Corporal punishment of children - spanking
A Canadian lawsuit: The Canadian
Children, Youth and the Law v.
The Attorney General of Canada.
Canadian parents are allowed to use mild corporal punishment during the
disciplining of their children. The dividing line between allowable violence and
criminal abuse is defined in Section 43 of the Criminal Code. This law applies
CORRECTION OF CHILD BY FORCE:
43. "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."
[R.S. c.C-34, s.43.]
One problem with this law is the rather vague phrase: "...what is
reasonable under the circumstances." Some groups have attempted to have
Section 43 repealed. One lawsuit, launched by The Canadian Foundation for
Children, Youth and the Law was considered by the Supreme Court of Canada.
They found that Section 43 is constitutional. However, the court did define
reasonably specific limits on the allowable levels of violence that parents can
Lawsuit before the Ontario Superior Court of Justice:
On 2000-JUL-05, the Ontario Superior Court of Justice issued a ruling
in the case: "The Canadian
Foundation for Children, Youth and the Law v. The Attorney General of Canada."
- The Foundation attempted to have Section 43 of the Criminal Code
They argued that corporal punishment violates children's rights to
security of the person, and equality. Also, they argued that corporal punishment
is cruel and unusual punishment. The Ontario
Association of Children's Aid Societies supported the Foundation's position.
- The Attorney General argued that Section 43
reflects a fair balance among the interests of children, their parents and
Canadian society; the federal government does not condone either the physical
discipline of children nor the criminalization of parents for disciplining their
children through the use of reasonable corporal punishment.
The federal government had the support of the Canadian Teachers' Federation and
the Coalition for Family Autonomy. The latter is composed of a number of conservative
social and religious groups: Focus on the Family, Canada; the
Canadian Family Action Coalition; the Home School Legal Defence
Association of Canada; and REAL Women of Canada).
The court found that the use of "reasonable"
force to discipline children was constitutional. According to the federal Department of
Justice, the test of reasonableness: "...involves an examination of a variety
of factors including the age and character of the child, the nature of the
child©s behaviour calling for correction, the degree and gravity of the
punishment, and the circumstances under which the force was applied. These
factors are assessed against the contemporary Canadian community©s standard of
reasonableness and not against the rules or practices of an individual family.
The court provided additional guidelines, based on expert evidence led in the
case, to aid in interpreting and applying section 43 in accordance with the
Charter. These guidelines relate to the corporal punishment of very young
children and teenagers, the use of objects in corporal punishment, injury, and
effective alternatives to corporal punishment, among others." The
"charter" referred to is the Canadian Charter of Rights and Freedoms,
They also determined that Section 43
does not apply where the use of force "is part of a genuine
effort to educate the child, poses no reasonable risk of harm that is more than
transitory and trifling, and is reasonable under the circumstances." For
example, force can be used to remove a child from a dangerous situation, or to
separate two children who are fighting. 1
Appeal to the Ontario Court of Appeal:
2002-JAN-15: In its case #29113, the Ontario Court of Appeal upheld a lower
court ruling which found that Section 43 of the Criminal Code of Canada is
constitutional. The Government argued that allowing limited corporal
punishment does not harm children, and that it "balances the societal
interest in sustaining the family unit with the charter rights of the
Appeal to the Supreme Court of Canada:
The Supreme Court of Canada heard the appeal on 2003-JUN-06. It was their case #2004 SCC
The court noted that:
"The application was not based
upon any factual circumstance but was heard with special permission of the court
because it raised a serious legal question and there was no other reasonable or
effective way for the issue to be raised. No witnesses testified, however
volumes of affidavit evidence by experts and cross-examination transcripts were
"The Appellant argued, inter alia, that...[Section] 43 sanctions assault against society's
most vulnerable members even though the weight of evidence is that physical
punishment does not benefit children and may be harmful. It teaches children
that physical aggression is an appropriate response to frustration. The
Appellant contends that the use of the word "justified" in...[Section] 43 sends a message
that the law regards corporal punishment as rightful behaviour and undermines
efforts to educate against the use of punitive force."
"The Respondent argued that while there have been cases in which judges have used...[Section] 43 to acquit people of causing serious harm to children, those cases
reflected values of an earlier time, or were wrongly decided. The Respondent
submitted that...[Section] 43 excuses parents and teachers from only a narrow range of
mild to moderate corrective force, which normative or customary forms of
physical punishment are acknowledged by most experts not to be child abuse."
The Canadian Foundation for Children, Youth and the Law's had argued their belief that Section 43:
- Violates section 7 of the Canadian Charter of Rights and Freedoms
because it fails to give procedural protections to children, does not further
the best interests of the child, and is both overbroad and vague;
- Violates section 12 of the Charter because it constitutes cruel and
unusual punishment or treatment.
- Violates section 15(1) of the Charter because it denies children the
legal protection against assaults that is accorded to adults.
The Supreme Court handed down their decision on 2004-JAN-30.
4 The court upheld the ruling of the lower court. They found that Section 43
was constitutional. It does not infringe on the rights of children as they are
guaranteed by sections 7, 12 and 15(1) of the Canadian Charter of Rights and
The court ruled that Section 43 "is not unduly vague or
overbroad; it sets real boundaries and delineates a risk zone for criminal
sanction and avoids discretionary law enforcement. The force must have been
intended to be for educative or corrective purposes, relating to restraining,
controlling or expressing disapproval of the actual behaviour of a child capable
of benefiting from the correction. While the words 'reasonable under the
circumstances' on their face are broad, implicit limitations add precision.
