Louise Arbour's Position on Supreme Court Decision s. 43
Original document on www.repeal43.org

The majority of the Court held that s. 43 is not unduly vague if interpreted according to the limitations outlined in its decision. It does not violate a principle of fundamental principle of justice that laws must be reasonably clear. It therefore does not infringe s. 7 of the Charter. Neither does it infringe s. 15 of the Charter. It is not discriminatory because s. 43 responds to the reality of children's lives and their need for guidance and discipline. It does not offend their dignity. Section 43 does not violate the Charter and is therefore constitutionally valid.

Justice Arbour dissented on the grounds that s. 43 infringes s.7 because it is unduly vague and the Court cannot rewrite the section to cure this. This is the job of Parliament. Justice Deschamps agreed but her dissent focused on s. 15. She held that s. 43 is discriminatory because it seriously infringes the physical integrity and dignity of a vulnerable and disadvantaged group and cannot be justified under s. 1 of the Charter. It should be struck down. Justice Binnie also dissented on the grounds that s. 43 infringes s. 15 but held it justified under s. 1.

The dissenting opinions are clear and compelling. The main points are set out in our synopsis. They provide strong legal arguments for repealing s. 43. Only some of the differences with the majority decision are referred to below.

Children between 2 and 12 years of age still subject to legal physical punishment
The majority decision still leaves children within this age group legally subject to physical punishment by parents. It has simply narrowed the class of "punishable" children and placed limits on the kind of punishment allowed. The risks and dangers of this legal approval of physical punishment will continue until this defence to assault is repealed.

Nature and extent of "mild assaults" allowed by decision are unclear
It remains to be seen how lower courts will interpret the punishment allowed by the Court for 2 to12 year-olds; children incapable of learning because of disability "or some other contextual factor"; and at what point frequent "mild assaults" become unreasonable or cause "harm or the prospect of bodily harm". Justice Binnie observed that these limitations do not relieve a court from considering what is reasonable "in all the circumstances" and that they leave "considerable scope" for punishment of children.

Clarity in the law needed, not just for parents, but also for children and public
All opinions expressed on the vagueness argument focus on the need for "fair warning" to parents and teachers as to what force is permissible. The need for children and the general public to know what, if any, force is allowed seems to be overlooked. This is an important omission because we know that many children suffer months of assaults before their injuries or deaths but do not ask for help. They do not know that such assaults are criminal and appear to assume that injuries and beatings are a normal part of childhood. Five year-old Farah Khan and 6 year-old Randal Dooley might not have suffered appalling deaths if corporal punishment were clearly illegal and if they had learned at kindergarten and school that it is not allowed. They might have mentioned these assaults to teachers or neighbours and, if reported, their deaths could have been prevented.

We need to educate children so they can learn to protect themselves by asking for help. Children as young as 4 can be taught to speak up if they are experiencing violence at home. We also need to educate the public to report assaults that come to their attention. Section 42 of the UN Convention in fact requires signatories to makes the rights of children, including the right to a violence-free upbringing, "widely known, by appropriate and active means, to adults and children alike." Countries that have abolished corporal punishment are doing so. Such a campaign by our government would be difficult as long as s. 43 remains in the Code.

The government has no public education campaign against physical punishment.
The claim that the government is educating the public against physical discipline is a fiction. There is no widespread educational campaign aimed at the general public. One or two pamphlets and a video targeted at a specific audience do not amount to public education. Given that s. 43 would conflict with an effective campaign against corporal punishment, it is not surprising that no such campaign has been launched.

Judicial interpretations of section 43 have indeed been "muddled and subjective"
The majority acknowledges that judicial interpretations of s. 43 have been muddled and subjective right up to the present. Courts have acquitted parents and teachers for assaults with objects, to the head, on young children and teenagers, and assaults causing bruises and contusions. See Law, Table of Acquittals for examples of such acquittals in the 1990s to the present.

Physical punishment by schoolteachers illegal
While all justices agreed that schoolteachers may use reasonable force to restrain or remove children, they were unanimous in holding that corporal punishment by teachers is "not acceptable". However, the strap and paddle are still being used and threatened in some public and private schools. The education acts of Ontario, Manitoba, Saskatchewan and Alberta should be amended to make it clear that this is not allowed. Other provinces have already done so. When corporal punishment in all British schools was finally banned in 1996, the common law power to restrain students was set out in the UK Education Act. These provinces could do the same if they considered it necessary.

Court can't rewrite section 43 to make it constitutional
Both Justices Arbour and Deschamps held that the majority failed to interpret s. 43 according to its wording and decisions by lower courts and essentially rewrote the section in order to find it constitutional. Justice Binnie agreed that the majority interpretation "pushes the boundary between judicial interpretation and judicial amendment".