The Ontario Court of Appeal has upheld the constitutionality and validity of section 43 of the Criminal Code in permiting parents and teachers to use reasonable force for corrective discipline. Section 43 provides that:
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 Canadian Foundation for Children, Youth and the Law had challenged this provision under section 7 of the Charter of Rights and Freedoms protection of life, liberty and security of the person. The appeal was defended by the Attorney General of Canada, the Canadian Teachers’ Federation and the Coalition for Family Autonomy.
The judgment of Goudge, J.A. speaking for all three judges states:
As I have said, s. 43 implicates the child’s security of the person interest. The section permits limited physical punishment of the child by a limited class of people without the punishment being a criminal assault. The section does not approve or encourage such punishment. It carefully defines the limits that must be observed if those actions are to escape criminal sanction. Those limits are found in the language of the section as informed by the kind of expert evidence presented in this case rather than in the reported facts of particular cases which may be incomplete or worse, wrongly decided. For exemption from the criminal law this section requires that the force be applied to the child by a parent, surrogate parent or teacher. The force must be reasonable in the circumstances which will inevitably include consideration of the age and character of the child, the circumstances of the punishment, its gravity, the misconduct of the child giving rise to it, the likely effect of the punishment on the child and whether the child suffered any injuries. Finally, the person applying the force must intend it for “correction” and the child being “corrected” must be capable of learning from the correction. Hence s. 43 infringes the child’s security of the person only to the extent of decriminalizing the limited application of force to the child in circumstances where the risk of physical harm is modest.
On the other hand, the state interest is to avoid the harm to family life that could come with the criminalizing of this conduct. Those insulated from the criminal law by s. 43 – parents, surrogate parents and teachers – must be in close and constant contact with children to fulfil their important responsibilities to those children. As McCombs J. found, the experts agree that extending criminal sanctions so as to prosecute non-abusive physical punishment would have a negative impact upon families and hinder parental and teacher efforts to nurture children. This state interest exists in a context where the state is also vigorously pursuing educational programs to discourage and if possible eradicate physical punishment of children and where there is significant non-criminal child protection legislation designed to prevent child abuse.
(click here for full text of the judgment)