The Criminal Law and Managing Children's Behaviour
The following explains what the criminal law says about how parents, caregivers, and teachers may respond when children under their care are misbehaving or doing something that might be dangerous to themselves or others. It describes what actions are acceptable and what actions may lead to criminal charges and a possible conviction for breaking the law.
Changes in society
In the past, it was acceptable to hit people to make them obey. Sea captains, factory owners, employers, teachers, and parents could use physical force as a punishment. Many years ago, children, students, servants, and employees might, for example, be whipped to punish them or force them to do certain tasks. In those days, the justice system would not usually have been involved unless the adult or child were seriously injured or killed.
Over the last century, society has changed and the law has changed too. Employers are not allowed to hit their employees-ever. School boards have banned teachers from hitting students or using a strap, ruler, or other object to discipline students.
Today, parents may be breaking the law if they punish their child in the same way that their own parents punished them.
The law on assault in the Criminal Code
The Criminal Code says that assaulting someone or threatening to assault someone is a crime. Slapping, punching, pinching, kicking, restraining, or even touching are all examples of actions that may be considered assault.
However, not every action involving contact or the threat of contact between two people is assault. There are some exceptions. People may give their consent to contact. So, for example, hockey players may body check each other and boxers may punch each other without it being a crime. This is because they have given their consent to physical contact within the rules of the sport.
Section 43 of the Criminal Code - an exception to the law on assault
The Criminal Code contains a section that provides another exception to the law on assault. Section 43 allows parents, caregivers and teachers to use reasonable force to correct a child's behaviour or a student's behaviour without being found guilty of assault.
Section 43 of the Criminal Code says:
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.
This means that, under some circumstances, when parents, caregivers, or teachers use reasonable force to control a child or keep the child or other children, safe, they may not be found guilty of a criminal offence.
However, section 43 is not a defence for every action a parent, teacher, or caregiver may take. A parent, teacher or caregiver may only use reasonable force. And they may only use that reasonable force when it is connected to their duties to the child. Section 43 cannot be used as a defence, for example, when a child has been harmed or abused.
The Supreme Court of Canada decision
A few years ago, the Supreme Court of Canada made a decision about section 43 that helps to understand the law on assault today.
The Supreme Court of Canada said that the use of force on a child is only allowed to help the child learn. The parent, caregiver, or teacher using force must be correcting behaviour at the time it is happening, and the person must not use force on a child in anger.
The Supreme Court of Canada found that it was not appropriate to use force on a very young child or a teenager. The use of force will only be allowed under the exception in section 43 if the child is between two years old and twelve years old. Using force to punish a child under two is not appropriate because a child that young cannot learn from the situation. Using force on a teenager is not appropriate because there are better and more effective ways to respond to a teenager's behaviour.
Section 43 says that the force used on a two to twelve-year-old child must be "reasonable under the circumstances". The Supreme Court of Canada defined "reasonable" as force that would have a "transitory and trifling" impact on the child. For example, spanking or slapping a child so hard that it leaves a mark that lasts for several hours would not be considered "transitory and trifling".
The Supreme Court of Canada also said that the force used must not be degrading, inhumane, or harmful. The person using force must not use an object, such as a ruler or belt, and must not hit or slap the child's head.
Finally, the Supreme Court of Canada said that the seriousness of the child's misbehaviour is not relevant. The force used must be minor, no matter what the child did.
The use of force when managing children's behaviour
There are times when parents, caregivers, and teachers may have to use force to control a child and keep the child, or other children, safe. Grabbing a child to keep that child from running across the street, carrying a screaming three-year-old out of a store, or separating two young students who are fighting may require a parent, caregiver, or teacher to touch or restrain the child.
Without section 43, parents, caregivers, and teachers could face criminal charges and have to go to court to defend their actions whenever they used force to respond to a child's behaviour.
The use of force to correct a child is only allowed to help the child learn and can never be used in anger.
- The child must be between two years old and twelve years old.
- The force used must be reasonable and its impact only "transitory and trifling".
- The person must not use an object, such as a ruler or belt, when applying the force.
- The person must not hit or slap the child's head.
- The seriousness of what happened or what the child did is not relevant.
Using reasonable force to restrain a child may be acceptable in some circumstances.
Hitting a child in anger or in retaliation for something a child did is not considered reasonable and is against the law.
Tips on successful ways to manage children's behaviour
You will find more information about bringing up children at these web sites.
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