. The section permits limited physical punishment of the child by a limited class of people without the punishment being a criminal assault. The section does not approve or encourage such punishment. It carefully defines the limits that must be observed if those actions are to escape criminal sanction. Those limits are found in the language of the section as informed by the kind of expert evidence presented in this case rather than in the reported facts of particular cases which may be incomplete or worse, wrongly decided. For exemption from the criminal law this section requires that the force be applied to the child by a parent, surrogate parent or teacher. The force must be reasonable in the circumstances which will inevitably include consideration of the age and character of the child, the circumstances of the punishment, its gravity, the misconduct of the child giving rise to it, the likely effect of the punishment on the child and whether the child suffered any injuries. Finally, the person applying the force must intend it for “correction” and the child being “corrected” must be capable of learning from the correction. Hence s. 43 infringes the child’s security of the person only to the extent of decriminalizing the limited application of force to the child in circumstances where the risk of physical harm is modest.

[50]          On the other hand, the state interest is to avoid the harm to family life that could come with the criminalizing of this conduct. Those insulated from the criminal law by s. 43 – parents, surrogate parents and teachers – must be in close and constant contact with children to fulfil their important responsibilities to those children. As McCombs J. found, the experts agree that extending criminal sanctions so as to prosecute non-abusive physical punishment would have a negative impact upon families and hinder parental and teacher efforts to nurture children. This state interest exists in a context where the state is also vigorously pursuing educational programs to discourage and if possible eradicate physical punishment of children and where there is significant non-criminal child protection legislation designed to prevent child abuse.

[51]          Given that the infringement of the child’s security of the person is carefully circumscribed, that there is an important state interest to be achieved by not criminalizing the specified conduct and that there are other mechanisms in place to significantly reduce the risk of physical harm to children, I think s. 43 represents a fair balance between the interest of the state and the interest of the individual child. Hence in my opinion the section conforms to the principles of fundamental justice.

[52]          In summary, the s. 7 issue presented by s. 43 is not about whether physical punishment of children is good or bad. The government has clearly and properly determined that it is bad. Rather the issue is whether s. 43 infringes the child’s security of the person in a way that violates the principles of fundamental justice. The appellant has not demonstrated any such violation. Indeed, in my view, s. 43 fairly balances the individual and state interests at stake. This ground of appeal must therefore be dismissed.

THE SECTION 12 ISSUE

[53]          The appellant argues that s. 43 of the Criminal Code violates s. 12 of the Charter. That section reads as follows:

12.            Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[54]          In my view the simple answer to the appellant’s argument is that s. 43 is not the legislative foundation for any state imposed punishment on a child, nor does it subject the child to treatment by the state. It simply creates a criminal law defence for certain persons who apply reasonable force to children by way of correction. By enacting the section the state cannot be said to either inflict the physical punishment or be responsible for its infliction. Nor when the child is physically punished is there an active state process in operation involving an exercise of state control over the child as there must be if s. 12 is to be engaged. See Rodriguez, supra, at p. 612.

[55]          For these reasons, in my view s. 43 does not violate s. 12 of the Charter.

THE SECTION 15 ISSUE

[56]          The appellant argues that s. 43 violates s. 15 of the Charter. It says that by decriminalizing physical assaults only against children the section subjects them to differential treatment on the enumerated ground of age. This treatment is said to diminish their dignity and worth as human beings within Canadian society.

[57]          I am prepared to proceed on the basis that this is so, because in my view s. 43 is clearly justified under s. 1 of the Charter.

[58]          The framework for the s. 1 analysis is well known. In Egan v. Canada, [1995] 2 S.C.R. 513 at 605 Cory and Iacobucci JJ. set out this framework as follows:

A limitation to a constitutional guarantee will be sustained once two conditions are met. First, the objective of the legislation must be pressing and substantial. Second, the means chosen to attain this legislative end must be reasonable and demonstrably justifiable in a free and democratic society. In order to satisfy the second requirement, three criteria must be satisfied: (1) the rights violation must be rationally connected to the aim of the legislation; (2) the impugned provision must minimally impair the Charter guarantee; and (3) there must be a 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. In all s. 1 cases the burden of proof is with the government to show on a balance of probabilities that the violation is justifiable.

[59]          As I have said, the objective of s. 43 is to permit parents and teachers 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.

[60]          Parents, teachers and families play very significant roles in our society. Facilitating those roles in a way which keeps them free of harm is an objective that is undoubtedly pressing and substantial.

[61]          Assuming that s. 43 violates the equality rights of children, in doing so it is obviously rationally connected to the aim of the legislation, as I have outlined it.

[62]          The area of conduct which is decriminalized by s. 43 is strictly limited. It encompasses only non-abusive physical punishment by parents and teachers which is intended to and can achieve correction. In determining precisely where to draw the line around the area of conduct that must be decriminalized in order to achieve its legislative objective, Parliament is engaged in a difficult policy judgment which, for institutional reasons, courts should scrutinize with some deference. Moreover, it is difficult to think of how this area could be shrunk further by criminalizing some of the conduct now protected, given the objective of the legislation. To do so would risk the very harm that the legislation seeks to avoid. Indeed the appellant does not suggest a further narrowing of the area of decriminalized conduct but rather argues for its complete elimination. In my view, the government has discharged its burden of showing that s. 43 minimally impairs the equality rights of children.

[63]          Finally, the s. 1 test requires that there be a proportionality between the effect of s. 43 and its objective so that the salutary effects of the legislation are not outweighed by its deleterious consequences. I have already described the factors that in my view are relevant to this analysis. In creating an exemption to the criminal law, the section sets strict limits on the force used on children, those who can apply it and the intention with which it is applied. While there is significant associational evidence linking corporal punishment to poor outcomes for children, there is no empirical evidence establishing a definitive long term causal link between the two. On the other hand, prosecuting non-abusive physical punishment of children by parents or teachers would hinder them in the discharge of their responsibilities towards those children and harm families.

[64]          In the context of the active educational programs undertaken by government to eliminate physical punishment altogether and non-criminal legislation protecting against child abuse, I think the proportionality requirement is met.

[65]          I would therefore dismiss this ground of appeal.

THE COSTS ISSUE

[66]          Finally, the appellant challenges McCombs J.’s decision that there be no order as to costs. It seeks to have the respondent pay its costs on a solicitor and client scale.

[67]          I cannot agree with the appellant. In reaching his conclusion McCombs J. considered the respondent’s success in resisting this application, the undoubted public importance of this Charter challenge, the non-profit nature of the appellant and the fact that it received only limited funding pursuant to a federal funding program. He looked for but found no exceptional circumstances. He concluded that he could not order costs to the appellant as the unsuccessful applicant.

[68]          In my view, the award of no costs was one entirely within the discretion of the judge of first instance. He was entitled to consider all the factors he did and made no error in principle in the exercise of his discretion. I would not interfere with the order he made.

[69]          In summary, for the reasons I have set out the appeal must be dismissed. The respondent is entitled to its costs of the appeal if demanded.

Released: January 15, 2002 “MAC”                        

“S.T. Goudge J.A.”

“I agree: M. A. Catzman J.A.”

“I agree Doherty J.A.”