The Law of Spanking.

• Author: Bowal, Peter
• Position: FAMOUS CASES

Introduction

The freedom and choice of parents to discipline their children in the manner they choose, free from interference by the state, raises the question of where the line ought to be drawn between acceptable physical discipline and criminal assault. In a family (non-criminal) law context, spanking may also be viewed as child abuse. Social science research is inconclusive, showing both positive and negative impacts of corporal (physical) punishment.

About half the countries of Europe have made all forms of corporal punishment illegal in schools only. The other half make it illegal in both schools and homes. About half of the American states have illegalized corporal punishment in schools. The other half do not regulate it but allow parents to rule it out at school. Some 67% of Americans approve of spanking.

In Canada, there is no legal distinction between corporal punishment in the home and at school, although--along with the rest of the developed world--the practice in both places appears to be in decline. It would be difficult to find a strap in any modern Canadian school, much less one that has been recently pressed into service.

When is it the crime of assault, and when is it acceptable parenting? This article sets out the current law of spanking in Canada.

Section 43 of the Criminal Code

Parents, and guardians and teachers who stand in the role of parents, may "correct" children with "force" that "is reasonable under the circumstances." This prevents a criminal charge of assault and, if such a charge is laid, it provides a defence.

Early Cases Interpreting the Provision

The child must be under the care of the corrector, so a bystander adult in a shopping mall cannot use this section to justify smacking another's badly behaving child. Likewise, one child correcting another child in the playground. A babysitter in care of the child will be able to use this defence: R v Murphy.

A mentally disabled adult in a residential institution is neither a "child" nor a "pupil". In the 1984 case of Nixon v R, a counsellor who used physical force on "a mentally retarded adult" under his supervision received no benefit of section 43. Similarly in the same year in Ogg-Moss v R, another counsellor could not claim he was "standing in the place of a parent" or a "schoolteacher" to correct a "child" or "pupil". It probably did not help his case that he hit a severely handicapped twenty-one year old patient several times on the forehead with a large...