Fundamentally Flawed: The Arbitrariness of the Corporal Punishment Defence

Abstract

In Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), the Supreme Court of Canada upheld the corporal punishment defence contained in s. 43 of the Criminal Code in the face of arguments that it is an unreasonable infringement of children’s rights under ss. 7, 12, and 15 of the Canadian Charter of Rights and Freedoms. In the process of giving precision to the terms of s. 43 as a prelude to its s. 7 vagueness analysis, the majority indicated that the purpose of the section is to allow only the kind of force against children that has “corrective value” as determined primarily by the weight of expert evidence. The author argues that the Supreme Court’s subsequent recognition of arbitrariness as a distinct fundamental justice concern under s. 7 in Bedford v Canada (Attorney General) meets the “new legal issue” standard for reconsidering previous declarations of validity established in Bedford. The author also argues that since 2004, changes in global attitudes and expert opinion in relation to corporal punishment have “fundamentally shift[ed] the parameters of the debate” which is the second Bedford test for reconsidering previous declarations of validity. Engaging the new arbitrariness framework and the importance that it places on the purposes of laws, the author argues that s. 43 is unconstitutionally arbitrary. Contemporary expert opinion recognizes no corrective value associated with corporal punishment. Because s. 43’s objective is unachievable, there is no rational connection between it and the limit that it imposes on the children’s security interests.