Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)
Supreme Court of Canada
June 30, 2004
Article 3: Best interests of the child;
Article 5: Evolving capacities of the child;
Article 19: Protection from all forms of violence;
Article 37: Prohibition of torture and cruel, inhuman, or degrading treatment;
CRC Concluding Observations recommending the prohibition of physical punishment of children
Canadian Charter of Rights and Freedoms (Section 7: due process in deprivation of life, liberty, or security of the person; Section 12: prohibition of cruel and unusual treatment or punishment; Section 15: equality);
Section 43 of the Canadian Criminal Code (justifying use of reasonable force by parents and teachers by way of correction of a child)
A children's organisation sued the government to declare a law allowing parents and teachers to use reasonable physical force against children in their care – Section 43 of the Canadian Criminal Code – to be incompatible with the Convention on the Rights of the Child and the Canadian Charter of Rights and Freedoms.
Issue and resolution:
Corporal punishment of children. Although the Court restricted the lawful use of corporal punishment to family settings under limited circumstances, the Court also ruled that physical chastisement of children is permitted under international and Canadian law, meaning that the reasonable use of physical force against children is not incompatible with the Convention on the Rights of the Child or the Canadian Charter of Rights and Freedoms.
Corporal punishment of children does not offend the principles of fundamental justice. The provisions of domestic law allowing for corporal punishment at home and in school (Section 43 of the Canadian Criminal Code) are clearly worded to limit abuse and provide adequate procedural safeguards to protect children. While parents should not use corporal punishment on either children under two or teenagers and teachers should not use corporal punishment at all, there are circumstances in which less severe corporal punishment is permitted. Reasonable physical chastisement is neither cruel nor unusual punishment, and the use of force for educative or corrective purposes can be in children's best interests.
This decision violates children's right to equal treatment. Denying children legal protection from physical force does not respect children's dignity and treats them as second class citizens. Corporal punishment is not in children's best interests and should be prohibited in all instances.
Excerpts citing CRC and other relevant human rights instruments:
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”. . .
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.
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.
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. . . The Committee has not expressed a similar opinion regarding parental use of mild corporal punishment.
Some provinces have prohibited corporal punishment, and there have been further efforts to outlaw corporal punishment in parliament by repealing Section 43 (More information is available at http://www.repeal43.org/)
CRIN does not believe this judgement is consistent with Canada's obligations under the CRC. Article 19 of the Convention clearly requires that states parties protect children from all forms of violence, while Article 37 requires States to ensure that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment”. As corporal punishment is a cruel and degrading form of violence, it cannot be consistent with the aims of the CRC. Moreover, the Committee on the Rights of the Child explicitly states in its General Comment Number 8 (“The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment”) that all states parties – including Canada – must both forbid corporal punishment by law and take further action to change social attitudes where corporal punishment is seen as acceptable. Sadly, the Supreme Court of Canada has missed an opportunity to bring Canadian law into compliance with the CRC by allowing corporal punishment to continue, albeit in more limited circumstances.
 1 S.C.R. 76, 2004 SCC 4
Link to Full Judgment:
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