Should Canada Criminalize Spanking?

Written on Behalf of Affleck & Barrison LLP

Earlier last week, in response to recommendations of the Truth and Reconciliation Commission, the federal government announced it would repeal the so-called “Spanking Law” in Canada. This announcement sparked a significant amount of public debate about this highly divisive issue. But what exactly is the spanking law, and what are the arguments for and against it? Here is a brief overview:

The Law

Section 43 of the Criminal Code reads:

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.

This section, also known as the defence of reasonable correction, dates back to Canada’s first Criminal Code in 1892.

The Supreme Court Decision

In the 1990s, the constitutionality of s. 43 was challenged. The Supreme Court of Canada released its decision in 2004 in a case called Canadian Foundation for Children, Youth and the Law v Canada (Attorney General). Six out of nine justices found that the spanking laws did not violate the Charter of Rights and Freedoms. However, the Supreme Court ruled that physical force against children was only acceptable within certain tightly limited conditions: it cannot be used on children under the age of 2, or over the age of 12, it cannot involve the use of objects, the force must be corrective in nature, and “must be reasonable in the circumstances”.

The Arguments

Section 43 of the Criminal Code is controversial because it expressly offers parents and teachers a defence when they use reasonable force to discipline a child.

Those opposed to repealing the provision see it as an unwanted intrusion by the government into a parent’s right to decide what is best for their child. They argue that parents should be allowed to raise their children as they see fit, so long as their actions are within reason and do not constitute abuse. Some teachers fear that a repeal of s. 43 would leave teachers vulnerable to charges of assault in cases where they are required to use force – such as breaking up schoolyard fights or restraining a violent child.

Those in favour of repealing the law say that spanking is a form of child abuse and that it sends the mixed message that it may be acceptable to strike a child.

Despite the heated debate, at this point it is still unclear whether the Liberals will strike down the law or amend it, and when.

To learn more about this or any other criminal defence matter, please contact the lawyers at Affleck & Barrison online or at 905-404-1947.