Criminal Law and Managing Children’s Behaviour
Criminal Law and Child Discipline
All children in Canada are protected from all forms of violence through the Criminal Code, which is a federal law that applies across Canada. The Criminal Code contains general criminal offences to protect all persons from violence, and a number of offences that specifically protect children. These offences include failure to provide the necessaries of life, child abandonment and a number of child-specific sexual offences. Also, when an offence is committed against a child, a court must treat this as an aggravating factor for sentencing purposes which means that the crime is treated more seriously and can result in a longer sentence.
In addition to protections under the Criminal Code, every province and territory has laws to protect children from family violence and abuse. These laws allow the state to take action where a child is in need of protection from physical, emotional and psychological harm or neglect. Many provinces and territories also have laws and policies that prohibit the use of physical punishment of children in foster homes, childcare settings such as daycares, as well as in schools.
What is the law on assault and forcible confinement?
It is a crime to assault or threaten to assault someone, no matter their age. Assault is very broadly defined in Canadian criminal law to include any intentional use of force on another person without their consent. This includes any non-consensual touching, directly or indirectly, of a person regardless of the amount of force used. Slapping, shaking, punching, pinching, kicking, or any other form of unwanted touching are all examples of actions that may be considered to be an assault. It is also a crime to unlawfully confine a person against their will, for example by restraining them or restricting their movement, either physically or by controlling conduct, such as through fear, intimidation or other similar psychological means.
However, not every action involving the intentional use of force against a child engages in the criminal law. For example, there are times when a parent, person standing in the place of a parent (such as a caregiver), or teacher may have to physically control a child in order to keep that child, or other children, safe. In addition, childcare workers may need to restrain aggressive children or violent youth; teachers may need to separate students who are fighting; and, parents may need to stop a child from running onto the street. These are some of the situations where a parent, caregiver or teacher may use reasonable force on a child without facing criminal charges or may not be found guilty of an offence because of the application of defences, including defence of another, self-defence or defence of necessity.
What is the defence in section 43 of the Criminal Code?
Section 43 of the Criminal Code provides a defence to conduct that may not be covered by other available defences. It 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 the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.
In 2004, the Supreme Court of Canada considered whether section 43 is constitutional and consistent with the Canadian Charter of Rights and Freedoms. In a case called Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), the Supreme Court of Canada found that section 43 was constitutional but significantly narrowed its application to the use of minor force that is reasonable under the circumstances and provided the following guidelines:
- Parents/caregivers can only use corrective force (or physical punishment) that is minor or “transitory and trifling” in nature. For example, spanking or slapping a child hard enough that it leaves a mark or bruise would not be considered “transitory and trifling” and would not be reasonable.
- Teachers cannot use force for physical punishment under any circumstances. Teachers may be permitted to use reasonable force toward a child in appropriate circumstances, such as to remove a child from a classroom.
- Physical punishment cannot be used on children younger than two-years-old or older than twelve-years-old.
- Physical punishment cannot be used on a child in anger or in retaliation for something a child did.
- Objects, such as belts or rulers, must never be used on a child and a child must never be hit or slapped on the face or head.
- Any use of force on a child cannot be degrading, inhumane, or result in harm or the prospect of harm.
- Physical punishment cannot be used on a child who is incapable of learning from the situation because of a disability or some other factor.
- The seriousness of the child’s misbehaviour is not relevant to deciding whether the force used was reasonable. The force used must be minor, no matter what the child did.
It is important to recognize that many forms of physical punishment of children are not consistent with the guidelines set out by the Supreme Court of Canada and are considered crimes in Canada. Abusive and harmful conduct is not protected by section 43.
Is spanking illegal?
Spanking is a form of physical punishment that some parents use on children and, depending on the circumstances, could be illegal. Because of section 43, spanking is not necessarily a criminal offence if the Supreme Court of Canada’s guidelines are followed. However, in some circumstances, spanking could still be considered child abuse under provincial and territorial laws and could lead to action taken by child protection authorities.
The Government of Canada is committed to raising awareness that spanking is not an effective way to manage a child’s behaviour and can be harmful. The Government of Canada supports parenting education and develops publications that discourages physical punishment and physical discipline of children, and provides parents with positive parenting skills. For this reason, the Government of Canada discourages the use of spanking.
Information and resources for parents
The following resources provide more information about the laws in Canada and parenting:
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