In the past, it was socially acceptable to implement corporal punishment on another person to make them obey. Teachers and parents in Canada had the power to use physical force as punishment as a disciplining technique upon children to make them do certain tasks (Department of Justice, 2016). Yet over the last century, both social norms and the law have changed and progressed to reflect the seriousness of inflicting harm upon another person, taking into account the damage and consequences the punishment could have once it has been administered.
However, not every act of corporal punishment has been repealed from the Criminal Code. A controversial law which remains on the books, Section 43 expressly offers parents and teachers a defence when they use “reasonable force” to discipline a child (Barnett, 2008, 2016). The ‘Correction of child by force’ section of the Code—otherwise known as the “Spanking” Law—reads as follows:
43 Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction towards a pupil or child, as the case may be, who is under their care, if the force does not exceed what is reasonable under the circumstances (R.S., c. C-34, s. 43).
This defence of ‘lawful correction’ or ‘reasonable chastisement’ appeared in the Code in 1982, and the content has virtually remained unchanged since that time (Barnett, 2016). The ‘spanking’ law indicates that, under certain circumstances, when parents, teachers or caregivers use reasonable force to control a child or to keep the child or other children safe, they may not be found guilty of a criminal offence.
However, the question of ‘reasonableness’ has plagued the law and has yet to be resolved. Given an increased recognition in the rights and best interests of children, there have been calls in recent years to abolish all forms of physical punishment against children and youth (which would lead to the repeal of the law). However, others, while acknowledging that abuse of children is never justified, have expressed that minor physical correction is acceptable to discipline children in certain circumstances, and that individuals should not risk criminal prosecution and sanctions as a result of their parenting techniques and that they should be free to discipline their children (provided that it is fair, reasonable, and never abusive) (c.f. Barnett, 2008, 2016).
At an abstract level, to consider punishment as a social practice is to question how punishment is applied within Canadian criminal law and to examine its relationship with society. This is not a simple task, as punishment operates disparately and is experienced by legal subjects differently.
For example, punishment could be considered as a form of communication, which then informs citizens of a particular political or cultural community of what they are or are not supposed to value. Punishment may also be reflected as a process that leads to the satisfaction of revenge and/or the reinforcement of social cohesion; it may succeed in demonstrating that particular state actions were taken against an individual or group, or punishment could suggest to civilians that it supplements those in power and their fight against crime. Furthermore, punishment may give flesh to certain scapegoat mechanisms and divert attention away from specific issues, or it may symbolize the constitution of in- and outsider groups within society.
Regardless of which understanding of punishment one identifies with (and of course this is neither a comprehensive nor exhaustive list which has the potential to overlap), it is clear that when we focus on the sociology of punishment we must not simply examine the “domain of self-proclaimed goals of punishment (such as deterrence, reform, rehabilitation and incapacitation).” We must explore the legal functions of which punishment fulfills, “the effects it produces and the meanings it communicates” to Canadians (Daems, 2011, p. 807).
As a social construction, the legal text has the power to reflect and refract what is happening in the socio-political landscape in which it finds itself. Ultimately, this construction then places the law in the time of its writing, and by no means is this placement a simple and straightforward interpretation for the judiciary (see for example Gacek & Jochelson, 2017). Indeed, Supreme Court judicial clashes have even generated over the use of reasonable correction to discipline children. In Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) (2004) the Supreme Court of Canada was charged with the question of whether Section 43 was unconstitutional. In a majority ruling of six-to-three, the SCC majority concluded that the law did not violate the Charter, as it did not infringe on the child’s right to security of the person or the child’s right to equality, nor did the law constitute cruel and unreasonable punishment. The majority found that the law was reasonable insofar as the force was used for educational and corrective purposes, that the force was sober and reasoned, addressed the actual behaviour, and was intended to restrain, control, or express symbolic disapproval. Furthermore, the words “reasonable under the circumstances” indicated that the force must not be ‘transitory’ or ‘trifling,’ must not hurt or degrade the child, and must be based on the gravity of the wrongdoing (CFCYL v. Canada, 2004).
While corporal punishment itself is not reasonable in the school context, the majority found that teachers may use force to remove children from classrooms or secure compliance with instruction.
However, the dissenting opinions found Section 43 constitutionally vague, and cited that the lack of judicial consensus on what constitutes force that is “reasonable under the circumstances”; per Justice Arbour, the law does not provide clear guidance to teachers, parents or caregivers. To conflate the responsibilities of teachers, parents and caregivers is to presume that all persons should have protection under Section 43. Because the justification of the law rests on respecting the family environment where only limited use of corrective force is used to carry out important parental responsibilities, coupled with the changing societal perspectives of disciplining children in school contexts, the defence of Section 43 should be made to read to avoid the inclusion of teachers within the law, as per Justice Binnie’s suggestion.
Finally, Justice Deschamp concluded that because the section includes outdated notions of a child’s inferiority within the broader context of personhood, the law impairs the rights of children and their bodily integrity, and should be deemed unconstitutional and struck down.
In effect, in this decision, we can see the contentious debate surrounding the reasonableness of minor forms of punishment when disciplining children. Regardless of whether one believes that a spoonful, a cup or a pint is an appropriate amount of punishment needed to manage and correct a child’s behaviour, we must also confront the appropriateness of the Canadian criminal law as a moral code which enforces a particular view of what constitutes ‘proper parenting’ (Barnett, 2008).
While this debate endures today, it remains important to remember that examining this law should not be solely concerned with how one should interpret and adjudicate the law. A soci0-legal reading requires us to critically place notions of reasonableness, parenting and punishment within broader societal contexts and to problematize and perhaps construct the most appropriate way to respect both the child disciplining techniques of the adult and the rights of the child within the familial and school environments.
Barnett, L. (2008). The “Spanking” Law: Section 43 of the Criminal Code. Parliamentary Information and Research Service, Law and Government Division: Library of Parliament.
Barnett, L. (2016). The “Spanking” Law: Section 43 of the Criminal Code. Parliamentary Information and Research Service, Legal and Social Affairs Division: Library of Parliament.
Daems, T. (2011). A Peculiar Sociology of Punishment. Oxford Journal of Legal Studies, 31(4), pp. 805-823.
Department of Justice. (2016). The Criminal Law and Managing Children’s Behaviour. Government of Canada. Available at: http://www.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/mcb-cce/index.html.
Gacek, J. & Jochelson, R. (2017). Placing ‘Bestial’ Acts in Canada: Legal Meanings of ‘Bestiality’ and Judicial Engagements with Sociality. The Annual Review of Interdisciplinary Justice Research, 6, pp. 236-261.
Canadian Foundation For Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, aff’g (2002), 57 O.R. (3d) 511 (C.A.), aff’g (2000), 49 O.R. (3d) 662 (S.C.) [“CFCYL v. Canada”].
Criminal Code, R.S., c. C-34, s. 260.