Using force against anyone without his/her consent is an assault under our Criminal Code. Children do not have the full benefit of this law against assault because section 43 of the Code justifies hitting them for ‘correction’.
In Jan/04, a majority of the Supreme Court of Canada held s. 43 constitutional and continued to allow hitting if certain criteria, including an age limitation, were met. A minority of the Court did not accept this judicial rewriting of s. 43 and held it unconstitutional on the basis that it violated our Charter of Rights and Freedoms.
As Justice Binnie noted in his dissenting opinion, the majority judgment still leaves considerable scope for corporal punishment of children between 2 and 12 years of age. Such punishment, he wrote, violates the child’s dignity, partly due to the humiliation he or she is likely to feel but mainly due to the lack of respect inherent in the act. In spite of this, he upheld s. 43. The two other dissenting judges would have struck it down.
Section 43 should be repealed for the following reasons:
Section 43 violates human rights
The right to physical security through legal protection from assault and threats of assault is the most fundamental of all human rights. It affirms a person’s right to dignity and respect as well as physical security. It is a right that all adults take for granted but is denied to children by s. 43 of the Code.
The law on assault no longer gives husbands a defence that allows reasonable force to ‘correct’ a wife. There is no disagreement that such an assault, no matter how minor, should be an offence under the Code. The same protection needs to be fully provided for children.
The UN Committee that monitors compliance with the UN Convention on the Rights of the Child has twice recommended that Canada prohibit corporal punishment of children. In 2003, it informed our government that it was ‘deeply concerned’ that Canada has taken no action to remove s. 43 from the Code.
Section 43 reflects 19th century attitude that contradicts current knowledge
Section 43 came into our Criminal Code in 1892 and reflects a 19th century belief that corporal punishment is an appropriate and necessary way to correct children. Most parents who continue to use corporal punishment are simply following a practice approved by Canadian law and custom since 1892.
Contemporary knowledge of child development contradicts this belief. It is time the law reflected this change by repealing s. 43 and informing the public that this method of discipline is no longer approved by our law. In 1996 the Supreme Court of Italy held that the correction of children by corporal punishment is ‘culturally anachronistic and historically outdated’.
25 countries in Europe and elsewhere – most recently New Zealand – have ended this defence, or where there was no such defence in their criminal law, specifically banned corporal punishment of children in their civil law.
Section 43 creates risk of physical harm
By justifying ‘reasonable’ assaults on children for correction, the law puts its seal of approval on a method of discipline that not only violates a basic human right but also heightens the risk of physical harm.
Most substantiated cases of child abuse result from attempts to discipline children by corporal punishment that has escalated to abuse. (Trocme, 1994, 2001, 2002). Child abuse is a major social problem not only because of its physical and psychological harm but also because the financial cost of dealing with it is estimated at over $15 billion annually (Law Commission of Canada, 2003). Preventing child abuse has to start with the legal and cultural rejection of corporal punishment.
Section 43 creates risk of psychological harm
Hitting is an assault on the mind and emotions as well as the body. The risks of physical and psychological harm from even ‘minor’ corporal punishment – especially where this is a routine form of discipline – are indicated by research (Durrant 1995; MacMillan 1999). Children are the most vulnerable group in society. This vulnerability increases where the law allows ‘correctional’ assaults on children by adults depended on for protection and well-being.
Section 43 contradicts Health Canada advice
Health Canada clearly states: It’s never okay to spank a child. It’s a bad idea and it doesn’t work. (Nobody’s Perfect, Health Canada 1997). Provincial governments and child protection agencies give the same advice. Section 43 contradicts this message and encourages the belief that spanking is a rightful form of discipline. Neither the federal government nor any expert witness in the constitutional challenge to s. 43 recommended spanking or other form of corporal punishment as a method of discipline.
Supreme Court decision continues to put children at risk
The Jan/04 Supreme Court of Canada decision continues to allow corporal punishment of children age 2 – 12 years, subject to various criteria. However, as shown by the 2006 Toronto Public Health National Survey, 80% of the public is unaware of this decision.
Attempting to educate the public about these criteria is not a solution since this would publicize the legality of hitting at a time when governments, protection agencies and children’s organizations have condemned the practice and are trying to discourage it.
Even if the public knew of these criteria, continuing to justify ‘minor’ hitting of 2 – 12 year-olds perpetuates the risk of physical and psychological harm to these children – and to others outside this age group as well. It is unrealistic to think these criteria, even if known, would be kept in mind by parents who use corporal punishment.
Section 43 undermines education on alternative methods of discipline
Attempts to educate the public about the dangers of corporal punishment and alternatives to it are undermined as long as the law continues to justify it. Conflicting messages from Health Canada and the Criminal Code confuse the public and undermine provincial government efforts to protect children.
Section 43 doesn’t teach self-discipline
Discipline that relies on fear and punishment is not the way to teach children to discipline themselves. If the reason for good behaviour is the fear of parental punishment, there is little incentive for such behaviour when the fear of parental punishment ends.
Section 43 contributes to general level of violence
Discipline should be taught by example – not by hitting. Parents are the child’s most important role models and set a bad example when they hit children. Hitting creates the danger that children will follow this example in relations with other children, during youth, and in raising the next generation. This parental example contributes to the general level of violence in our society.
Section 43 is not needed as a defence to assault in the following situations:
Other Criminal Code defences allow use of reasonable force
Section 43 is not needed as a defence to assault where reasonable force is used for self-defence, defence of others, defence of property, and prevention of trespass or preventing the commission of an offence. Sections 27 to 41 of the Criminal Code justify the use of reasonable force in all these situations.
Consent to reasonable force can be implied
Section 43 is not needed as a defence to assault for pulling a child away from danger in traffic or placing in a car seat. Assault is defined as the unconsented application of force. Consent can be express or implied. Where force is necessary to prevent danger to a child – or adult – its use is justified because it can be implied that the child or adult consents to protection from harm.
Reasonable force is allowed for restraint
Section 43 is not needed as a defence to assault for parents and teachers who use reasonable force to restrain a child who is having a ‘tantrum’ or needs a ‘time-out’. Using restraint in such situations is part of the everyday experience of raising children. This is so obvious that it has long been recognized by the common law and hardly needs explicit inclusion in the Criminal Code. Reported court decisions in fact show that almost all assault cases in which s. 43 is raised as a defence involve hitting – not restraint.
Necessary force is allowed in upholding the law
Section 25 of the Criminal Code authorizes everyone to use ‘as much force as necessary’ to administer or enforce the law. Schoolteachers have a duty under provincial education acts to keep good order in schools. In addition to the common law, they have the benefit of this defence to assault in situations such as escorting a child out of the classroom or into a line-up. Persons working with children or adults in other settings also have this defence if legislation governing their work requires them to carry out duties that may necessitate the use of force.
Trivial offences are not prosecuted
Repealing s. 43 does not mean that parents will be charged and prosecuted for minor slaps or spanks. Police and prosecutors use the de minimis rule to screen out prosecutions for minor breaches of the law. Unless a ‘zero tolerance’ policy is adopted, such charges or prosecutions are not considered in the public interest. Provincial attorneys-general can also issue guidelines to ensure that prosecutions are only launched where necessary. Instead, social services are alerted to provide counseling and other forms of assistance where parents need such help.