Assault is illegal under the Criminal Code of Canada. Assault, as defined in the Code, includes any form of physical punishment parents, teachers or caregivers traditionally use to correct their child’s behaviour such as spanking, pinching, or washing a child’s mouth out with soap for foul language.
However, section 43 of the Criminal Code contains a statutory defence to assault for parents, teacher, or other caregivers (such as babysitters or foster parents) when the corporal punishment is “reasonable force” employed to discipline children in their care.
The provision states that “every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances”.
Thus, the defence only applies to caregivers disciplining children with whom they have a special relationship of care. This provision does not allow any adult who happens to be a teacher or a parent to discipline children who are not under their care or supervision at the time of the incident. Moreover, the s. 43 defence requires that the force used is reasonable in the circumstances.
The s. 43 defence is highly controversial. In 2004, the Canadian Foundation for Children, Youth and the Law [CFCYL] challenged the constitutionality of the offence in the Supreme Court of Canada [SCC] in a case called Canadian Foundation for Children, Youth and the Law v. Attorney General in Right of Canada. The CFCYL claimed that the s. 43 defence violates several sections of the Canadian Charter of Rights and Freedoms. The SCC heard arguments on all sides of the issue, and held that the s. 43 defence was constitutional.
The Court clearly stated that it is not a criminal offence to use physical punishment as “part of a genuine effort to educate the child,” if the punishment “poses no reasonable risk of harm that is more than transitory and trifling, and is reasonable under the circumstance”.
However, the SCC made several recommendations about how to interpret the defence in the future.
For example, the SCC stated that the use of corporal punishment for teenagers or children under the age of two is not effective and should be banned.
The court also deplored the use of instruments such as rulers or belts. Finally, the SCC spoke out against punishments that involve striking a child on the head or face.
The Court also differentiated between punishment by parents and caregivers and punishment by teachers. The Supreme Court held that physical punishment by teachers is unacceptable. However, they conceded that teachers should be able to use reasonable physical force to remove children from classrooms or secure compliance with instructions.
This exception would allow teachers to do things such as breaking up fights between students, remove highly disruptive or dangerous students from the classroom by force, or forcibly remove a prohibited object from a student’s possession.
The SCC suggested that Parliament amend s. 43 to reflect the proposed changes above. Shortly after the decision, Liberal Senator Céline Hervieux-Payette introduced a bill to the Senate to eliminate the s. 43 defence completely.
The Senate considered the proposed legislation for more than three years. During this time, associations of criminal defence lawyers such as the Canadian Bar Association and the Canadian Council of Criminal Defence Lawyers publically spoke out in favour of retaining the s. 43 defence.
The proposal was subsequently amended to allow parents and caregivers to use force in very specific situations. For example, under the proposed legislation, parents or caregivers could use a soft spank to the hand to stop a child from doing something dangerous or harmful; however, routine physical punishment and the use of spanking as premeditated punishment would be illegal. The Bill was passed in the Senate and moved to the House of Commons for approval.
However, before the House had a chance to vote on the bill, Parliament was dissolved for an election. Thus, the s. 43 defence was never amended and the wording remains exactly the same as it was when the SCC decided Canadian Foundation for Children, Youth and the Law v. Attorney General in Right of Canada.
Thus, most of the recommendations the SCC made in Canadian Foundation for Children, Youth and the Law v. Attorney General in Right of Canada were never incorporated into the Criminal Code provision.
However, subsequent courts have consistently paid attention to the SCC’s suggestions when interpreting s. 43 exception, specifically the requirement that physical punishment “does not exceed what is reasonable under the circumstances”.
Courts have generally accepted that parents and caregivers should not engage in physical punishment of children who are under the age of two or are teenagers.
In this way the Supreme Court of Canada recommendations have been implemented as a clarification of what constitutes “reasonable force” in the context of a caregiver child/student relationship.
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