Section 43 of the Criminal Code of Canada

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Section 43 of the Criminal Code of Canada

 “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
 in the circumstances.”

The Canadian Foundation for Children, Youth and the Law (CFCYL) has challenged and
continues to challenge the constitutionality of section 43 (see
http://www.jfcy.org/corporalp/corporalp.html)

In a recent summary of the case (Luft 2000a) expert witnesses for both CFCYL and the crown
agreed on many facts:


EXPERT EVIDENCE           [some of this pertains more to parents than to teachers]

①Corporal punishment of children under two is harmful, even when it is mild spanking. It has
no value and can destroy their sense of security and self-esteem. A child under two will not
understand why he or she is being hit.

②Corporal punishment of teenagers is not helpful and is potentially harmful. It achieves only
short-term compliance and carries with it the danger of alienation from society, along with
aggressive or otherwise antisocial behavior.

③The use of objects in corporal punishment, e.g. rulers, is potentially harmful both physically
and emotionally and should not be tolerated.

④Corporal punishment should never involve a slap or blow to the head.

⑤ Corporal punishment which involves injury is child abuse.


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⑥ They neither advocate nor recommend spanking or other forms of corporal punishment.

⑦ The only benefit to spanking is short-term compliance.

⑧ „Time out‟, whereby a child is placed in a chair or room and required to stay there for a period
of time until s/he calms down, is an effective alternative to spanking.

⑨ Spanking is defined as the administering of one or two mild to moderate „smacks‟ with an
open hand on the buttocks or extremities, which does not cause physical harm.

⑩ Not every instance of physical discipline, but only abusive punishment, should be
criminalized.


LEGAL ISSUES & ARGUMENTS


CFCYL argued that Section 43 violated the Canadian Charter of Rights and Freedoms as
follows:

   -   violates child‟s right to security of the person (Sec. 7 of the Charter)

   -   violates child‟s right to equal treatment (Sec. 15) based on age

   -   violates child‟s right not to be subjected to cruel and unusual treatment or punishment
       (Sec. 12)

   -   is too vague, thereby violating the fundamental justice aspect of Sec. 7


   The Attorney General of Canada maintained:

   -   Sec. 43 creates a protected sphere of activities within which teachers and parents can
       carry out the important function of nurturing and educating children

   -   properly interpreted, Sec. 43 excuses only a narrow range of mild to moderate corrective
       force, thus ensuring that children are protected from child abuse


   The Canadian Teachers‟ Federation was an intervener in this case, and it:

   -   supported the Attorney General‟s position

   -   explained how removing Sec. 43 would detrimentally affect the work of teachers




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   -   did not support corporal punishment, but argued that teachers must have the authority to
       restrain an unruly or aggressive student and to remove such a student from the classroom


   SUMMARY

   The Ontario Superior Court found Sec. 43 to be constitutional.

   Suggests that Sec. 43 can only be used as a defence if:

①the force was for the purpose of correction

   -   if motivated by anger or with an intent to injure, it is not for correction

   -   if the punished child is not capable of correction (too young, mentally handicapped, etc.),
       it is not for correction

and ② it was „reasonable in the circumstances‟

   -   must look objectively at the nature of the child‟s offence calling for correction, the age
       and character of the child and likely effect of the punishment on the particular child, the
       gravity of the punishment, the circumstances under which it was inflicted and the
       injuries, if any suffered (apply community values)


The court‟s recognition that corporal discipline provides short term compliance suggests some
latitude where force is used for restraining or coercive purposes in the classroom, rather than
punishment.




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