Poste - Canadian Coalition for the Rights of Children

C A N A D I A N C O A L I T I O N F O R T H E R I G H T S O F C H I L D R E N
object of the contact here was the son of the
accused, then special rules apply. First, if the
force used was for the purpose of correction, and
second, if the force did not exceed what was
reasonable in the circumstances, then assault
cannot be regarded as criminal. This exemption
from the normal law regarding assaults exists
because children are a special class of citizens:
they are singled out as the only minority against
whom assaults by way of correction are legal as
long as the force used does not exceed what is
reasonable under the circumstances. 68
Justice Weagant further states that:
• there is some variance across the country with the
legal test to demonstrate whether the force used was
excessive; 69
• the child has absolutely no due process at all; 70
• Section 43 is in direct conflict with the UN
Convention on the Rights of the Child; 71 and
• “I think this is an area that begs for legislative reform.” 72
The Canadian Charter of Rights and Freedoms guarantees
the right to the security of the person in section 7 and equal
protection of the law without discrimination on the basis of
age in section 15. According to section 2 of the Charter,
limitations on these rights can only be allowed if they can
be demonstrably justified in a free and democratic society.
So, is section 43 justified?
According to Senator Landon Pearson, “At present, owing
to section 43, children are the only persons not protected
from the use of force by way of correction. In my view, it
is a breach of the Charter to single out children for an allpurpose
defence based on status rather than on
circumstances.” 73
Test for Reasonable Force
50
UN Committee’s Concluding Remarks
The UN Committee, in its concluding remarks on
Canada’s 1995 report, suggested that Canada “examine
the possibility of reviewing the penal legislation allowing
corporal punishment of children by parents, in schools
and in institutions where children may be placed.” The
Committee recommended that “physical punishment of
children in families be prohibited” and that “educational
campaigns be launched with a view to help changing
attitudes in society on the use of physical punishment in
the family and foster the acceptance of its legal
prohibition.” 75
The Arguments
While there are many organizations and individuals
across Canada who advocate for the repeal of section 43,
there is also concern that parents, teachers or other
persons standing in the place of a parent could be
unreasonably charged with abuse.
The Canadian Teacher’s Federation has argued that
section 43 provides a necessary shield and a limited
defence to “those adults accused of using force in their
dealings with children. “The key legal issue,” says the
Federation, “has been the test of ‘reasonableness’ or what
constitutes ‘excess’.” 76 On the other hand, Corinne
Robertshaw of the Repeal 43 Committee argues that “the
best way to prevent teachers being charged with assault is
to give them a clear and unequivocal message that force
is no longer allowed for the purpose of correction but
only in those situations permitted by other provisions of
the law.” 77 Ken Johnson of the Canadian School Boards
Association suggests that section 43 be replaced with the
following: “Every parent, teacher or person standing in
There is no definitive Supreme Court of Canada judgement on the issue of reasonable force. Many judges consider the
factors listed by the Saskatchewan Court of Appeal in R. v. Dupperon (1984), 16 C.C.C. (3d), 453 when determining
whether the force used was reasonable under the circumstances: 74
The only matter with which I am concerned here... is whether the force used exceeded what was reasonable under
the circumstances so as to deprive the appellant of the protection afforded by section 43 of the Criminal Code. In
determining that question the court will consider, from both an objective and a subjective standpoint, such matters as the
nature of the offence calling for the correction, the age and character of the child and the likely effect of the punishment
on this particular child, the degree of gravity of the punishment, the circumstances under which it was inflicted, and the
injuries, if any, suffered. If the child suffers injuries which may endanger life, limbs or health or is disfigured, that alone
would be sufficient to find that the punishment administered was unreasonable under the circumstances.