- Kasia Kieloch (law student)
S. 43 of the Criminal Code: Time to Get Rid of Child Spanking
Spanking children as a form of discipline is a heavily debated and polarizing topic. S. 43 of the Criminal Code permits spanking, although the Senate is attempting to eliminate this provision.1 Earlier this year, Manitoba Senator Murray Sinclair sponsored Bill S-206, which seeks to repeal S. 43 of the Criminal Code.2 What is this section all about and what makes it such a topic of concern?
S. 43 states: 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 case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.3 There was significant room for interpretation of the section until the Supreme Court of Canada outlined the meaning of reasonable limits in its 2004 decision in Canadian Foundation For Children, Youth and the Law v Canada (AG).4 In the decision, reasonable limits were that reasonable force could only be applied in a corrective manner against children between the ages of 2 and 12 years old, cannot be done with an object, and can only involve “minor corrective force of a transitory and trifling nature.”5
Many proponents of spanking suggest that parents, schoolteachers, and people standing in place of parents should be entitled to discipline children however they would like. Spanking does not have to cause a child pain. It has been used on so many people who do not seem to suffer negative consequences that spanking is not negative. Parents should be able to assert their authority and enforce rules however they please, and they know what works best for the child.
Others view spanking as being akin to child abuse because normally, when adults are hit, it would be illegal and called assault. Spanking is also viewed as an unnecessary and psychologically demeaning way to address unwanted behaviour. There are many other ways for unwanted behaviour to be addressed without resorting to spanking. Additionally, there is a concern that not all parents are aware of and practice the reasonable limits on spanking, and that their actions constitute something closer to assault than lawful discipline and child rearing.
Within a global context, Canada is behind the curve on the spanking issue. Over 40 countries around the world, including Sweden and New Zealand, have banned spanking. 6 Canada is one of 140 signatories to the Convention on the Rights of the Child, where article 19 suggests that spanking should not be a permissible law.7 Canada signed the Convention in 1990 and has yet to put article 19 into action.8 In addition, one of the Truth and Reconciliation Commission’s recommendations is to repeal s. 43. 8 The federal government has committed to implementing all of the commission’s recommendations, which by extension is a commitment to repeal s. 43. 10
Regardless of the various views on the spanking issue, most would agree that the main concern is about keeping children safe by not doing harm to them. Spanking does not have to be a harmful practice, but in my opinion, it does not need to be practiced at all. Canada has committed to national and international obligations to repeal s. 43, and on that basis alone, it should be repealed. It is difficult to expect Canadians to know the exact wording of the Criminal Code section on spanking and the guidelines that emerged from case law. It would likely be a better use of time to implement educational public policy campaigns that teach parents alternative strategies to spanking than to continue with statutory and common law definitions of what is and is not permissible. Overall, it is my opinion that it is time to repeal s. 43 and to get rid of child spanking.
1 Criminal Code, RSC 1985, c C-46, s. 43.
2 Kathy Vandergrift, “Children’s Rights and Bill S-206” (27 February 2017), online: http://rightsofchildren.ca/protection/childrens-rights-and-bill-s-206/>.
3 Supra note 1.
4Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) 2004 SCC 4, 2004 1 SCR 76.
5 CBC News, “Supreme Court Upholds Spanking Law”, CBC News (30 January 2004), online: <http://www.cbc.ca/news/canada/supreme-court-upholds-spanking-law-1.496454>.
6 Jacqueline Wilson, “Spanking Children Could Soon be Illegal in Canada” Global News (9 January 2016), online: <http://globalnews.ca/news/2444188/spanking-children-could-soon-be-illegal-in-canada/>.
7 United Nations Treaty Collection, “11. Convention on the Rights of the Child”, online: <https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4&lang=en>.
9 Supra note 6.