When defined as a use of reasonable force it is not a crime to spank your child in Canada.
Known as corporal punishment, physically reprimanding a child is not a criminal offence so long as the force is deemed reasonable as defined by the Criminal Code.
Section 43 of the Criminal Code pertains to corporal punishment of a child:
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
Section 43 of the Criminal Code offers parents and teachers a defence when they use reasonable force to discipline a child.
Some have called for an end to any form of physical punishment of children and youth in Canada, which would necessarily include the repeal of s. 43.
Those in defence of Section 43 argue that while abuse itself is never justifiable, minor physical punishment as means of reprimanding a child is circumstantially acceptable and that individuals should not be subject to criminal prosecution as a result of using reasonable force to discipline their children.
The defence of reasonable corporal punishment first appeared in the Canadian Criminal Code in 1892. It has remained mostly unchanged since then.
The Supreme Court of Canada upheld the provision in 2004.
Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)
On 30 January 2004, the Supreme Court of Canada released its decision in the case of Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General). The issue was whether s. 43 is unconstitutional.
Six of nine justices found that the provision does not violate the Canadian Charter of Rights and Freedoms, as it does not infringe a child’s rights to security of the person or a child’s right to equality, and it does not constitute cruel and unusual treatment or punishment.
S. 43 was upheld on the basis that it protects only parents, schoolteachers and persons who have assumed all of the obligations of parenthood.
Under s. 43 a risk of criminal conviction for assault would still exist if the force in question is proven to be used for non-educative or non-corrective purposes. S. 43 limits the type and degree of force that may be used.
The use of force must be sober and reasoned, address actual behaviour, and be intended to restrain, control, or express disapproval.
S. 43 does not justify force against children under two or those with particular disabilities as it demands that a child must have the capacity to understand the reason for the use of force.
“Reasonable under the circumstances” in s. 43 stipulates that the force must be must not harm or degrade the child, and must not be based on the gravity of the wrongdoing.
The force may not be administered to teenagers and may not involve the use objects to employ force, and may not be applied to the head.
The Supreme Court concluded that teachers may use force to remove children from classrooms or secure compliance with instructions.
If you have been charged with a criminal offence please contact Kostman and Pyzer, Barristers, for advice today!
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