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Assault, as defined in the Criminal Code of Canada, is illegal. It includes any form of physical punishment that parents, teachers, or caregivers traditionally use to correct their child’s behaviour such as spanking, pinching, or washing a child’s mouth out with soap for foul language. However, section 43 of the Criminal Code provides a statutory defence to assault for parents, teachers, and other caregivers like babysitters or foster parents. This is as long as the corporal punishment employed is "reasonable force" for disciplining children in their care.
The provision specifies that “every school teacher, parent, or person in the place of a parent is justified in using force by way of correction toward a pupil or child under their care if the force does not exceed what is reasonable under the circumstances”. This defence applies only to caregivers disciplining children with whom they have a special relationship of care.
In contrast, it doesn't permit any adult who happens to be a teacher or a parent to discipline children not under their care or supervision at the time of the incident. Furthermore, the s. 43 Defence necessitates that the force used is reasonable in the circumstances.
The s. 43 defence has been a controversial topic. Back in 2004, the constitutionality of the offence was challenged in the Supreme Court of Canada by the Canadian Foundation for Children, Youth and the Law. They claimed that the s. 43 defence infringes several sections of the Canadian Charter of Rights and Freedoms. After hearing arguments from all sides, the Supreme Court held that the s. 43 defence was constitutional.
The Court clearly expressed that using physical punishment as part of a genuine effort to educate the child is not considered a criminal offence. Yet, it defined a condition where the punishment does not pose a reasonable risk of harm that is more than transitory and trivial and is reasonable given the circumstances.
The Supreme Court of Canada offered various recommendations on how to interpret the defence in the future. For instance, they argued that the use of corporal punishment for teenagers or children under the age of two is ineffective and should be banned. Furthermore, they denounced the use of instruments such as rulers or belts and were particularly against punishments that involved striking a child on the head or face.
Also, the Court drew a line between punishment by parents and caregivers and punishment by teachers. They stated that physical punishment by teachers is not acceptable. Yet, they admitted that teachers should be allowed to use reasonable physical force to remove children from classrooms or ensure compliance with instructions. This exception would permit teachers to break up fights between students, forcibly remove a child behaving disruptively or dangerously from the classroom, or forcibly take a prohibited object from a student's possession.
The Supreme Court of Canada advised Parliament to amend s. 43 to reflect these proposed changes. Shortly after the decision, Liberal Senator Céline Hervieux-Payette initiated a bill in the Senate to completely eliminate the s. 43 defence.
Over a period of more than three years, this proposed legislation was contemplated by the Senate. During this time, associations of criminal defence lawyers, such as the Canadian Bar Association and the Canadian Council of Criminal Defence Lawyers, openly advocated for keeping the s. 43 defence.
Later, the proposal was modified to allow parents and caregivers to use force in very specific situations. For example, under the suggested legislation, parents or caregivers could use a soft spanking on the hand to prevent a child from doing something dangerous or harmful; but, routine physical punishment and the act of spanking as premeditated punishment would be considered illegal. The approved Bill was then transferred to the House of Commons for approval.
Before the House could vote on the bill, however, Parliament was dissolved for an election. As a result, the s. 43 defence was never altered and its wording remains exactly the same as it was when the Supreme Court decided on the Canadian Foundation for Children, Youth and the Law case.
Most of the Supreme Court's recommendations in the Canadian Foundation for Children, Youth and the Law case were never incorporated into the Criminal Code provision. However, when interpreting the s. 43 exceptions, courts have consistently taken into account the Supreme Court's suggestions, specifically, the requirement that physical punishment "does not exceed what is reasonable under the circumstances".
Generally, courts have accepted that parents and caregivers shouldn't resort to physical punishment of children who are under the age of two or are teenagers. In this way, the Supreme Court of Canada's recommendations have been applied as a clarification of what is deemed as "reasonable force" in the context of a caregiver-child/student relationship.
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