May 2009 - Our Voice in Action

Changing the child punishment law: Is Bill S-209 a backward step?

by Anne McGillivray, Joan Durrant, and Ron Ensom 1

Canada permits the assault of children for correction. Codified in Canada's first Criminal Code in 1892, section 43 reflects a belief going back to Roman law that children cannot learn without physical (corporal) punishment.

Senate Bill S-209 calls for the amendment of section 43. The Bill would permit the use of force (assault) where a child's conduct threatens harm, is criminal in nature, or is “excessively offensive or disruptive” but not merely as physical punishment. Is Bill S-209 a step in the “rights” direction, or are we still clinging to an archaic law?

The law now

Section 43 gives a parent or teacher a legal defence to a charge of assault if the court considers the force used to be corrective and reasonable:

43. (1) 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., 1985, C-46.

The Canadian Foundation for Children, Youth and the Law challenged the law, arguing that it denies children’s equality and protection rights under the Charter of Rights and Freedoms and the Convention on the Rights of the Child. In a split decision in 2004, the Supreme Court of Canada upheld the constitutionality of section 43 by narrowing the circumstances in which it applies.

Assaulting a child for the purpose of correction is justified, the Court said, if done by a parent to a child between 2 and 12 years who is capable of learning from the assault. It must be “minor corrective force of a transitory and trifling nature.” It must not involve “the use of objects or blows or slaps to the head.” It must not be degrading, inhumane, or harmful or result from “frustration, loss of temper or abusive personality.” The courts are not to consider the gravity of the child's behaviour in deciding if the force used was reasonable. Teachers can only use force to restrain a child.

Without section 43, the Court said, the law on assault would apply to parents who placed a resisting child in a car seat. Prosecuting a parent would cause a child greater harm than assaulting the child.

What's the problem?

The Charter applies equally to children. Laws which discriminate negatively on the basis of age, or threaten the security of the person without due process of law, or allow unusual punishment, offend the Charter and can be struck down by the courts. Section 43 denies children these basic human rights.

Canada ratified the Convention on the Rights of the Child in 1991 and agreed to respect the advice of the Convention Committee. The Committee told Canada in 2003 that the Convention prohibits all violence, including light violence. The Supreme Court decision permits light violence. Three of nine Supreme Court justices agreed that section 43 denies the rights of children.

Human rights organizations, professionals, and academics also agree. The Joint Statement on Physical Punishment of Children and Youth recommends that “Children in Canada must be given the same protection from physical assault as that given to Canadian adults and to children in a growing number of countries.” The Joint Statement has been endorsed to date by 345 organizations from every sector and by distinguished Canadians concerned about children. Twenty-four countries have now repealed their defence to corrective assault and prohibit all physical punishment of children.

A large and consistent body of research shows that physical punishment is a significant risk factor in children's development and over their lifespan (Gershoff, 2002). It increases the likelihood of physical injury, impaired mental health, poor parent-child relationships, bullying and aggression, and antisocial behaviour. It is associated with violence toward partners and abuse of children in adulthood. Three-fourths of substantiated physical abuse cases arise from physical punishment (Canadian Incidence Study, 2005; Durrant et al, 2009).

The Supreme Court did not discuss research evidence, nor did it cite the Convention Committee's prohibition of all violence. The Court changed the rules without legal basis, restructured the law of punishment as a child protection law, and left children exposed to assault. The wording of section 43 is unchanged.

Will Bill S-209 fix the section 43 problem?

Bill S-209 originally called for the full repeal of section 43. The Senate Standing Committee on Legal and Constitutional Affairs amended the Bill. It now says:

Section 43 of the Criminal Code is repealed and replaced by the following:

Control of Child

43. (1) Every schoolteacher, parent or person standing in the place of a parent is justified in using reasonable force other than corporal punishment toward a child who is under their care if the force is used only for the purpose of

(a) preventing or minimizing harm to the child or another person;

(b) preventing the child from engaging or continuing to engage in conduct that is of a criminal nature; or

(c) preventing the child from engaging or continuing to engage in excessively offensive or disruptive behaviour.

(2) In subsection (1), “reasonable force” means an application of force that is transitory and minimal in the circumstances.

The Bill would allow parents and teachers to assault children for “conduct that is of a criminal nature” and for “excessively offensive or disruptive behaviour”. The Bill returns the defence to teachers, leaves out the limits set by the Supreme Court, and retains the essence of section 43. Bill S-209 does not fix the problem.

Without section 43, is there any defence for parents?

The parent-child relationship is a fiduciary relationship based on trust, duty, and loyalty. Parents enjoy a privileged sphere of physical contact with children to ensure their care, nurture, and education. Actions like placing a child in a car seat are protected by this privilege.

As the child’s fiduciary, the parent may not harm the child. A parent who assaults a child should be prepared to defend it on grounds available to any Canadian charged with assault.

Necessary restraint is well accepted in law and policy. It is a residual power of any person in a relationship of care and it is available to anyone in necessitous circumstances. Also available to a parent or teacher, as to any other person, are the general defences set out in the assault provisions of the Criminal Code . These include self-defence, defence of another person, and defence of property.

Given the wide discretion that exists in the criminal justice system, these defences offer sufficient protection for those who must resort to assault or restraint to protect themselves or others.

The bottom line

The Criminal Code no longer permits the corrective assault of apprentices, convicted offenders, inmates, persons on board ship, and animals. The corrective assault of wives has been illegal for well over a century. Children are the only sentient beings in Canada who can be assaulted at will.

The Criminal Code offers defences where assault is necessary for protection. Assault for correction is unnecessary and potentially harmful. Bill S-209 permits the corrective assault of children. It will not protect their bodies or their rights.

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References cited in article


1 Anne McGillivray, Professor of Law, University of Manitoba; Joan Durrant, Ph.D., Department of Family Social Sciences, University of Manitoba; Ron Ensom, M.S.W., RSW, Ensom & Associates; Children’s Hospital of Eastern Ontario;