Can you be Imprisoned for Beating your Child in Canada?

Have you ever been worried that a school teacher may hit your child to instill discipline? Would such a teacher be imprisoned for this outrageous act? In most western countries corporal punishment is illegal. Such a teacher would face dire legal consequences.  However, Canada might be the only developed nation which permits reasonable use of force against children by teachers, parents, and caregivers. Interestingly, Section 43 of the Canadian Criminal Code states that

“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”

Thus section 43 grants permission to school teachers, parents and/or guardians to use reasonable force against a child, in order to correct his/her behavior. The section can be widely interpreted to include caretakers, grandparents, and in some cases even baby sitters.

Section 43 was challenged in 2004 in the Supreme Court of Canada. The petitioners contended that the said section violates the rights enshrined in the Charter and therefore must be struck down. Rejecting the contention and recognizing the common law principle of parental autonomy, the SC upheld the validity of the section. However, it described certain situations which would never pass the reasonability test. Thus, one cannot inflict physical force that is –

1. against children who are below 2 years or specially-abled children of any age;
2. cruel, degrading or inhuman;
3. motivated by anger or frustration rather than corrective purposes;
4.  against adolescents,
5. involving objects like a belt, slaps or blows to the head

Section 43 clearly highlights the demarcation between the private space of citizens and the state domain. It is believed that the state must refrain from interfering in the private lives of its citizens. It is often argued that the parents or guardians must be allowed to impose reasonable restrictions or punishment on their wards to ensure discipline. Thus, subject to certain conditions, the law gives precedence to the authority of caregiver over the rights of the care receiver.

Nonetheless, it is extremely difficult to determine “corrective punishment” and “reasonableness”. In a leading case, a father had beaten and bruised his son to make him responsible. The trial court held that his behavior was unjustified and based on anger. However,  the Court of Appeal held that the father genuinely believed his act would rectify his son’s behavior. Thus, determining the intent of a parent would be highly dependent on the perception of the court and the cultural conditioning of the parent or caregiver. For instance, in a few countries, spanking is an acceptable form of punishment. An immigrant teacher may use strokes on his pupils to correct their behavior. Whether such a method of punishment is justified or not would be extremely difficult to determine.

Although it is contended that the reasonable physical force may correct the behavior of children, the theory is fundamentally flawed. A child who has been subjected to physical abuse may suffer from depression or anti-social traits. Such a child is denied dignity and respect which is granted to other individuals in the Canadian Charter. There are several other ways to teach righteousness to children. Everyone has the right to be protected against assault.  Children are the most vulnerable and the state must ensure their safety. In a multicultural society like Canada, it would be extremely difficult to determine the contrasting mindsets of parents or caregivers. An accused’s understanding of corrective punishment could be entirely different from the collective conscience of the society. In such circumstances upholding their autonomy would open Pandora’s box.

It is noteworthy that there have been several private bills to repeal section 43 however, till date the law remains unaltered. It is essential to amend section 43 to protect the interests of the children in Canada. After all, they are the future of tomorrow.