The 'Teachers' Defence': Section 43 In The Modern World

An increasing number of teachers are being criminally charged with assault in Alberta. Sometimes these allegations are exaggerated or maliciously brought by students or parents to advance a hidden agenda. In many of these cases, it is not disputed that the teacher had some physical contact with the child.

Not all physical contact by a teacher with a child is unjustified or criminal. Teachers charged with assault have the same defences available to them as anybody else, including self-defence, defence of others, etc. However, teachers and parents have an additional defence- s. 43 of the Criminal Code1 , the so-called "parent and teacher defence." It is the most important justification for a teacher's application of force to a student. The question for the criminal court in most assault cases is whether or not s. 43 applies to exonerate the teacher.

Physical contact of various types is common between teachers and students in modern schools. Teachers who wish to remain employed and stay out of the criminal justice system need to understand the difference between acceptable and unacceptable contact. It is important for teachers in the trenches to understand how the offence of assault is defined and the limits of the s. 43 defence.

The following will summarize how the modern concept of s. 43 has developed over time.

Assault

Common assault is defined in s. 265 of the Criminal Code. There are three ways in which assault can be committed.

The most common involves the physical application of force2 , the elements of which are

the application of force to another person, directly or indirectly; without that person's consent. The application of force must be intentional. Accidentally bumping into someone does not count. However, the motive behind the touching is irrelevant. If the application of force in question was intended, it does not matter how well intentioned a teacher may have been in applying it.

The degree of force applied does not matter. Any touching, however minor, is sufficient, including taking a child by the arm or patting a student on the back.

The consent of the person touched can be expressed or implied. For example, it is implied that hockey players consent to body checks during a game and, in some cases, even those beyond the rules of the game. However, in teacher-student situations, a child's consent is usually absent. Students are not generally willing to be led to the office for discipline.

A second way of committing common...