Blog
Céline Dostaler
The contested right to spank your child
There is yet another bill being put forward to change the law that allows parents, guardians and teachers to spank a child. Even if that succeeds, I don’t think it will achieve its goal of stopping force from being used against children.
As a news report notes, Senator Stan Kutcher recently introduced a bill in the Senate to repeal s. 43 of the Criminal Code. The Senate voted to send bill S-251 to the Senate Committee on Legal and Constitutional Affairs.
That section reads: “Every school teacher, 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.”
Section 43 has been amended 21 times. According to the story, the law giving certain people the right to use corrective force on others was first drafted in 1892, “though it no longer includes ‘masters and apprentices’ among the relations covered by the defence. It also no longer allows husbands to use reasonable force to ‘correct’ a wife.”
Reasonable force is ‘transitory’
In 2004, the Supreme Court of Canada (SCC) upheld that law but clarified that “reasonable” force is something that’s “transitory and trifling in nature,” that may only be used against children between ages two and 12.
“Degrading, inhuman or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the head is unreasonable,” the court ruled.
According to the news report, there have been 18 legislative attempts over the years to have s. 43 scrapped. And now there is another.
There are narrow exceptions
To make my position clear, it is not okay to hit a child or to use blunt force or an object on them. But at the same time, there can be narrow exceptions.
Let’s say a toddler is reaching their hand toward a hot stove. If a parent slaps their hand away, that could be considered assault. After all, you are using force on someone without their permission and children under 12 cannot give consent. But you have saved them from a serious burn, and maybe your physical actions will teach them not to do that again.
As a general principle of law, the de minimis defence (a common law defence based on the idea that charges should not be laid if the offence is minimal) would likely preclude police from acting in that situation.
In a perfect world, s. 43 as it now stands would only be used as a defence in cases where it could be shown that the force was applied in a trifling manner and not delivered in anger. That means that if a parent slaps or punches a 10-year-old for talking back to them, they will have no protection under the Code. As the SCC has stated, the punishment has to be reasonable in the circumstances and minimal.
Most parents do not use corporal punishment
That is why removing s. 43 from the Code will not achieve very much. Most parents do not use physical force against their children, for good reason.
As Sen. Kutcher’s bill notes, “There is no medical or scientific reason to support CP [corporal punishment] as a child-rearing tool,” adding that spanking “legitimizes physical aggression against youth.
“In fact, there is some irony in discipline attempts that try to reduce externalized behaviour – such as aggression – by using spanking.”
The calls to ban corporal punishment are coming from many corners. In 2015, Prime Minister Justin Trudeau pledged to implement the 94 recommendations made by the Truth and Reconciliation Commission, one of which was to abolish s. 43.
“Corporal punishment, as a way of correction, was introduced to Indigenous Society in Canada en masse through the use of Residential Schools and Federal Indian Day Schools,” the Native Women’s Association of Canada notes.
‘Same harms as physical abuse’
And at least 65 countries have abolished all physical punishment of children. A meta-analysis published in 2018 from the National Library of Medicine reviewed five decades of research. It concluded that corporal punishment was “associated with increased aggressive and antisocial behaviour like bullying and was linked to the same harms as physical abuse.”
As the law now stands, you can only physically discipline a child if they are old enough to understand what actions they are being punished for. There needs to be cognitive knowledge on behalf of a child of what they did that resulted in this punishment.
That is not easy. If you punish a five-year-old for something they did wrong yesterday, they may not connect the two events. It has to be done immediately and not done with anger.
I agree with the editor-in-chief of the Canadian Medical Association Journal, quoted in the story. He notes that when parents cling to an ineffective method of child discipline when better approaches are available, that is “an anachronistic excuse for poor parenting.”
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As an experienced Ottawa criminal lawyer, I work with the Crown and the judge to ensure that my clients are given a fair sentence if they are found guilty of an offence. If you are facing charges, call me for a free consultation, in French or English.
