Is It a Crime to Spank Your Child in Canada?

When defined as a use of reasonable force, it is not a crime to spank your child in Canada. Known as corporal punishment, physical discipline of a child is not a criminal offence so long as the force is deemed reasonable, as defined by the Criminal Code.

However, the line between lawful discipline and criminal assault is carefully defined by law. Parents, caregivers, and teachers who exceed what the law considers reasonable force may face assault charges and serious legal consequences.

What Does the Law Say About Physical Discipline?

Section 43 of the Criminal Code provides a legal defence for parents and teachers who use reasonable force to discipline children:

“Every schoolteacher, 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 the force does not exceed what is reasonable under the circumstances.”

This provision offers parents, schoolteachers, and persons standing in the place of a parent a defence when they use reasonable force to discipline a child. The defence first appeared in the Canadian Criminal Code in 1892 and has remained mostly unchanged since then.

Is Section 43 Constitutional?

Yes. The Supreme Court of Canada upheld Section 43 in the 2004 case of Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General).

Six of nine justices found that the provision does not violate the Canadian Charter of Rights and Freedoms. The Court ruled that Section 43 does not infringe a child’s right to security of the person, does not violate a child’s right to equality, and does not constitute cruel and unusual treatment or punishment.

However, the Supreme Court placed significant limitations on what constitutes “reasonable force” under the section.

What Does “Reasonable Force” Mean?

The 2004 Supreme Court decision established clear parameters for what constitutes reasonable force. Understanding these limitations is essential for any parent or caregiver.

The Force Must Be Corrective

Parents and legal guardians can only use “corrective force,” meaning force that addresses the child’s actual behaviour and is intended to control, restrain, or express disapproval of the child’s behaviour. The use of force must be sober and reasoned.

A risk of criminal conviction for assault still exists if the force is proven to be used for non-educative or non-corrective purposes, such as anger or retaliation.

The Force Must Be “Transitory and Trifling”

The corrective force must be reasonable, meaning it is minor or “transitory and trifling” in nature. Transitory means temporary, passing, and short-lived. Trifling means trivial, petty, or minor.

For example, spanking or slapping a child hard enough to leave a mark or bruise would not be considered “transitory and trifling” and would not be reasonable.

The Force Must Not Harm or Degrade the Child

Any use of force on a child cannot be degrading, inhumane, or result in harm or the prospect of harm. The force must not be based on the gravity of the child’s wrongdoing. The seriousness of the child’s misbehaviour is not relevant to deciding whether the force used was reasonable.

What Are the Specific Restrictions on Physical Discipline?

The Supreme Court outlined several specific prohibitions that remain current law in Canada.

Age Restrictions

Section 43 does not justify force against children under 2 years old or teenagers over 12 years old. The law demands that a child must have the capacity to understand the reason for the use of force. Children under 2 lack this capacity, and physical punishment of teenagers is considered unreasonable.

Children with Disabilities

Physical punishment cannot be used on a child who is unable to learn from the situation because of a disability or some other factor. The child must be capable of understanding why the force is being used for the defence to apply.

Prohibited Methods

The following methods of physical discipline are never permitted:

• Using objects such as belts, rulers, or other implements
• Striking or slapping a child on the face or head
• Force administered in anger or in retaliation
• Force that is degrading or inhumane

Only a bare hand may be used to discipline a child physically.

Limitations for Teachers

Teachers cannot use force for physical punishment under any circumstances. However, teachers may use reasonable force in appropriate circumstances, such as removing children from classrooms, separating children who are fighting, or securing compliance with instructions.

How Have Courts Applied These Rules?

Legal terms like “reasonable force,” “transitory and trifling,” and “corrective force” can be difficult to define in practice. Different judges may interpret these terms differently depending on the facts of each case. The following examples illustrate how courts have ruled in actual cases.

