Introduction
The protection of children at the national level is a crucial aspect of sustainable and population-based legislation. The ability to promote laws and regulations aimed to create an environment in which the child feels safe and empowered is a valuable aspect of policymakers’ work. Attempts to discuss the problem of children’s rights abuses in Canada are indicative of the ambiguity of the local legislation (Truth and Reconciliation Commission of Canada, 2015). However, little attention is paid to the issue from the perspective of the Constitution. The current regulations on children’s rights are contrary to the Convention on the Rights of the Child and are discriminatory. This explains stakeholders’ intent to “call upon the Government of Canada to repeal Section 43 of the Criminal Code of Canada” (Truth and Reconciliation Commission of Canada, 2015, p. 1). As a result, children’s rights are infringed since violence, as a form of punishment, is contrary to social norms. This paper aims to substantiate the unconstitutional nature of Section 43 and present appropriate arguments. The analysis proves the injustice of the modern system of protecting children and upholding their rights. The justification of the presented position will highlight the key arguments in favor of revising Section 43, providing children more rights and freedoms, and criminalizing the use of physical punishment.
Contradiction of Section 43 to the Convention on the Rights of the Child
Section 43 of the Criminal Code is contrary to the Convention on the Rights of the Child. The latter is a globally ratified document that defines the principles of child safety, which include legislative, social, and other perspectives for a comprehensive protection system. However, Section 43 of the Criminal Code of Canada violates individual articles of this document. In particular, it is contrary to Article 3 of the Convention, which gives priority to the best interests of the child and states that “in all actions concerning children,… the best interests of the child shall be a primary consideration” (United Nations, 2017, para. 17). However, Section 43 and rather aims to represent the rights of adults in relation to interaction with children. In addition, it contradicts Article 19 on the right to be protected from all forms of physical or psychological violence, insult, or abuse (Assembly, 1989). Article 37 of the Convention is also violated in which States Parties ensure that no child is tortured or illegally deprived of liberty (Assembly, 1989). Thus, numerous provisions of Section 43 do not fit into the norms of global law.
Contradiction of Section 43 to the Canadian Charter of Rights and Freedoms
Section 43 infringes children’s rights under the Canadian Charter of Rights and Freedoms. At the level of the national legislation, this Section is in conflict with the existing child justice regulations. According to Paré (2017), it is inconsistent with several Sections of the Canadian Charter of Rights and Freedoms, in particular, the use of violence and physical punishment. As Locher-Lo (2018) states, the national law does not provide children with equal rights to safety against unlawful adult behavior, which infringes children’s freedoms. Covell et al. (2018) note that the Canadian Charter of Rights and Freedoms restricts children’s opportunity to enjoy full rights, which is inconsistent with the stated principles of equality. As a result, in the context of the national legislation, Section 43 has a number of gaps and inconsistencies.
The Lack of the Criminalization of Physical Punishment
Section 43 does not criminalize the use of physical punishment of children, which is unlawful. According to the Truth and Reconciliation Commission of Canada (2015), the government allows using physical force as a method of punishment. This practice is unacceptable in the context of the existing principles of ensuring children’s safety and respecting their rights. As Durrant et al. (2017) state, the judicial system involving interaction between the Supreme Court and local courts often ignores the problem of the lack of the criminalization of illegal acts committed against children in families. This order, in turn, harms children, limiting their chances of becoming responsible adults. In this regard, Michaelson (2018) argues that “a combination of both legislation and public education is the most sensible plan for Canada” (para. 15). Thus, drawing attention to the presented gap, in particular, the criminalization of physical punishment at the national level, is relevant as a measure to ensure children’s safety and preserve their rights and freedoms legislatively.
Conclusion
Section 43 of the Criminal Code of Canada contains ambiguous provisions that contradict both the Convention on the Rights of the Child and the country’s domestic law. The lack of the criminalization of the use of physical force as a punishment infringes upon children’s rights and freedoms and is a reason to revise the existing principles and norms the judicial system pursues. Drawing public attention to the problem is relevant in the context of an unambiguous gap in the considered legislation. The analysis proves the importance of taking appropriate actions in the context of the Canadian Constitution and creating a sustainable background to protect children from all forms of domestic violence and abuse.
References
Covell, K., Howe, R. B., & Blokhuis, J. C. (2018). The challenge of children’s rights for Canada (2nd ed.) Wilfrid Laurier University Press.
Durrant, J. E., Fallon, B., Lefebvre, R., & Allan, K. (2017). Defining reasonable force: Does it advance child protection? Child Abuse & Neglect, 71, 32-43. Web.
Locher-Lo, C. (2018). Are we “there” yet?: A comparative analysis of the Canadian standards on the corporal punishment of children in schools. Athens Journal of Education, 5(1), 73-89. Web.
Michaelson, V. (2018). Canada: What will it take to end physical punishment of children? National Post. Web.
Paré, M. (2017). Children’s rights are human rights and why Canadian implementation lags behind. The Canadian Journal of Children’s Rights, 4(1), 24-47. Web.
Truth and Reconciliation Commission of Canada. (2015). Truth and reconciliation commission of Canada: Calls to action. Web.
United Nations. (n.d.). Convention on the Rights of the Child. Web.