Spanking is a form of physical discipline known ascorporal punishment. Parents and experts alikeoften hold different opinions on whether spanking
is an appropriate way to control a child who ismisbehaving. The purpose of this pamphlet is to reviewrecent Court decisions on the use of physical disciplinetowards children by parents and guardians. It providesgeneral information on the topic and discusses Section43 of the Criminal Code of Canada. It should only beused as an information resource as it does not contain acomplete statement of the law in the area and lawschange from time to time. Anyone needing specific adviceon his or her own legal position should consult a lawyer.
Is spanking children against the law?The law assumes that spanking a child to‘correct’ the child’s behavior is not againstthe law as long as the force used isreasonable. Section 43 of the CriminalCode of Canada provides a defence forparents, parent substitutes andteachers who used corporalpunishment to discipline a child intheir care and who have been chargedwith physically assaulting that child. Thissection of the Criminal Code is oftenreferred to as “the spanking provision”.
Does that mean it’s all right to use physicaldiscipline with children?Not necessarily. There is often a fine line between
spanking a child and physical abuse of a child.If the force used slips into abusive,
harmful or degrading conduct, it couldresult in a criminal charge or trigger achild protection investigation. Therehave been cases when parents orteachers have been charged with
assault for spanking a child or usingother forms of physical punishment. Over
the past several years, many provinces have enactedlegislation to prohibit the use of corporal punishment ofstudents by teachers.
Has Section 43 of the Criminal Code beenchallenged in court?Yes, the Canadian Foundation for Children, Youth and theLaw challenged the constitutionality of Section 43 in anOntario Court. In July 2000, the Court upheld Section 43and the judge dismissed the application. The Foundationappealed to the Ontario Court of Appeal and in September2001 the Court again upheld the constitutionality ofSection 43. The case was then appealed to SupremeCourt of Canada, which is the highest level of court inCanada. The Supreme Court sets the standards that allother courts in the country must follow.
On January 9, 2004, the Supreme Court of Canadaannounced its decision in the case of Canadian
Foundation for Children, Youth and the Law v.Canada (Attorney General). The Court was not
deciding on whether corporal punishment isgood or bad. They were deciding whetherSection 43 of the Criminal Code violatesSection 7 of the Canadian Charter ofRights and Freedoms. This section dealswith security of the person. The Courtdecided that it did not violate theCharter. However, to ensure the best
interests of the child, the Supreme Courtruling set boundaries on the use of force to
discipline children.
What ‘boundaries’ did the Supreme Court setfor physically disciplining children?The Supreme Court of Canada stated that:
• The force used must be intended to educate or correctthe child;
• The force used must be to restrain, control or expressdisapproval of the actual behaviour;
• The child must be capable of benefiting from thediscipline. In other words, factors such a child’s age anddisability will influence the child’s ability to learn fromthe use of force;
• The force used must be “reasonable under thecircumstances” and not offend society’s view of decency.
What is considered reasonable force?Since ‘reasonable under the circumstances’ is a broad
term, the Supreme Court created adefinition in relation to child discipline.The Court interpreted reasonable forceas “minor corrective force” which isshort-lived and not harmful. The Courtalso set limits on what would beconsidered reasonable force. This
means that Courts have an objective testto apply when deciding whether the use of
force is reasonable. As well, expert advice and socialconsensus on the reasonable use of corporal punishmentreduces the risk that courts will make arbitrary orsubjective decisions.
What limits did the Court set onreasonable force?The Court found that the following is not reasonable:
• Hitting a child under two years of age. It is wrong andharmful because spanking has no value with very youngchildren and can destroy a child's sense of security andself-esteem. Children under two do not have thecognitive ability to understand why someone is spankingthem.
• Corporal punishment of teenagers. It is not helpful andis potentially harmful to use force on teenagers becauseit achieves only short-term obedience and may alienatethe youth and promote aggressive or other anti-socialbehaviour.
• Using objects to discipline a child suchas belts, rulers, etc. This ispotentially harmful bothphysically and emotionally.• Slaps or blows to the head.• Degrading or inhumane
treatment.• Corporal punishment
which causes injury –(causing harm is childabuse).
In referring to teachers, the Court said that:
• “Teachers may reasonably apply force to remove a childfrom a classroom or secure compliance withinstructions, but not merely as corporal punishment.Coupled with the requirement that the conduct becorrective, which rules out conduct stemming from thecaregiver’s frustration, loss of temper or abusivepersonality.”
Can I get more information about this issue?This pamphlet is intended to provide general
information. Persons wanting to knowmore about corporal punishment maywish to look at What’s Wrong withSpanking–Positive Parenting Tip Sheet(http://www.phac-aspc.gc.ca/dca-
dea/publications/spanking_e.html),published by Health Canada, 2004. This
short pamphlet gives some tips on how toeffectively discipline children without spanking.As well, you may wish to read the case. A copy of thisjudgment, Canadian Foundation for Children, Youth andthe Law v. Canada (Attorney General), is available onlineat: http://scc.lexum.umontreal.ca/en/2004/2004scc4/2004scc4.html
Public Legal Education and Information Service of New Brunswick(PLEIS-NB) is a non-profit organization. Its goal is to provide NewBrunswickers with information on the law. PLEIS-NB receivesfunding and in-kind support from the federal Department ofJustice, the New Brunswick Law Foundation and the NewBrunswick Department of Justice and Consumer Affairs.
February
2007
ISBN
:978
-1-553
69-936
-5
Spanking andDiscipliningChildren
What You ShouldKnow AboutSection 43 of theCriminal Code
Every schoolteacher, parentor person standing in the place ofa parent is justified in using forceby way of correction toward a pupilor child, as the case may be, whois under his care, if the force doesnot exceed what is reasonableunder the circumstances.
Criminal Code of Canada
Section 43
P.O.Box 6000Fredericton,NB E3B 5H1Telephone: (506) 453-5369Fax: (506) 462-5193Email: [email protected]
Public Legal Educationand Information Serviceof New Brunswick
Public Legal Educationand Information Serviceof New Brunswick
