Lawyer and Teacher Associations Oppose Legislation to Ban Spanking

School children in a classroom, in a file photo on Nov. 27, 2019. Danny Lawson/PA Wire

Lawyers and schoolteachers are asking Parliament to reject proposed legislation seeking to ban the spanking of children.

The Canadian Teachers’ Federation (CTF) and Quebec Defence Lawyers Association (AQAAD) have written to the Senate’s legal and constitutional affairs committee to say a proposed bill to repeal the corporal punishment provision of the Criminal Code of Canada would cause major problems for teachers and parents.

Senate Bill S-251, sponsored by Senator Stanley Kutcher in 2023, aims to repeal Section 43 of the Criminal Code, which allows parents, teachers, and guardians to correct a child “if the force does not exceed what is reasonable under the circumstances.”

The CTF says there are times when teachers must use physical force to restrain children from violent or harmful behaviours, as first reported by Blacklock’s Reporter.

“We are concerned by the very real possibility, that should Section 43 be repealed without a Safe Schools Amendment, classrooms will become more unsafe at a time when we are seeing increased violence in classrooms throughout Canada,” the CTF said in its brief to the Senate in November 2023.

The federation pointed to a 2023 Elementary Teachers’ Federation of Ontario (ETFO) study which indicated that 77 percent of its members have either personally experienced violence or witnessed violence against another staff person. Two-thirds of those surveyed said the severity of violent incidents has gotten worse.

“Almost all members are feeling the negative impacts on teaching and working conditions, with 87% of members agreeing that violence in elementary schools is ’making teaching more difficult‘ and 83% saying that violence ’interferes with classroom management,’” said the ETFO survey.

“Without replacement for Section 43, we anticipate an increase in the number of assault charges filed and prosecuted,” the CTF said.

It gave examples of situations where a teacher might not take action if Section 43 is repealed, such as “restraining a student whose actions are posing harm to themselves or others,” or “escorting an uncooperative student out of the classroom, to the principal’s office.”

“As a precaution, teachers would be advised to not intervene in situations noted above. This could result in more severe injuries to students and more calls to police.”

The CTF added that simply being charged could be career-ending for a teacher, even if acquitted.

The brief cited various cases where Section 43 of the Criminal Code had protected teachers who had to intervene, ranging from breaking up a fight between students to handling a kindergartener who was throwing blocks in a dangerous way.

‘Reasonable and Minimal Force’

The Quebec Defence Lawyers Association told the Senate committee that passing Bill S-251 as is would expose parents and teachers to criminal convictions for even minimal amounts of force.

“It is impossible to imagine how a parent could successfully foster their child’s development without ever applying reasonable and minimal force to persuade, constrain or protect the child,” the association said in a brief in June.

The lawyers gave two examples of parents or guardians using minimal force in a challenging situation who could have been found guilty without Section 43’s protection.

“A court acquitted a father who had to grab his teenage daughter by the arms and force her onto the sofa to calm her down when she was breaking an electronic device in a fit of anger,” the association said.

“In another case, a primary schoolteacher seeking to properly manage her class pulled an overexcited pupil from the classroom by the arm. Without this defence, the father and the teacher would have been found guilty.”

Those in favour of banning corporal punishment altogether have also written to the Senate  in support of Bill S-251.

The Native Women’s Association of Canada (NWAC) said it supports banning spanking, noting that corporal punishment was used in the residential school system.

“For context, the TRC’s [Truth and Reconciliation Commission] Call to Action 6 explicitly calls for the repeal of section 43. The specter of residential schools looms large behind this Call, as Indigenous children suffered severe beatings in residential schools,” the association said in a brief in June 2023.

The group added that parents or caregivers using reasonable levels of force—such as restraining an uncooperative child in a car seat—would very unlikely be charged.

“These concerns are likely unwarranted, given the context. These types of necessary protective actions are not corporal punishments, and moreover are unlikely to be considered assault in the circumstances. They would therefore be unlikely to result in criminal charges against parents,” NWAC said.

The Quebec lawyers are not as sure that would be the case.

“Prosecutorial discretion is subject to internal guidelines that are not enacted by Parliament and that vary across the provinces and territories. The result would be inconsistent application of criminal law across the country,“ the lawyers said. ”Furthermore, prosecutors are not required to give reasons for their quasi-judicial decisions to approve laying a charge.”

Bill S-251 passed second reading in the Senate in June 2023, while an identical bill, C-273, is awaiting third reading in the House of Commons.

New Democrat MP Peter Julian, sponsor of Bill C-273, has told the Commons that countries like Iran, Saudi Arabia, and Russia still allow physical punishment of children.

Mr. Julian said his own parents “believed very strongly that physical punishment was not justified. It was a blessing to be in that family.”

His bill passed second reading on Feb. 14 by a vote of 209 to 115, with Conservative MPs opposed.

The Supreme Court in 2004 upheld the current law as constitutional.