Q - Is spanking children against the law?
A - The law assumes that spanking a child to correct his or her behaviour is not against the law as long as the force used is reasonable. Section 43 of the Criminal Code of Canada gives a defence to parents, parent-substitutes, and teachers who have used corporal punishment and who have been charged with physically assaulting a child in their care. Section 43 states that every schoolteacher, parent or person standing in place of a parent is justified in using force to correct a pupil or child who is under his or her care, so long as the force does not exceed what is reasonable under the circumstances.
The Canadian Foundation for Children, Youth and the Law challenged the constitutionality of Section 43 in an Ontario Court. In 2000 the judge dismissed the application and upheld Section 43. The Foundation appealed in 2001 to the Ontario Court of Appeal. The Court upheld Section 43. The Foundation then appealed to the Supreme Court of Canada. The Supreme Court of Canada is the highest level of Court in Canada and sets the standards that all other courts in the country must follow.
The case brought before the Supreme Court was the Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General). On January 9, 2004 the Supreme Court of Canada announced its decision. The decision is not really about whether corporal punishment is good or bad, but whether Section 43 of the Criminal Code violates section 7(d) of the Canadian Charter of Rights and Freedoms. This section deals with security of the person. The Court decided that Section 43 does not violate the Charter. It also decided to set boundaries on the way force may be used to discipline a child. The rest of the questions on this page discuss these guidelines.
Q - Is it legal for me to spank a child?
A - There is a fine line between spanking a child and physical abuse of a child. Parents and teachers have been charged with assault for spanking a child or using other forms of physical punishment. In many provinces (including Nova Scotia) the Department of Education forbids corporal punishment.
Q - What limits did the courts set on physical discipline?
A - The Supreme Court of Canada stated that force must be intended to educate or correct the child and/or intended to restrain, control or express disapproval of the child's behaviour. You can only use force if the child is capable of benefiting from the discipline. You cannot use force if the child is too young to learn from the use of force, or cannot learn from force because of a disability. You can also use force if it is 'reasonable under the circumstances,' and it does not offend society's view of decency.
Q - How does the court define reasonable force?
A - 'Reasonable under the circumstances' is very broad, so the Supreme Court of Canada created the following definition of 'reasonable force' in disciplining children:
Reasonable force is 'minor corrective force,' short-lived and not harmful. The courts have an objective test to apply in deciding whether the use of force is reasonable. The courts also make use of social consensus and expert advice to decide whether an instance of spanking represents reasonable or unreasonable use of force.
Q - What is not reasonable force?
- Hitting a child under 2 years of age. Such a young child is not able to understand why someone is spanking them;
- Hitting teenagers: This may alienate the youth and promote aggressive or anti-social behaviour;
- Using objects to hit such as belts, rulers, etc. because they can be harmful both physically and emotionally;
- Slaps or blows to the head;
- Degrading or inhumane treatment;
- Corporal punishment that causes injury.
Q - Where can I get more information?
A - The Public Health Agency of Canada provides ideas and tips about how to discipline children effectively without spanking, in its publication: 'What's Wrong with Spanking : Positive Parenting Tip Sheet'. You can also visit the Public Health Agency's general website on Childhood and Adolescence for more information about parenting - www.publichealth.gc.ca
The Supreme Court of Canada's decision on spanking is available online at Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General).
Click on the following link for information about family violence.