Correction of Child by Force
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. R.S.C., 1985, c .C-4
1. What is section 43?
Section 43 of our federal Criminal Code is a special defence to assault that justifies corporal punishment of children by teachers, parents, and substitute parents if the force used is reasonable and for the child’s correction. It became part of our Criminal Code in 1892 and has remained virtually unchanged since then. Section 43 is “special” because it is the only defence to assault that justifies hitting for correction and because it only applies to people under age eighteen.
In law, “justified” refers to actions that are rightful. If parents or teachers are charged with assault on a child under their care and the court holds that the hitting was reasonable and for correction, the assault is justified and they must be acquitted. Our courts have held that severe spanking, slapping, and hitting children with belts and other objects is reasonable under section 43. See The Law, Table of Acquittals, for examples.
In a constitutional challenge to section 43, the majority of the Supreme Court of Canada upheld the section but outlined criteria that lower courts should follow in deciding on the extent of punishment allowed. Three members of the Court dissented. This Jan/04 decision therefore continues to allow common assaults on children. Some of the Supreme Court’s criteria are unclear, most Canadians are unaware of them, and the federal government has made no attempt to inform the public about them. For a list of the criteria, see The Law, Supreme Court of Canada Decision.
2. Why should section 43 be repealed?
The following are the basic reasons why we advocate repeal. For further information, click Why We Advocate repeal chapter.
Violates human rights
Reflects 19th century attitude that contradicts current knowledge
Risks physical and psychological harm
Contradicts Health Canada advice
Supreme Court decision continues to put children at risk
Undermines education on alternative methods of discipline
Doesn’t teach self-discipline
Contributes to general level of violence
3. Is a spanking that doesn’t cause physical harm really an assault under our Criminal Code?
Yes. Assault is defined in section 265 of the Code as the intentional application of force to a person without that person’s consent. Hitting anyone, including a child, without their consent is an assault. If it does not cause any physical harm, it is the offence of common assault. The rationale for this offence is that hitting is an affront to a person’s dignity and shows a lack of respect. If it causes physical harm, it may be the more serious offence of assault causing bodily harm, aggravated assault, or assault with a weapon.
4. Are you advocating a new law to “ban spanking”?
No. Enacting new legislation to ban spanking by making it a new and separate criminal offence is not necessary because it is already an offence under section 265 of the Code. We are simply advocating that the special defence of s. 43 be repealed.
5. Would minor spankings be prosecuted if section 43 is repealed?
No. Even though a minor spanking is an offence under the Criminal Code, it is not prosecuted because of the common law de minimus rule against prosecuting trivial breaches of the law. Repealing s. 43 would not change this. The rule against prosecutions for trivial breaches of the law would still apply.
6. Would corporal punishment that is more than minor but less than severe have to be prosecuted if section 43 were repealed ?
No. Prosecution is only appropriate where it is in the public interest. Prosecutors have discretion in deciding whether an offence should be prosecuted. Provincial governments can provide guidelines on dealing with offences that require a special approach to enforcement. If s. 43 is repealed, guidelines could require that counselling and other practical services be offered to help parents learn other methods of discipline. Prosecution could be resorted to only where these failed or the assault was severe enough to warrant prosecution as a deterrent.
7. Is using reasonable force to restrain a child from harm or controlling a misbehaving child an assault under the Code ?
No. Consent to reasonable force can be either express or implied. It is express when, for example, written consent is given for a medical operation. It is implied when the person against whom the force is used would have consented, if competent to do so.
The common law has long recognized that parents and teachers may have to use reasonable force to remove a child from harm, put an unwilling child to bed, in a car seat, or on a school bus. These are common, child-caring actions for which the law implies consent on the part of the child. They are entirely different from hitting a child for correction and do not constitute an assault.
The Criminal Code includes specific defences that recognize the right to use reasonable force for self-defence and in situations such as protecting others, protecting property, and preventing trespass. Ending s. 43 would not prevent teachers or parents from using reasonable force to break up a fight between children.
8. Why not amend section 43 instead of repealing it?
Without full legal protection from assault, a child’s basic right to respect, dignity and personal security is violated. Amending section 43 to limit corporal punishment by age, certain parts of the body, or by prohibiting implements also opens the door to punishment that may well go beyond any established limits.
9. Is spanking child abuse under provincial protection acts?
It is sometimes claimed that repealing s. 43 would equate any spanking with child abuse and that parents who spank will have their children taken into care under provincial child protection acts.
Child abuse is referred to only in provincial child protection acts – not in the Criminal Code. Whether spanking amounts to abuse depends on how it is defined by those acts. Physical abuse is generally defined as physical harm. Repealing s. 43 would not change these definitions. It would simply establish the principle that hitting for correction is no longer approved by our criminal law. Harm would still have to be proven under provincial acts for spanking to amount to abuse.
