The Ontario Superior Court has confirmed the right of teachers and parents to use reasonable force for corrective discipline of children. The court recently ruled that s. 43 of the Criminal Code does not breach various provisions in the Charter of Rights and Freedoms. Section 43 provides a defence to a criminal charge of assault for certain persons, including teachers, and provides:
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 in the circumstances.
The case of Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), July 6, 2000, arose by way of an application to the Ontario Superior Court of Justice for a declaration that s. 43 of the Criminal Code was unconstitutional and should be declared to have no force and effect. The AG of Canada opposed the application. The Canadian Federation of Teachers was one of the parties supporting the AG of Canada in opposing the application.
Corporal Punishment Considered by Experts
The parties filed dozens of volumes of affidavits from experts regarding corporal punishment during the five day hearing. For example, expert evidence was tendered from child protection workers, and legal experts in children’s rights and international human rights. Evidence from these experts provided insight to the Court regarding issues relating to child-rearing, child behaviour and development, and the effects of corporal punishment, including spanking, on children. The Court noted that in at least ten areas, all the experts were in agreement. For example, it was agreed that:
- corporal punishment of very young children is wrong and harmful
- corporal punishment of teenagers is not helpful and potentially harmful
- corporal punishment using objects such as belts, rulers, etc. should not be tolerated
- corporal punishment should never involve a blow or slap to the head
- corporal punishment which causes injuries is child abuse
- corporal punishment is not the most effective method of child discipline (methods such as time out rooms, withdrawal of privileges, etc. are more effective)
- the only benefit of spanking is short-term compliance
- time-out is an effective alternative to spanking
- spanking is not child abuse
- only abusive physical punishment should be criminalized.
The Positions Advanced by the Parties
The Children’s Foundation argued that s. 43 should be struck down as it sanctions the assault of children, society’s most vulnerable members, even though the weight of the evidence is that physical punishment does not benefit children and may well be harmful. Moreover, the Children’s Foundation submitted, corporal punishment teaches children that physical aggression is an appropriate response to frustration.
The AG of Canada argued that properly interpreted s. 43 excuses parents and teachers from only a narrow range of mild to moderate corrective force. These forms of punishment were characterized as “normative or customary forms of physical punishment.” The Canadian Teachers’ Federation agreed with this position, and further argued that removal of s. 43 from the Criminal code would detrimentally affect the work of teachers. Emphasizing that it does not support the use of corporal punishment by teachers, the Teachers’ Federation submitted that “teachers must be free to restrain children when necessary. Such restraint authority is needed to facilitate effective teaching and to maintain orderly classrooms.” The Federation further contended that “teachers must have the authority to restrain an unruly or aggressive student, and to remove such a student from the classroom.” According to the Federation, striking down s. 43 would have a “chilling and detrimental effect on the ability of teachers to perform their jobs.”
The Court’s Decision
The Court refused to strike down s. 43 of the Criminal Code. According to Mr. Justice McCombs, Parliament’s purpose in maintaining s. 43 is “to recognize that parents and teachers require reasonable latitude in carrying out the responsibility imposed by law to provide for their children, to nurture them, and to educate them. That responsibility…cannot be carried out unless parents and teachers have a protected sphere of authority within which to fulfill their responsibilities. That sphere of authority is intended to allow a defence to assault within a limited domain of physical discipline, while at the same time ensuring that children are protected from child abuse.”
The Court also was careful to note, however, that it would not be correct to say that s. 43 “sends the message that hitting children is acceptable.” According to Mr. Justice McCombs, the strategy adopted by Parliament in enacting s. 43 “recognizes the complexity of dealing with the family [and] the difficulties of raising children.” Notwithstanding the Court’s conclusion that s. 43 was constitutional, the Court also stated that its decision was not intended to be taken as a wholehearted endorsement of the provisions of s. 43 of the Criminal Code. The Court noted that the evidence had demonstrated that public attitudes toward corporal punishment of children are changing, and that even mild forms of corporal punishment may do more harm than good. The Court commented that the time may have come for Parliament to give careful consideration to amending s. 43 and to provide specific criteria to guide parents and teachers in this matter.