Q:I am trying to figure out where to send my 10-year-old son to school this fall. Last year, a teacher took him into the hall and gave him several slaps across the butt. Is this permissible?
A:When I was a kid, I was less worried about what the teachers would do than what would happen when I got home. I grew up when it was permissible for an adult to give a misbehaving child a whack to straighten them out.
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In Canada, this practice has been scrutinized for some time. The law is no longer clear, so I would be careful about striking a child because liability for such actions may ensue.
This use of force by a teacher is protected under 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 under the circumstances.”
The person administering the force must be one of those listed. Second, the child or student must be under the care of the person applying the force. Third, the force must be proportionate and for the sole purpose of correcting the child. Any other reason is not protected.
In 2004, a challenge to this law went to the Supreme Court of Canada. In addition to the litigants, a large number of special interest groups intervened to make submissions.
There were numerous views of what was right in this Supreme Court case, and the narrow majority decision of 5 to 4 indicates how diverse their views were. But Section 43 remains the law in Canada.
LEGAL GUIDELINES FOR DISCIPLINING CHILDREN
•The person applying the force must intend it to be for educative or corrective purposes. Outbursts of violence against a child driven by anger or frustration are not for this purpose and not protected under Section 43. The code protects only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolic disapproval of this behaviour.
•The child must be capable of benefiting from the correction. This requires the child to have the ability to learn and the possibility of successful correction. Force against children under age two cannot be corrective, since on the evidence, the court concluded they are incapable of understanding why they are hit. Also on the evidence before the court, force doesn’t work on teenagers and is therefore inappropriate. A child may also be incapable of learning from the application of force because of disability or some other factor.
•Only minor corrective force of a transitory and trifling nature can be used. A spank or two might qualify. A beating with a closed fist never would.
•Degrading, inhuman or harmful conduct is not protected by Section 43. Discipline by the use of objects or blows or slaps to the head is unreasonable. Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment. The seriousness of the student’s conduct leading to the punishment doesn’t matter and is not a factor.
Rick Danyliuk is a lawyer with McDougall Gauley LLP in Saskatoon.
