Tansi Nîtôtemtik,
While many of the TRC Calls to Action require the Government of Canada to make sweeping institutional and structural changes, #6 is simply stated. TRC Call to Action #6 calls for Section 43 of the Criminal Code[1] , also known as the “spanking law”, to be repealed.
S.43 excludes “reasonable physical correction of children by their parents and teachers”[2] from the definition of assault in the Criminal Code, as follows:
Correction of child by force
43 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.[3]
If you are surprised that corporal punishment against children is explicitly protected in the Criminal Code, you may be even more surprised to find that this law was unsuccessfully challenged in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) at the Supreme Court in 2004.[4] In that decision, the Court clarified that “corrective force” will only be reasonable in certain situations, to create a “zone in which discipline risks criminal sanction”.[5] For example, the Court reasoned that s.43 would not apply to children under two, children incapable of understanding the need for “correction”, or conduct that does not cause harm.[6]
Why repeal s.43?
As a signatory to the United Nations Convention on the Rights of the Child, Canada has a responsibility to ensure that children are protected from all forms of abuse under Article 19(1).[7] The United Nations Committee on the Rights of the Child has since recommended that Canada repeal s.43. The recommendation for repeal is supported by a substantial body of research showing that corporal punishment negatively effects children.[8]
TRC Call to Action #6 recognizes that corporal punishment is “a relic of a discredited past and has no place in Canadian schools or homes.”[9] The TRC’s interest in corporal punishment stems from the frequent and excessive use of such punishment in Residential Schools to control and discipline Indigenous children. Often this punishment became abusive, and has created generations of resulting trauma.[10] Many Indigenous groups carry strongly held beliefs that children are gifts “on loan” from the Creator, and should not be physically punished.[11] The condonation of corporal punishment in s. 43 goes against these beliefs.
What progress has been made?
Upon completion of the TRC, a bill to repeal s. 43 was introduced to the Senate, but it did not progress. As of today, s.43 remains the law in Canada.
Team ReconciliAction takes the position that this should have been one of the first TRC Calls to Action for the Government to complete. Let’s leave this antiquated law behind, and move towards a future of reconciliation that honors our children.
Until next time,
Team ReconciliAction YEG
1Criminal Code, RSC 1985, c C-46, s.43. [Code]
2Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 at para 1. [CFCYL]
3Code, supra note 1.
4CFCYL supra note 2.
5Ibid at para 40.
6Ibid at paras 24-30.
7Laura Barnett, “The "Spanking" Law: Section 43 of the Criminal Code”, online: Library of Parliament<lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/201635E#a3>, citing Convention on the Rights of the Child, 20 November 1989, Article 19(1). (Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.)
8Ibid.
9Truth and Reconciliation Commission, “Canada’s Residential Schools: The Legacy,” The Final Report of the Truth and Reconciliation Commission of Canada (December 2015) at 66.
10Facing History and Ourselves, “Stolen Lives: The Indigenous People of Canada and the Indian Residential Schools, Chapter 7: Punishment and Abuse”, online: <facinghistory.org/stolen-lives-indigenous-peoples-canada-and-indian-residential-schools/chapter-4/punishment-and-abuse>. (“The line between punishment and abuse was frequently crossed. Many in the schools’ administrations believed that the students’ independent spirit had to be broken in order for them to accept a new way of life. Students who did not adhere to school schedules and regulations received strappings (whippings) and were often humiliated in front of peers.” )
11Kathleen Harris, “TRC promise puts Liberals on track to repeal spanking laws” (Dec 22, 2015) online: CBC News <cbc.ca/news/politics/spanking-truth-reconciliation-laws-1.3376725>.
12Bill S-206, An Act to amend the Criminal Code (protection of children against standard child-rearing violence), 1st Sess, 42nd Parl, 2015 (First Reading December 8, 2015).
