Is it a Crime to Spank Your Child? - LCP Criminal Lawyers

Is it a Crime to Spank Your Child?

Assault as defined in the Criminal Code of Canada is to, without the consent of another person, apply force intentionally to that other person, directly or indirectly. This general definition encompasses a lot of behaviour which many would categorize as “normal” and far from criminal. The Criminal Code accounts for this by having built in exceptions. One example is section 43, which allows parents and school teachers to use a reasonable amount of physical force to discipline children. This section specifically states:

Every school teacher, 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 force does not exceed what is reasonable under the circumstances.

With this exception comes clear boundaries and limits. These boundaries are supported by the language of this section, coupled with the Canadian Charter of Rights and Freedoms.  pecifically, section 7 and section 12 which is the right that every person has, irrespective of age, under the Constitution not to be subjected to any cruel and unusual treatment or punishment.

Bill S-206, commonly referred to as the “anti-spanking bill” has received a second reading and is currently being considered by the Legal and Constitutional Affairs Committee. If this Bill passes, section 43 would be removed from the Criminal Code. This would mean that run of the mill parenting behaviour such as, stopping a child from leaving the house by physically restraining them or enforcing punishment with a smack or a slap, would be considered an assault. If this Bill becomes the law, then parents and teachers will likely be faced with scenarios where they have to consider the potential of committing a criminal offence if they use force to protect the ellbeing of a child.

The right of parents to discipline their children is considered by many as being an essential part of raising children. Reasonable physical punishment is one of the tools used to manage undesirable behaviour on the part of children. It remains to be seen, if Bill S-206 is passed whether such actions will lead to criminal charges being laid against the parents. If so the Courts would have to decide about the limits of parental authority and the Charter rights of the parents, taking into consideration that in 2004 the Supreme Court of Canada upheld the constitutionality of s. 43 of the Criminal Code. It is also likely that parents who for religious reasons feel that they have an obligation to physically discipline children, will use their right to freedom of religion to defend any charges laid against them. We are sure that there will be a lot more discussion about this important topic in the future.

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