If a spanking consists of occasional one or two mild to moderate smacks with an open hand on the buttocks or extremities, witnesses in the current constitutional challenge to s. 43 agreed that this would not amount to child abuse. If, however, the spankings were severe or frequent and caused physical harm, child protection authorities would be required by provincial law to take steps to protect the child. The preferred approach is counselling and practical help. Protection orders are sought from provincial courts only as a last resort.
10. Would repealing section 43 improve the protection of children under provincial protection acts?
Yes. Criminal law plays an important educational role in shaping community standards. Repeal would make it clear that corporal punishment is no longer approved not only because it creates a risk of harm but also because it violates a child’s dignity and basic human rights. Where reports of harm or suspected harm as a result of corporal punishment were received, child protection workers would advise parents that s. 43 no longer exists as a defence. This would be an important incentive for parents and others to learn positive methods of discipline. It would end the contradiction between the Criminal Code approval of corporal punishment and government and other efforts to persuade parents to adopt alternatives.
11. Would provincial protection acts have to be amended if section 43 repealed?
No. Repeal would not require provincial protection acts to be amended. These acts require proof that a child has suffered harm or is likely to suffer harm resulting from the conduct of the child’s caregiver. This has to be proven whether s. 43 exists or not.
Protection agencies, however, would need greater funding than they presently receive to facilitate earlier intervention to assist families before corporal punishment escalates to a point where harm or a likely risk of harm results. This initial increase in funding would be more than offset by the much greater costs of dealing with harm after the event since prevention is far less expensive in the long run. See our Research chapter for the Law Commission study The Economic Costs andConsequences of Child Abuse in Canada for estimates of these costs.
12. Have other countries ended this defence to assaults on children for correction?
Yes. Sweden removed a defence to assault similar to ours from its criminal code in 1957; Finland in 1969; Norway 1972; Austria 1977; Denmark 1985; and Israel in 2000. The Italian Supreme Court declared its law allowing corporal punishment of children unconstitutional in 1996.
To bring these changes more clearly to the attention of the public, some of these countries also amended their civil child protection legislation to state that no child shall be subjected to corporal punishment. Educationalcampaigns linked to these amendments brought this message to public attention.
More recently, Germany, Latvia, Croatia and Cyprus, Iceland, Romania, Ukraine, Hungary, Bulgaria, Greece, and The Netherlands have amended their civil child protection acts to state that corporal punishment should not be used.
In 2007, New Zealand repealed its criminal code defence allowing corporal punishment of children: the first Commonwealth country to do so. Its defence was almost identical to our s. 43.
Corporal punishment by teachers is illegal in all western European countries – in some since the nineteenth century. In Britain it was completely banned in 1998. Hitting by teachers has also recently become illegal in a number of Asian and African counties.
See International Developments chapter for further information.
13. Why is section 43 being debated now?
The 1979 United Nations International Year of the Child and the 1989 UN Convention on the Rights of the Child turned an international spotlight on the rights of children for the first time. The 1982 Canadian Charter of Rights and Freedoms increased awareness of the importance of fundamental human rights. It gave children a constitutional basis to claim the same protection from assault as adults and a constitutional challenge to s. 43 was initiated in1998. Our committee was established in early 1994 to advocate repeal. In 2004, a coalition of 6 national organizations and the Children’s Hospital of Eastern Ontario published the Joint Statement on Physical Punishment of Children and Youth recommending that children be given the same legal protection from assault as adults. All these developments have focused attention on this section of the Code.
14. Why was section 43 challenged in the courts?
Our government has rejected requests from many organizations, researchers, individuals, and Parliamentary Committees to repeal or at least initiate public hearings on s. 43. In 1998 the Canadian Foundation for Children, Youth and the Law began an action in the Ontario courts to have the section struck down on the basis that it violates the Canadian Charter of Rights and Freedoms. The Ontario Superior Court criticized s. 43 but held that it did not violate the Charter. The Ontario Court of Appeal held that even if s.43 violates the Charter, it is nevertheless justified. The Supreme Court of Canada heard an appeal from this judgment and on January 30, 2004 issued a split decision in which the majority upheld the section but stated that certain new criteria should be used to interpret it. Three justices filed dissenting opinions. See The Law, Supreme Court of Canada Decision for a note on the decision and a summary of lower court judgments interpreting the decision. Our Constitutional Challenge chapter gives more detailed comment as the case went through the Ontario courts. These court actions greatly increased public interest and debate on the issue.
