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Supreme Court upholds spanking
January 31, 2004
Parents can continue to hit their children in Canada for discipline, the Supreme Court of Canada has ruled. But hitting, the court said, is acceptable only against children aged 2 to 12.
While it upheld the so-called corporal punishment defence by a majority of 7-2, the court attempted to narrow the limits of use of force by parents against children. The court banned the use objects such as belts and rulers for punishment. Also impermissible are blows or slaps to the head. The court did not expressly outlaw multiple hits below the neck.
Teachers, the court held, can no longer beat kids as punishment. But they can forcibly remove a disruptive child from class or restrain pupils to get them to comply with instructions.
The spanking defence will apply only in cases of "sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolic disapproval of his or her behaviour. Degrading, inhuman or harmful conduct is not protected," said Chief Justice Beverly McLachlin, writing for the majority.
The court said that were it to totally prohibit use of force against kids, teachers could be hauled off to jail and parents forced into the criminal justice system which would disrupt families.
Citing expert evidence, the court said corporal punishment harms children under 2 who don't learn from it, and teenagers because "it can induce aggressive or antisocial behaviour."
McLachlin, along with justices Charles Gonthier, Frank Iacobucci, John Major, Michel Bastarache, and Louis LeBel said the protection of law may be invoked only in "the mildest forms of assault."
They found it does not infringe on the rights of children, is not too vague, and properly kept families and educators out of the criminal courts in minor cases, while protecting children from abusive treatment.
To criminalize minor "corrective" behaviour by adults that does not harm a child "would harm children more than help them," the court wrote.
"The decision not to criminalize such conduct is not grounded in devaluation of the child, but in a concern that to do so risks ruining lives and breaking up families — a burden that in large part would be borne by children and outweigh any benefit," McLachlin said.
Justice Ian Binnie dissented in part, saying he would not have extended any defence to teachers who use force. Binnie said while order in the schools may be a legitimate objective, it doesn't justify "immunity for the criminal assault of children."
In dissent, Justice Arbour said the problem is lower courts have never consistently determined when discipline crosses the line into abuse or assault, resulting in an unconstitutionally vague law that should be re-written by Parliament, not the court.
Justice Marie Deschamps agreed and went further, saying the law also infringes a child's equality rights to the equal protection of the law.
It "perpetuates the notion of children as property rather than human beings and sends the message that their bodily integrity and physical security is to be sacrificed to the will of their parents, however misguided," she wrote.
The corporal punishment defence, enshrined in Section 43 of the Criminal Code, was challenged by the non-profit Canadian Foundation for Children, Youth and the Law.
The challenge was supported by the Ontario Association of Children's Aid Societies. Arguing to keep Section 43 was the federal government, backed by the Canadian Teachers' Federation and the Coalition for Family Autonomy.
Section 43, part of the Criminal Code since 1892, states:
"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 foundation had argued that by requiring that the force applied be "reasonable in the circumstances" and be "by way of correction" Section 43 employs an impermissibly vague standard.
Learn more about the corporal punishment defence.
Disclaimer: The material on this site is not intended as legal advice. It merely conveys general information on legal issues commonly encountered by persons facing criminal charges in Canada. If you are charged with an offence, you should contact a criminal lawyer.
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