Section 43 Upheld
by Bob Fitzpatrick, NBTA Executive Director (1993-2009)
On January 30 of 2004, the Supreme Court of Canada upheld Section 43 of the Criminal Code by a 6-3 majority. The Court rejected all aspects of the challenge to Section 43 and went on to comment on the evolving nature of the application of Section 43 in the courts. Section 43 of the Criminal Code of Canada states:
“Every school teacher, 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.”
Chief Justice Beverley McLachlin, writing for the majority, clarifies a number of issues related to s. 43 which will give parents, teachers, caregivers, and lower courts some guidance as to the future application of this section of the Criminal Code. Following, we present some of the issues related to s. 43 and quote the Court’s decision to give clarity.
1. Why retain Section 43?
“While children need a safe environment, they also depend on parents and teachers for guidance and discipline, to protect them from harm and to promote their healthy development within society.” (para. 58,59)
Section 43 is Parliament’s attempt to accommodate both of these needs. It provides parents and teachers with the ability to carry out the reasonable education of the child without the threat of sanction by the criminal law. The criminal law will decisively condemn and punish force that harms children, is part of a pattern of abuse, or is simply the angry or frustrated imposition of violence against children. But s. 43 ensures the criminal law will not be used where the force is part of a genuine effort to educate the child, poses no reasonable risk of harm … and is reasonable under the circumstances.
2. What force might be deemed “reasonable under the circumstances”?
The Court is clear that only the mildest force will be sanctioned and only if it is corrective in nature and not resulting from loss of temper or frustration (para. 40). “Generally, s. 43 exempts from criminal sanction only minor corrective force of a transitory and trifling nature. … [I]t does not apply to corporal punishment of children under two or teenagers. Degrading, inhuman or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the head is unreasonable. … Coupled with the requirement that the conduct be corrective, which rules out conduct stemming from the caregiver’s frustration, loss of temper or abusive personality, a consistent picture emerges of the areas covered by s. 43 … [and] of what is ‘reasonable under the circumstances’.”
3. What does the decision say about teachers?
There are a few specific comments about teachers which can give us significant guidance (para. 46). “Contemporary social consensus is that, while teachers may sometimes use corrective force to remove children from classrooms or secure compliance with instructions, the use of corporal punishment by teachers is not acceptable” (para.38). (Corporal punishment is already prohibited in s. 23 of the Education Act.) “There may, however, be instances in which a parent or school teacher reasonably uses corrective force to restrain or remove an adolescent from a particular situation, falling short of corporal punishment.”
It is clear that the Supreme Court would be supportive of the wording in Policy 701, Section 4.4 -Examples of Appropriate Behaviour, bullet 2, which reads:
“physical force or restraint not exceeding that required for the protection of an orderly learning environment, personal safety, the protection of others or the protection of school property.”
Teachers need the protection afforded by s. 43 to carry out their duties without fear that even minimal physical contact, to maintain a safe orderly environment, could be met with criminal charges.
We are appreciative of the Canadian Teachers’ Federation and others who intervened to retain s. 43 and we are relieved that the Supreme Court has not only upheld s. 43, but that it has also provided some much needed clarification in its decision.
“The reality is that without s. 43, Canada’s broad assault law would criminalize force falling far short of what we think of as corporal punishment, like placing an unwilling child in a chair for a five-minute ‘time-out’. The decision not to criminalize such conduct is not grounded in devaluation of the child, but in a concern that to do so risks ruining lives and breaking up families …” (para. 62).