15. What do people say about being spanked as a child?
Some say ‘I was spanked and I’m ok.’
We suggest the ‘I’m ok’ response is probably because:
- recognizing that spankings can cause lasting harm would require an admission that the person spanked may have problems they may not recognize or want to acknowledge,
- most adults want to think well of their parents and don’t want to appear critical of them by conceding that childhood spankings may have caused harm,
- they may have spanked their own children and don’t want to think they have done anything wrong,
- they have internalized the message that they were ‘bad’ children and ‘deserved’ physical punishment,
- to the extent they are ‘ok’, this may be in spite of spankings and because other people dealt with them in a positive way during childhood that did not include spankings.
Others say childhood spankings have left them with psychological, addiction and other problems they are still trying to cope with long into adulthood.
We occasionally receive emails referring to these effects. The following is an abbreviated example of a recent one from a Vancouver man in his forties.
“How Canada as a society can claim to embody non-violent principles, yet continue to condone and maintain the physical assault of its most helpless and vulnerable members by those explicitly responsible for their care and safety is a contradiction that would be laughable – were it not so disgusting, tragic, and indicative of deep emotional disturbances within our national psyche. The question “Why does a parent hit a child?” can only be answered ONE way, in any country, culture, or given social situation: “Because they CAN.”
Parents and other adults hit children as a means of punishment and control simply because children themselves have no recourse against such treatment. If children could fight back physically in any meaningful manner, this practice would disappear overnight. Until I was able to fight back both physically and intellectually, I was constantly spanked in the most humiliating manner until 13 years of age.
These spankings would consist of 10 – 15 blows on the backside, and were almost exclusively preceded by the humiliating practice of having my pants and underwear pulled down to my knees, except for the occasional public situation where it was deemed too embarrassing for my parents, or too difficult to justify in the eyes of others who might disapprove. How can we possibly expect to teach our citizens that violence is not a viable means of conflict resolution, when it is made so clear to them in childhood that, in fact, it IS?
The physical and psychological abuse in my home destroyed my self-esteem, and ultimately drove me into running away at age 15, thus ending my education, and sentencing me to a lifetime of depression, crime, substance abuse and other deep emotional difficulties. It is time for people of the world to stand up, without fear, and conduct the bravest human experiment of all: STOP HITTING OUR CHILDREN!“
16. Would repealing s. 43 violate the right to freedom of religion guaranteed by s. 2 (a) of the Charter?
No. This question doesn’t appear to have been raised in any Canadian court and judging from 3 Supreme Court of Canada decisions in 1995 and 2004, if raised, would be answered in the negative.
The first Supreme Court decision is B. (R.) v. Children’s Aid Society of Toronto (1995) in which Jehovah Witness parents refused permission on religious grounds for a blood transfusion for their baby. The Court accepted medical evidence that this endangered her life and held that s. 2(a) does not protect conduct that overrides Charter s. 7 guaranteeing life and security and does not include religious practices that threaten the safety, health or life of a child.
On the same day, the Court orally dismissed an appeal in Halcrow v. The Queen in which a BC woman was convicted of assault causing bodily harm for the 1978 beating of her teen-age foster daughter with a belt. Her counsel argued that the woman was a devout member of the Pentecostal church, a fundamentalist Christian church, who believed that Scripture required her to use a rod for correction. Her counsel argued, inter alia, that this was relevant to the purpose and reasonableness of the beating but made no argument on s. 2(a) of the Charter.
In the 2004 Supreme Court decision, Canadian Fdn and AG Canada, Focus on the Family was part of an intervener coalition supporting s. 43. Although the parenting books it promotes are religiously based and recommend punishment with an object and that causes pain, it did not argue that repealing s. 43 would violate s. 2 (a) of the Charter. In its split decision, the Court upheld s. 43 but decided that corporal punishment of children under age 2 and over 12 years or using objects to punish any child is harmful and not allowed. If an argument for s. 43 were based on the Charter guarantee of freedom of religion, it seems clear that accepting this would contradict both the Canadian Fdn. and B. (R.) decisions.
In 2002, the UK Court of Appeal heard a challenge to legislation that prohibits corporal punishment in schools. It was brought by a group of 40 Christian schools that argued such punishment should be legal with parental consent. They claimed that corporal punishment was part of religious doctrine protected by the European Convention on Human Rights. Opposing groups, including the religious think-tank Ekklesia, contended that this attempt at biblical justification for corporal punishment was ‘bad theology’. The Court of Appeal rejected the challenge.
17. What can I do to support repeal?
If you support repeal and want to contact the government or explore other ways to make your views known, see How to Support Repeal. If you want to find out about alternatives to corporal punishment or read more about reasons for ending it, see Links.