Section 43 of the Criminal Code of Canada
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. R.S.C., 1985, c .C-4
The constitutionality of Section 43 was challenged in the Ontario Superior Court of Justice: then by way of appeal in the Ontario Court of Appeal and the Supreme Court of Canada. The Section appears verbatim as it did prior to the Supreme Court of Canada’s decision. However the Court narrowed the scope of defence to assault under section 43 of the Criminal Code of Canada and to set out a series of judicial limitations to assist in the interpretation of the justifiable or so-called “reasonable” limits of corporal punishment. The judicial limitations (which again don’t appear in the Criminal Code of Canada) are as follows:
1) Only parents may use reasonable force solely for purposes of correction;
2) Teachers may use reasonable force only to “remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment”;
3) Corporal punishment cannot be administered to “children under two or teenagers”;
4) The use of force on children of any age “incapable of learning from [it] because of disability or some other contextual factor” is not protected;
5) “Discipline by the use of objects or blows or slaps to the head is unreasonable”;
6) “Degrading, inhuman or harmful conduct is not protected”, including conduct that “raises a reasonable prospect of harm”;
7) Only “minor corrective force of a transitory and trifling nature” may be used;
8) The physical punishment must be “corrective, which rules out conduct stemming from the caregiver’s frustration, loss of temper or abusive personality”;
9) “The gravity of the precipitating event is not relevant”; and
10) The question of what is “reasonable under the circumstances” requires an “objective” test and “must be considered in context and in light of all the circumstances of the case.”