Cases Where Parents Were Found Not Guilty

Father spanking 8-year-old (R. v Boyd, 2004): A mother observed bruising on her child. The father said he spanked the boy 3 times after the boy yelled at his uncle and father. The Court could not determine that the bruises were caused by the spanking and found the spanking to be reasonable corrective force.

Father spanking 6-year-old (R. v. A. (M)., 2011): The child was screaming and woke up her brother. The father told her to stop screaming, or he would spank her. When she continued screaming, the father spanked her bottom two or three times. The Court found the spanking to be a reasonable corrective force.

Cases Where Parents Were Found Guilty

Man striking 16-year-old (R. v. Keizer, 2019): A man struck a 16-year-old in the face with an open hand. The Court found Section 43 did not apply because the punishment was motivated by anger. Additionally, both corporal punishment of a teenager and a slap to the head are unreasonable.

Father spanking 3-year-old (R. v. R. (T.J.), 2006): The father found his three-year-old had removed her diaper and wiped faeces on herself, her bed, carpet, and dresser. He spanked her 3 times on the buttocks, causing serious bruising with broken skin and blood vessels. The Court found the force was neither transitory nor trifling as it resulted in marks and injuries, and was administered out of anger.

Mother spanking 10-year-old with ADHD (R. v. L. (T.N.), 2016): The child was acting unruly, and the mother spanked him while holding him down, screaming in his face as she forcibly rolled him across the floor. The Court found the force was unreasonable and did not serve an educative purpose.

Father spanking 6-year-old (R. v. L. (J.R.), 2013): The child kicked his brother’s toy. The father pulled down the child’s pants and spanked him 2-3 times. Two days later, the child had red marks of a hand imprint on his body. The Court found that the spanking was administered out of anger and frustration, not for correction, and that the force was not trifling or transitory.Parents using a belt on a 14-year-old (R. v. Z. (L.E.)., 2010): Following a verbal altercation where the 14-year-old grabbed a kitchen knife, the mother grabbed her wrist, pinched her arm, and pulled her by the hair into another room. The father then struck the 14-year-old’s exposed bottom with a belt three times. The Court found both parents guilty of assault for the strapping with the belt, though charges for the pinching and hair pulling were dismissed.

What Happens If You Are Charged With Assault?

If the physical punishment you administered exceeds what the law allows, you could be charged with assault. The consequences can be significant.

The Investigation Process

Before you are charged, police may ask for your side of the story. It is important that you do not provide any information until you have spoken to a lawyer. Even if you are completely innocent, statements made to the police can be used against you.

Release Conditions

If charged, you may be released on conditions that significantly impact your family life. These may include:

• A “no contact” order with the child, other family members, and witnesses
• A “no-go” order prohibiting you from living at or visiting your home

A criminal defence lawyer can negotiate with the Crown prosecutor to vary or remove these conditions where appropriate.

Court Process

Your case will proceed through court appearances dealing with disclosure, negotiations, and scheduling. Depending on your case and negotiations with the Crown, your matter will either be stayed or withdrawn (“dropped”), proceed to a resolution, or proceed to trial.

Is There Debate About Section 43?

Yes. Some have called for an end to any form of physical punishment of children and youth in Canada, which would require repealing Section 43.

Those who defend Section 43 argue that while abuse is never justifiable, minor physical punishment as a means of disciplining a child is circumstantially acceptable. They contend that individuals should not be subject to criminal prosecution for using reasonable force to discipline their children.

The provision remains law in Canada, but its application is strictly limited by the Supreme Court’s guidelines.

Have You Been Charged With Assaulting a Child?

If you are facing assault charges related to disciplining a child, the stakes are extremely high. A conviction can result in a criminal record, impact custody arrangements, and have lasting effects on your family.

Pyzer Criminal Lawyers has over two decades of experience defending clients facing assault charges throughout Toronto and the GTA. We understand the complexities of Section 43 and can help you navigate this difficult situation. Contact us at (416) 658-1818 for a free, confidential consultation to discuss your case.