The Canadian Foundation for Children, Youth & the Law, a childrens’ rights organization, brought an action for declaratory relief striking down Section 43 of the Criminal Code, the legislation which decriminalizes the spanking of children for the purpose of corrective discipline.
The action was dismissed by the trial judge, by the Court of Appeal, and by the Supreme Court of Canada, which confirmed that the provision does not violate the Charter.
In response to a claim that the law was unconstitutionally vague, a majority of the Supreme Court stated that Section 43 requires that disciplinary forced be exercised in a “reasonable” manner, which implies strict limits to the ability to spank children. The court took the opportunity to clarify these limits, noting that it is impermissible to spank a child under the age of two or over the age of twelve, and further that the section provided no defence to a parent or teacher who hit a child with an object or on the head, or was motivated primarily by anger or frustration.
The narrow subset of disciplinary force which is permissible was, by definition, not “cruel and unusual punishment” within the meaning of Section 12 of the Charter. The court further concluded that such force did not constitute “discrimination” within the meaning of Section 15(1).
Decided by the Supreme Court of Canada on January 30, 2004.
Click here for the full text of the decision.