Repealing the ‘spanking’ law is not the no-brainer it may seem
As it stands, section 43 of the Criminal Code allows parents and schoolteachers to employ reasonable force, “by way of correction toward a pupil or child”. The ‘spanking law’ provides a reasonable force defence to parents, teachers, or caregivers accused of assault. Included in the Code in 1892, section 43 has resisted multiple Senate, legislative, and Supreme Court challenges, and appears to be embedded in the fabric of Canada’s child-rearing policy. However, the Trudeau government is committed to seeing its undoing – pledging to enact all 94 of the Truth and Reconciliation Commission’s recommendations, which include the repeal of s. 43. Following through on this commitment will require that Attorney General and Minister of Justice, Jody Wilson-Raybould tread carefully.
The benefits of a repeal are compelling – sending a clear message against violence perpetrated on children, establishing legal consistency nation-wide (legislation currently differs from province to province), and presenting a symbolic break from Canada’s Residential School past. Many anti-spanking advocates argue that as well as presenting a risk of injury, even ‘light’ spanking in the home normalizes violence as a dispute-resolution or disciplinary measure and can have negative social repercussions on children as they grow older. They argue that state-sanctioned spanking has no place in the country’s homes and violates a child’s Charter rights.
Previous governments, as well as numerous provincial courts, including the Supreme Court of Canada (SCC) disagree. In Canadian Foundation for Children, Youth and the Law v. Canada (AG), 2004, the SCC upheld s. 43, while laying out the boundaries within which physical force against children would be accepted. ‘Reasonable force’ under s. 43 must be sober, reasoned, used only to restrain, control, or express symbolic disapproval, and children must have the capacity to understand and benefit from the discipline. Further, it can only be applied to children between the ages of 2-12 years, and be absent of the use of any objects or application of force to the head. Teachers have no recourse to corporal punishment, but can use force to remove a child from a classroom or to ensure compliance with other instructions.
Following through on this commitment will require that Attorney General and Minister of Justice, Jody Wilson-Raybould tread carefully.
The SCC concluded that these restrictions afforded children proper protection while still respecting parents’ ability to raise their children as they see fit, free from overbearing state interference. Protecting, and not criminalizing the role parents play in disciplining and raising their children remained a valid objective in a free and democratic society.
It is on this issue that the Liberal government, while carrying the weight of a large majority, will need to proceed diplomatically. While all agree that children should be free from physical abuse, detractors from a repeal of s. 43 question the extent to which the government should be using criminal law to promote its version of ‘proper parenting’. Deferring to parents regarding best parenting practices was the official position of previous Attorney General Rob Nicholson and was one bolstered by public opinion.
For parents within certain religious circles, s. 43 affirms their ability to raise their children in accordance with their traditional teachings. For teachers, s. 43 allows them to intervene if a student is harming themselves, a teacher, or another student.
While such action would be criminalized without s. 43, many suggest the practical ramifications will be minor. The legal system, in theory, will rely on prosecutorial discretion not to charge parents for trivial matters. Alternatively, defendants will have recourse to common law defences (namely the ‘de minimis’ defence) to escape conviction – providing many of the same practical protections as are enshrined in s. 43.
In fulfilling its commitment to repeal s. 43, the Trudeau government must also craft a strategy to manage the fallout — lest it leave some well-meaning parents and teachers in the lurch.
Alexander Steele (2L) is a Staff Writer for Juris Diction.