Yes, depending on the circumstances, you are permitted to spank your child in Canada.
Usually, striking another person would be treated as assault in the legal system and might result in criminal charges, but section 43 of the Criminal Code creates an exception if you are using force on a child for corrective reasons. Section 43 states that you are justified in using corrective force so long as you are using ‘reasonable force.’ Obviously, what is or is not ‘reasonable’ can change depending on a number of factors. Nevertheless, not all force used on a child is justified as reasonable force under section 43.
Can you be charged with a criminal offence if you spank your kids?
Whether or not you might be charged with a criminal offence for spanking your kids depends heavily on the circumstances. You must use ‘reasonable force’ when disciplining your child, and the courts have developed a number of factors to determine whether or not any disciplinary actions by a parent constitute a criminal offence. As long as you meet the legal standards for ‘reasonable force’ when spanking/disciplining your child, you are less likely to be charged criminally, and more likely to be able to rely on section 43 as a defence if you are charged.
Canada’s legal system and section 43 attempt to strike a balance between recognizing a parent’s ability to discipline their child within reason, and the protection of children from unusual, degrading, or severe force from their parents. Thus, the law is designed, at least to a certain degree, with a measure of flexibility. What does or does not constitute reasonable force will vary greatly depending on the circumstances.
Can teachers spank kids in Canada?
Section 43 of the Criminal Code includes teachers in the exception that allows corrective force to be used on a child. However, the Supreme Court of Canada’s 2004 decision in Canada Foundations for Children, Youth and the Law v. Canada (which also set out the guidelines for ‘reasonable force’ below) placed significant restrictions on what a teacher can do in the classroom. Teachers cannot spank or strike students as a corrective/disciplinary measure, or as a form of punishment. A teacher can only spank/use force on a student only when necessary, such as when breaking up a fight between students or to ensure instructions are followed, such as removing a child from the classroom.
Can a person standing in the place of a parent spank a child in Canada?
Yes. Section 43 does allow a ‘person standing in the place of a parent’ to spank a child. The courts have defined this term as meaning anyone who has ‘assumed all the obligations of parenthood.’ This would likely not include babysitters, nannies, or relatives (depending on the living arrangement), but could include step-parents, again depending on the circumstances. The laws are designed for parents (or other family figures that act as parents) to be able to discipline their children within reason but make clear that no one other than a parent, or someone who is acting as a parent, should be the one applying this corrective force.
What is reasonable force?
‘Reasonable force’ is a legal standard used by the courts and can be difficult to define concisely. In the Canada Foundations for Children, Youth and the Law v. Canada decision, the Supreme Court set out the guidelines for ‘reasonable force’ when it comes to disciplining a child. The decision lists a number of factors that can be used in determining whether or not the force applied are reasonable:
- You can only use force that is ‘transitory and trifling’ in nature. This is another legal phrase, meaning the force must be short in duration/temporary, and it must be minor. This means that the force cannot do any lasting harm to the child. If you spanked your child hard enough to leave a bruise, for example, or if the spanking was drawn out over a longer period of time, this would go above and beyond the ‘transitory and trifling’ standard and would not be considered reasonable.
- The force used must be ‘corrective’ in nature, meaning that it must address the problematic behaviour displayed by the child. Essentially, this means that if you use force, it must be in response to behaviour from your child, and the force must be intended to correct or restrain that behaviour. Spanking your child out of anger, confusion, or frustration is not reasonable, and such actions are more likely to result in criminal charges.
- Force cannot be used on a child younger than two or older than twelve. Children younger than two are likely unable to understand the connection between discipline and bad behaviour, and the law seems to suggest that there are better ways to discipline a child older than twelve.
- Objects, such as belts or rulers, cannot be used to discipline a child. ‘Reasonable force’ only covers force applied with a bare hand. Furthermore, a child cannot be struck on the head or face.
- Force cannot be used on a child if it is degrading, inhumane, or if it results in harm (as discussed above). This means anything that is unnecessary to the disciplinary force itself, such as the removal of clothing or the spanking taking place in public.
- You cannot physically discipline a child to correct behaviour if that behaviour stems from any learning disability the child might have. For example, this means that you cannot spank or otherwise discipline your child if they are struggling with homework or in school more generally.
- Finally, the gravity/seriousness of the child’s misbehaviour is irrelevant to the circumstances of the force used. In practice, this means that it does not matter what the child did, and egregious/extreme behaviour on the part of the child does not justify the use of more force. You cannot spank your child harder than you otherwise would if they are acting out more severely.
What should you do if you hit your child?
If you hit your child with excessive force and believe you may have crossed the line, or if you think you may be charged criminally, the best course of action is to contact an experienced criminal defence lawyer. The courts take violence against children very seriously and will treat it as an aggravating factor. Whether or not you will be charged is highly fact-specific, and an experienced criminal defence lawyer will be able to guide you through the process from start to finish.
Book a free consultation with Strategic Criminal Defence online or by phone to talk to an experienced lawyer about your options, and a plan moving forward.