The Use of Force in child correction – Implications for Educators from an Important Supreme Court of Canada Decision

By Maureen Forestell

By a 6–3 majority the Supreme Court of Canada in Canadian Foundation for Children, Youth and the Law v. Attorney General et al upheld the constitutionality of section 43 of the Criminal Code of Canada.

Section 43 excludes from the definition of the offence of assault, the use of reasonable physical force by way of correction on a child by a parent, teacher or person standing in the place of a parent.

The section was challenged on the grounds that it violated sections 7, 12 and 15 of the Canadian Charter of Rights and Freedoms.

While the majority upheld the constitutionality of the legislation, Justice Binnie would have declared the section unconstitutional insofar as it relates to teachers, Justice Arbour would have struck down the section as over broad and Justice Deschamps would have struck it down as violating the equality rights of children.

The section met constitutional standards in the view of the majority when clear parameters were read into the section. The decision sets out that corrective force cannot be used on children under two years of age, over twelve years, nor on children with disabilities that would render them incapable of learning form the discipline. The majority decision also holds that blows to the head or with objects are unreasonable in any circumstances.

The Chief Justice, writing for the majority held that there existed in society a sufficient consensus to give meaning to the reasonableness requirement in the section. The source for the content was expert reports on the effect of corrective force. It was held that there is consensus that children less than two years of age do not learn from force and that teenagers suffer harm from it. Similarly there was said to be a sufficient consensus that blows with objects or to the head were harmful and therefore never reasonable.

The 'reading in' of these limits raises issues for the future should the 'consensus' in society change. It also raises the issue of an immature teenager or an advanced toddler. The court left open the possibility that force was also excluded where the child suffered from a type of disability that would render the child incapable of learning from the force. This would logically also lead to the possibility of children outside the delineated age parameters being capable of learning. The task of applying the limits of the court will be a complex one. The majority has entered into an exercise of judicial regulation at a level that is problematic. If the legislation required the type of limits imposed by the court and required those limits for policy reasons, the issue is one that arguably should have been left to Parliament.

The further limit held by the majority to exist was the limit on the use of force by a teacher. This was held to be restricted to the use of 'corrective force' to remove a child from a classroom or secure compliance with direction but not as discipline or punishment. The Chief Justice wrote at paragraph 38:

"Contemporary social consensus is that, while teachers may sometimes use corrective force to remove children from classrooms or secure compliance with instructions, the use of corporal punishment by teachers is not acceptable. ..Section 43 will protect a teacher who uses reasonable, corrective force to restrain or remove a child in appropriate circumstances."

This statement is difficult to reconcile with the definition of force "by way of correction." At paragraph 24 the Chief Justice writes that, by definition, in order to be exempted from criminal liability for assault under this section, "the person applying the force must have intended it to be for educative or corrective purposes...[Section 43] admits into its sphere of immunity only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolic disapproval of his or her behaviour..."

The definition of situations in which a teacher will be entitled to use reasonable force is sufficiently broad as to protect teachers in most common situations. While it is not entirely clear from the judgement, this exception should be seen to apply to teenagers as well as to children between two and twelve years of age.

The decision is consistent with most school board policies and teaching standards. It removes any question as to the use of force for corrective purposes but retains the defence for those instances when force is necessary to restrain or remove the student.