Understanding Canadian Criminal Law

RSS Feed

Memberships and Affiliations

The Advocates Society Innocence Canada Criminal Lawyers Association Ontario Bar Association Toronto Lawyers Association Criminal Law specialist

Corporal Punishment in Canada – to spank or not to spank?

corporal punishmentThis article attempts to clarify to what extent parents or teachers can physically discipline children under their care.

Section 43 of the Criminal Code of Canada, enacted in 1892, provides parents, teachers and caregivers — including babysitters and foster parents — a defence to an assault allegation when they use corporal punishment as “reasonable force” to discipline children.

Section 43 contemplates four elements which must be present if the disciplining is to be justified:

(a) a certain relation between the discipliner and the child;

(b) the force used must be used for the purpose of correction;

(c) the child must be under the care of the discipliner when the force is used; and

(d) the force must not “exceed what is reasonable under the circumstances”

The Supreme Court of Canada upheld the century-old law in 2004 when it was asked to rule on whether spanking constitutes “reasonable force” for disciplining children, or whether it is a form of assault. Click here to read the full judgment of that ruling.

Below is a summary of the limits placed on parents and teachers utilizing corporal punishment as a form of corrective discipline towards a child:

Are all types of corrective force protected by section 43?

Section 43 applies only to minor corrective force of a transitory and trifling nature. Should the force applied cause visible injuries such as cuts or bruising, the discipline would fall outside of what is considered permissible under the section.

Who is considered a “child” under the section?

Section 43 does not apply to the corporal punishment of children under the age of two or to teenagers. Applying corporal punishment to children outside the appropriate age range will be considered an assault under Canadian criminal law.

Can the form of corporal punishment utilize non-traditional methods?

Section 43 does not apply to degrading, inhumane, or harmful conduct. Any form of punishment that meets this definition will not be protected by the legislation.

Can corporal punishment be implemented using objects such as a belt?

Discipline by using objects such as belts, canes, or slippers is not acceptable. Only smacks using an open hand will meet the definition of corporal punishment permitted by section 43. Punches or kicks are also not appropriate forms of discipline. Additionally, any type of intentional force applied above the shoulders (including open-handed slaps) is also considered unreasonable.

Can a teacher administer the same type of corporal punishment a parent can?

Teachers may not discipline children by using corporal punishment but they may reasonably apply force to remove a child from the classroom or to secure compliance.

What if the parent hits the child out of frustration or anger? Can that fit under the protection of section 43?

As the conduct must be corrective, the section does not apply to a parent or caregiver’s conduct which emerges from frustration, loss of temper or abusive personality. Such triggers will fall outside of the protections of section 43 and be deemed an assault in law.

While some limited forms of corporal punishment are still available to parents and teachers, the circumstances under which they can be applied as a means of corrective discipline are significantly limited. Conduct that goes beyond the boundaries set out by the Supreme Court of Canada will likely be vigorously prosecuted.

Leave a Reply