Liberals Vow To Repeal Section 43 Of The Criminal Code

In promising to enact all of the recommendations of the Truth and Reconciliation Commission ("TRC"), the federal Liberals have agreed to remove the section in the Criminal Code that permits teachers and parents to use reasonable force to correct the behaviour of children in their care.1

The Truth and Reconciliation Commission, which heard thousands of stories of physical abuse inside Indian residential schools, said in its final report that "corporal punishment is a relic of a discredited past and has no place in Canadian schools or homes." The repeal of section 43 of the Criminal Code was No. 6 on a list of 94 "calls to action" included in the report.2

Parliament has recognized the fact that educators may be justified in using force against a student in special circumstances. A teacher who applies physical force in the course of disciplining a student may be subject to a criminal charge of assault. The Criminal Code provides a defence, however, for teachers, parents and persons standing in the place of a parent who use reasonable force against a child for the purpose of correction. Section 43 of the Criminal Code 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."

In 2004, the Supreme Court of Canada ruled that physical force was acceptable within certain bounds — it cannot be used on children under the age of 2, it cannot involve implements, such as a paddle or a belt, and blows to a child's head are not allowed.3

Teachers cannot use any form of corporal punishment, the court ruled, although they may restrain students to gain compliance with their instructions.

The court stated, "Substantial societal consensus, supported by expert evidence and Canada's treaty obligations, indicates that corporal punishment by teachers is unreasonable."4

The court ruled that section 43 will protect a teacher who uses reasonable, corrective force to restrain or remove a child in appropriate circumstances.

The court concluded that section 43 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."5

Teachers praised the 2004 Supreme Court decision, saying that educators need flexibility in certain circumstances to remove a child from a classroom or...