A section of the Criminal Code permitting parents and teachers to use physical force to discipline children does not violate a child’s constitutional rights, Canada’s Supreme Court ruled Jan. 30.
The section states “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.”
The case came before the courts not because a teacher or parent was charged with assaulting a child, but because the Canadian Foundation for Children, Youth and the Law sought a declaration that section 43 violated a child’s right to security of the person. It said that spanking as a form of corporal punishment was cruel and unusual and that a child’s equality rights were violated because they were singled out for different treatment than adults.
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Six of nine judges ruled that section 43 did not violate the constitution. While they held it to be valid, they said there were limits on when and how much force could be used. The court noted the following limits: force had to be used for corrective purposes and be reasonable; it should not be used on children under two or on teenagers; it should be of “a transitory and trifling nature” and not “degrading, inhuman or harmful”; use of objects and blows to the head are unacceptable; force should not be administered in anger and teachers should only use force “to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment.”
Two dissenting judges suggested that placing the above limits on section 43 amounted to reading in limitations that weren’t written in the law. Some commentators have criticized the Supreme Court for not interpreting law but making law – a function that should be reserved for Parliament and the legislatures.
One of the dissenting judges further ruled that the law was vague as to when and how force could be used and therefore violated the constitutional provision ensuring security of the person. Another dissenting judge ruled that the section was invalid because it created a different standard for children. A third dissenting judge held that the section is valid as to parents, but not for teachers. In some provinces, the use of straps and force is prohibited by laws dealing with education.
The six majority judges also feared that if section 43 were deemed invalid, many petty family disputes would end up in court with children alleging they had been assaulted by their parents.
This case was not about whether spanking and other force is an acceptable means of discipline. It was about whether section 43 was contrary to the constitution.
Nor does this mean the end of the debate on corporal punishment. As pointed out by several judges, Parliament can repeal, modify or even strengthen the provision. And community and social standards change, some judges noted. At one time it was deemed acceptable and legally permissible to use physical force to discipline one’s spouse or employees. Today, such conduct is unacceptable and constitutes assault.
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