Section 43 does not extend to an application of force that results in harm or
the prospect of harm. Determining what is 'reasonable under the circumstances'
in the case of child discipline is assisted by Canada's international treaty
obligations, the circumstances in which the discipline occurs, social consensus,
expert evidence and judicial interpretation. When these considerations are taken
together, a solid core of meaning emerges for 'reasonable under the
circumstances', sufficient to establish a zone in which discipline risks
criminal sanction." 4
The court cited a statement by the Law Reform Commission of Canada
which pointed out that repealing Section 43 or declaring it unconstitutional "could
have unfortunate consequences, consequences worse than those ensuing from
retention of the section. [It would] expose the family to the incursion of
state law enforcement for every trivial slap or spanking. [I]s this the sort of
society in which we would want to live?"
Defining what is "reasonable" force:
The Supreme Court ruled that the immunity provided to parents by Section 43 is limited. There are
many situations where punishment becomes a criminal act:
- Who can inflict punishment:
- "The phrase 'person standing in the place of a parent' has been held by
the courts to indicate an individual who has assumed 'all the obligations of
- Corporal punishment is forbidden In schools, both private and public. The
court ruling stated: "The logic for keeping criminal sanctions out of the schools
is much less compelling than for keeping them out of the home." The
Supreme Court has altered legislation by in effect, removing the word "schoolteacher"
from Section 43. However,
teachers can use force to remove or restrain a child in appropriate
- Reasons for the punishment: The parent must intend the punishment to
be for "...educative or corrective purposes..." only.
- Age limits for punishment:
- The child must be capable of benefiting from the correction. Thus, corporal
punishment of children under the age of two is not permitted. A parent who
advice of James Dobson -- child psychologist and founder of the
fundamentalist organization Focus on the Family -- to use corporal punishment on an infant at the
age of 18 months would be committing a criminal act.
- "Corporal punishment of teenagers is harmful, because it can induce
aggressive or antisocial behaviour."
- Degree of punishment: It can result "...neither in harm nor in the
prospect of bodily harm. This limits its operation to the mildest forms of
- Forbidden forms of punishment:
- "Corporal punishment using objects, such as rulers or belts, is
physically and emotionally harmful."
- "Corporal punishment which involves slaps or blows to the head is harmful."
- "Degrading, inhuman or harmful conduct is not protected."
- Other considerations: "A child may also be incapable of learning
from the application of force because of disability or some other contextual
factor." Thus, punishment of a developmentally delayed child may be
The incidence of corporal punishment by parents is decreasing throughout
North America. This trend is
expected to accelerate in the future as the public realizes
the serious negative effects that spanking has on children's
development and later mental health as adults.
The court's ruling in the case initiated by The Canadian Foundation for
Children, Youth and the Law referred to "harm or the prospect of harm"
on the part of the child. They seem to have concentrated on forbidding
punishment which causes actual physical injury at the time of the violence. The
court did not appear to consider the long-term affects of spanking which has
been found in several mass studies. This includes the rise in addiction to
alcohol and other drugs, the increase in depression, anxiety and anti-social
behavior among adults who were spanked as children. Some group may well launch a
future lawsuit that is based on the long-term harm caused by corporal
Books advocating criminal behavior:
The Repeal 43 Committee noted in mid-2005 that James Dobson, Founder and
President of Focus on the Family had published an updated version of his 1978
parenting book "New Strong-Willed Child."
6 They wrote:
"Beginning with his same story about beating the family dog into
submission with a belt ('The only way to make [him] obey was to threaten him
with destruction'), he believes this highly relevant to raising children,
because just as a dog will challenge authority, so will a little child 'only
"His first rule in childrearing is to teach respect for authority. As he
writes in a 1992 book, this will be the cornerstone for the child©s respect
for other authority figures later in life. To instill this respect, spanking
can begin at 15 months with a 'neutral object' such as a switch or paddle,
rather than the hand, which is 'an object of love'."
"This advice violates Canadian law as interpreted by the
2004 Supreme Court decision and should be dealt with as any other writing
that counsels a violation of our Criminal Code."
It is worthwhile noting that the Amazon.com web site contained 59 reviews of
this book by individuals who had purchased it. Their average rating was 2 stars
out of 5 -- a very low value. One reviewer recommend a different book "Christian
Parenting & Child Care by Sears & Sears."
8 When she abandoned Dr. Dobson's
philosophy both as a teacher and parent, she noted a significant improvement in her
students' and children's behavior.
A personal note:
When writing essays on this web site, I try to just "tell it like it is"
without allowing my personal beliefs to intrude. I would like to make an
exception here, because I feel that the adverse consequences of spanking
children appear to be very serious. I strongly recommend that parents find
alternative methods to discipline children. Please read my comment on
the spanking menu.
- "FACT SHEET: Section 43 of the Criminal Code (Corporal Punishment),"
Department of Justice, Canada, 2004-JAN-30, at:
- "Supreme Court of Canada - Agenda," 2003-MAY-26, at:
- " 1 S.C.R.," Supreme Court of Canada, 2004-JAN-30, at:
- "Supreme Court of Canada -- Judgment in Appeal," 2004-JAN-30, at:
- "Working Paper 38, Assault," Law Reform Commission of Canada, (1984),
- James Dobson, "The New Strong-Willed Child: Birth Through Adolescence,"
Tyndale House, (2004). Read
reviews or order this book safely from Amazon.com online book store
- "2005 James Dobson: new book - same bad message," Repeal 43
Committee, 2005-JUN, at:
- William Sears, "Christian Parenting and Child Care," Thomas
Nelson, (1095). Although it is
out of print, used copies were available for under $3.00 plus shipping on 2005-SEP-08 at
Amazon.com online book store
Copyright © 2005 to 2007 by Ontario Consultants on Religious
Originally written: 2005-APR-17
Latest update: 2007-JUN-27
Author: B.A. Robinson