The Canadian Foundation for Children, Youth and the Law brought an action stating that s.43 of the Criminal Code violates the rights that children have under s.15 of the Charter. This section permits parents and teachers to use corrective force with children that is "reasonable under the circumstances" and not be charged with assault. The Foundation was unsuccessful in the lower courts.
- Is s.43 of the Criminal Code contrary to the s.15 Charter rights of children because it denies them protection that is given to adults?
McLachlin, writing for the majority, agrees that this section of the Code does not violate the Charter. She agrees that it is clear that a distinction is made here on the basis of an enumerated ground (age), but they do not think that this is a case of discrimination. She states that the most appropriate perspective to look at this case from is that of a child, and acknowledge that this is difficult to do.
When examining the factors she state that there is obviously a pre-existing disadvantage. Similarly, the fourth contextual factor is met, as the nature of the interest offended (physical integrity) is profound. She also agrees that there is no ameliorative purpose of the legislation relative to a disadvantaged group. Therefore, the only question is the second factor – whether s.43 fails to correspond with the actual needs of children. They argue that it does correspond with their needs, as children need to be disciplined. Further, it meets with the needs of parents and teachers, as they need to be able to exercise reasonable control over children. They state that introducing criminal law into children's families and education would harm the children more than it would help them. They say that because the law meets the actual needs of children it does not violate s.15 of the Charter.
Binnie J., dissenting in part, holds that the negative impact of allowing this legislation to remain should be dealt with in s.1, as it clearly violated s.15. He says that s.1 should deal with balancing the needs of the children and the other parties to see if this provision is justified. He finds that it cannot be justified for "teachers" and "pupils", and therefore that those words should be removed from s.43. However, he finds that the use of force by parents can be justified, and therefore this part of the legislation should remain.
The remaining dissenting justices find that none of s.43 can be saved by s.1. They essentially agree with the majority about three of the contextual factors, but argue that s.43 does not correspond with the actual needs of the children. They state that allowing such treatment demeans children and treats them as property rather than persons. They state that although there is a rational connection between the purpose of this section and the effect, this does not effectively minimally impair the rights of the children. Section 43 could have been stated in much narrower terms, and then it would have been much more appropriate.
Something can be saved from being termed "discrimination" if only one of the contextual factors - the correspondence of the law and the actual needs of the claimants - is not satisfied.