Since I had the opportunity to serve in the Ministry of Attorney General, Ontario in the capacity of Court Registrar and Crown Attorney, and now my practice’s primary focus is on Family Law, my clients frequently asked me a common question whether they can physically discipline the children. I thought I should write on this issue for information purposes. In Canada, parents may physically discipline their children which includes spanking but there are certain restrictions.
Section 43 of the Criminal Code of Canada provides:
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 section was challenged in the Supreme Court of Canada on the basis that it violates children’s rights. Supreme Court upheld the constitutionality of this provision and dismissed the constitutional challenge on all grounds on a 6-3 split, in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)  1SCR 76.
I would reproduce Justice Nicholson’s review of the Supreme Court of Canada’s decision in DCAS v J.L.B (M), 2016 ONSC 6405, paragraph 12, analysing the scope of physical discipline that is permissible for children under section 43 of the Criminal Code of Canada before it becomes the offence of assault:
This analysis by the Supreme Court of Canada, in my view, has helped identify the general parameters of acceptable corporal punishment by parents. The following principles can be extrapolated from this decision to apply to child protection law:
- The only individuals permitted to use corporal punishment are parents or persons who have assumed all the obligations of parenthood. As such, a nanny or relative assuming temporary care of a child should not be permitted to use corporal punishment.
- Corporal punishment must be intended for educative or corrective purposes. As such, outbursts of violence against a child motivated by anger or animated by frustration should not be tolerated. “Only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolic disapproval of his or her behaviour” are permissible as corporal punishment.
- The child must be capable of benefiting from the correction. This requires the capacity to learn and the possibility of successful correction.
- Force against children under two cannot be corrective, since on the evidence they are incapable of understanding why they are hit.
- Corporal punishment of teenagers is harmful because it can induce aggressive or antisocial behaviour.
- Corporal punishment must be “reasonable under the circumstances”. Assessment of what is reasonable under the circumstances includes consideration of the following factors:
i. Did the non-consensual application of force result in harm or in the prospect of bodily harm? If so, it was not reasonable. Corporal punishment is limited to the mildest forms of assault.
ii. Corporal punishment will never include cruel, inhuman or degrading treatment of a child.
iii. What was the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim?
iv. What is the current social consensus on what is reasonable? It is wrong for caregivers or judges to apply their own subjective notions of what is reasonable based on different backgrounds; an objective appraisal based on current learning and consensus is required. Substantial consensus, particularly when supported by expert evidence, can provide guidance and reduce the danger of arbitrary, subjective decision-making. The court should acknowledge the evolutive nature of the standard of reasonableness, and not give undue authority to outdated conceptions of reasonable correction.
v. Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful and therefore not reasonable.
vi. Corporal punishment which involves slaps or blows to the head is harmful and therefore not reasonable.
Is Spanking Legal?
Spanking is a form of physical punishment that some parents use. Its legality depends on the circumstances – if the Supreme Court of Canada’s principles are followed. However, spanking is not an appropriate way to control a child’s behaviour and can be harmful to the child’s growth.
Sometimes parents feel frustrated due to their kids’ behaviour and take measures, which include physical discipline, to help them learn self-control. But such physical discipline must be in consonance with the principles set out by the Supreme Court in order to avoid any criminal charge.