The Law
Section 43
Protection of Persons in Authority
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
Meaning of ‘justification’ in S. 43 – as per 1984 SCC Ogg-Moss decision
Section 43 is, in other words, a justification. It exculpates a parent, schoolteacher or person standing in the place of a parent who uses force in the correction of a child, because it considers such an action not a wrongful, but a rightful, one. Excerpt from unanimous judgment of Supreme Court of Canada by Dickson J. in Ogg-Moss v. R., [1984] 2 S.C.R. 173
Historical Background to Section 43
Section 43 of the Criminal Code is a defence to assault that justifies the use of reasonable force for the correction of children by teachers, parents or persons standing in the place
of parents. It is based on the idea that corporal punishment is morally right and necessary for training and educating children in the home and school.
This idea has its roots in the past when corporal punishment of adults as well as children was legal and commonly prescribed for offences ranging from minor misdemeanors to serious crimes.
Flogging, whipping and other methods of inflicting pain were routinely used in prisons, mental institutions and the military in the name of order and discipline. Flogging in the British
navy was only abolished in 1879 and in the British army in 1881. Until 1972, our Criminal Code allowed persons convicted of certain offences to be whipped with a cat-o’-nine tails.
Corporal punishment of wives, servants and apprentices
Corporal punishment for keeping order and discipline in the home, as in society at large, also has its roots in the past. “Domestic chastisement” as it was called in English common law allowed a husband to correct his wife by “moderate” beating on the basis that he was responsible for her behaviour.
It allowed corporal punishment of domestic servants by their employers and of apprentices by their masters. Such domestic chastisement was legal and commonplace until the nineteenth century.
Corporal punishment of children
By the 19th century, English common law had evolved to limit the corporal punishment of children. This evolution was confirmed by the 1860 decision in R. v. Hopley in which Lord Chief
Justice Cockburn held that corporal punishment of children must be limited to “moderate” chastisement. In Hopley, a schoolmaster had beaten a 14-year-old boy so severely that
the boy died of exhaustion from loss of blood. The schoolmaster had written the father and proposed beating the boy “to subdue his obstinacy by chastising him severely…if necessary, again and again…” The father had agreed. The schoolmaster was convicted of manslaughter for using excessive force and
imprisoned for 4 years.
In 1933, the common law right of a teacher, parent or other person in charge of a child to administer punishment was confirmed by legislation in s. 1 (7) of the Children and Young Persons
Act, 1933. In the 1935 edition of Halsbury’s Laws of England, the common law on the discipline of children is described in the following words:
A father has the right to restrain and control the acts and conduct of his infant child, and to inflict correction on the child for disobedience to his orders by personal and
other chastisements to a reasonable extent. He may delegate this right to a tutor, or schoolmaster, or other person.
Judges applied this standard in the rare instances where assault charges were laid against parents or teachers. Reasonable corporal punishment continued to be considered an essential part
of learning, discipline and moral development and was common in all classes of society. It included harsh beatings in the home and school, including ritualized beatings in the presence of other pupils at private schools for Britain’s elite. This became the model for other British and colonial schools – many of which continued this kind of discipline into the 1950s.
When our criminal law was codified in 1892, this English common law defence was simply incorporated as part of our first Criminal Code. It has remained virtually unchanged by our Parliament since then.
In 2001, section 44 of the Code that justified the use of reasonable force by the master of a ship for “maintaining good order and discipline” was repealed. The repeal came into effect in Dec/03.
Children are now the only remaining class of Canadians that can still be legally assaulted in the name of correction. The time has come to eliminate this defence altogether.
A Note on the Quebec Civil Code
In the past, the Quebec Civil Code gave parents and teachers a right to use “reasonable and moderate correction” on children under their care. In 1977, the wording was changed but the message remained essentially the same. In 1980, the article was repealed. This may have had something to do with the UN 1979 International Year of the Child and Sweden’s civil ban on corporal punishment, or it may have been part of a general overhaul of articles affecting children. In any event, it is now clear that Quebec parents have no right in provincial civil law to use corporal punishment as discipline.
The relevant articles of the Civil Code are as follows:
Article 245 of the 1866 Quebec Civil Code
The father, and in his default, the mother of an unemancipated minor have over him a right of reasonable and moderate correction, which may be delegated to and exercised by those to whom his education has been entrusted.
Article 245b of the 1977 Civil Code
The person having parental authority has a right to correct the child with moderation and within reason.
In 1980, the above article was repealed.
This repeal occurred at the same time as the repeal or change of several articles of the Civil Code dealing with various child/parent issues. The civil right of correction therefore ended at that time. This has no effect on s. 43, but it would be relevant in a civil action against a parent for damage sustained as a result of childhood maltreatment.