Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, schools, penal institutions and alternative care settings.

Section 43 of the Criminal Code allows for the use of force “by way of correction”. This provision should be repealed and explicit prohibition enacted of all corporal punishment and other cruel or degrading forms of punishment in childrearing and education.

Explicit prohibition of corporal punishment should be enacted in legislation applicable to all schools, public and private, in all provinces and territories, all institutions accommodating children in conflict with the law, and all alternative care settings, including public and private day care, residential institutions, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Section 43 of the Criminal Code (“Protection of Persons in Authority”) states: “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.” A Supreme Court ruling on 30 January 2004 stated that this section justifies only “minor corrective force of a transitory and trifling nature” and that it rules out corporal punishment of children under the age of two years or over the age of 12 years, as well as degrading, inhuman or harmful conduct, discipline using objects such as rulers or belts and blows or slaps to the head (Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), file no. 29113). In Quebec, reference to a “right of correction” was removed from the Civil Code in 1994, and a number of rulings have stated that the right of correction is no longer recognised in Quebec’s civil law, but section 43 of the federal Criminal Code applies nevertheless.

Numerous bills which would repeal section 43 of the Criminal Code have failed to be enacted but continue to be introduced in a sustained campaign for law reform.

Schools

The 2004 Supreme Court judgement (see above) stated that teachers may not use corporal punishment, although they may use reasonable force to remove a child from a classroom or to secure compliance with instructions. This prohibition is not reflected in the laws of all provinces and territories. As at August 2011, corporal punishment is prohibited by law in state schools in British Columbia (1973), New Brunswick (1990), Newfoundland (1997), Northwest Territories (1995), Nova Scotia (1989), Nunavut (1995), Prince Edward Island (1993), Quebec (1997), Saskatchewan (2005), Yukon (1990) and Ontario (2009). There is no legal prohibition in Alberta and Manitoba, though policy in many school boards states that corporal punishment should not be used.

Penal system

Corporal punishment is unlawful as a sentence for crime under the Criminal Code. The relevant provisions were repealed in 1972.

Corporal punishment is unlawful as a disciplinary measure in penal institutions. We have no details of applicable law but in Quebec and presumably other provinces/territories prohibition is not explicit.

Alternative care

Corporal punishment is prohibited in child care in all states and territories except New Brunswick. In Ontario, it is prohibited in provincially-licensed childcare programmes and foster homes, and for all children receiving services from a child protection agency or other service provider licensed or approved by the province. In Quebec, as with parents, carers have no right of correction under the Civil Code, but section 43 of the federal Criminal Code applies (see above). In foster care, corporal punishment is prohibited in Alberta, British Columbia, Manitoba, Ontario and Quebec. There is no explicit prohibition in foster care in New Brunswick, Newfoundland, Northwest Territories, Nova Scotia, Nunavut, Prince Edward Island, Saskatchewan and Yukon.

Prevalence research

A 2008 study in Canada with adolescents and their parents of Caribbean and of Filipino heritage found that 78% of the 118 Caribbean parents interviewed and 42% of the 136 Filipino parents interviewed thought that they should have the “right” to physically punish their children, while adolescents disagreed. (Hassan, G. et al. (2008), “Caribbean and Filipino adolescents' and parents' perceptions of parental authority, physical punishment, and cultural values and their relation to migratory characteristics”, Canadian Ethnic Studies, vol. 40, no. 2, pp. 171 – 186)

A survey of 1,000 people in an SES/Sun Media poll on the night before the Supreme Court ruling in January 2004 (see above) found that 64% support the use of force such as spanking by parents to discipline a child, though a wide majority oppose physical force being used by others. Support for spanking as a reasonable measure was highest in the West at 71% and Ontario at 62%. The lowest support was Quebec at 47%. Only 7% supported criminal charges for parents who spank their children; 7% also said that children should be removed from homes where their parents used spanking as corporal punishment; 5% supported both these measures. (“Spanking poll backs ruling”, Winnipeg Sun, Manitoba, 1 February 2004)

In a 2001 survey, 10% of parents reported that they use physical punishment when their children break the rules. (Berger, E. (2001), National Report on Inter-Generation Abuse, Toronto, ON: Berger Population Health Monitor)

A 2002 survey found that 50% of parents reported that they or their spouse had “inflicted light corporal punishment, like a slap” on their children; 6% reported that they or their spouse had “inflicted painful corporal punishment”. (Canadian Press and Leger Marketing (2002), Child Abuse Report, Montreal, PQ: Canadian Press and Leger Marketing)

In a sample of mothers of preschoolers in Manitoba, 59% reported having used physical punishment in the previous two weeks. (Ateah, C. & Durrant, J. E. (2005), “Maternal use of physical punishment in response to child misbehavior: Implications for child abuse prevention”, Child Abuse & Neglect, 29, pp. 177-193)

Seventy per cent of mothers of preschoolers in Manitoba and Ontario reported having used physical punishment at some time; one-third of those who used it did so at least once per week. (Durrant, J. E., Rose-Krasnor, L. & Broberg, A. (2003), “Maternal beliefs about physical punishment in Sweden and Canada”,  Journal of Comparative Family Studies, 34, pp. 586-604)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee, while noting the implementation of some of the recommendations (CRC/C/15/Add.37 of 20 June 1995) it made upon consideration of the State party’s initial report (CRC/C/1/Add.3), regrets that the rest have not been, or have been insufficiently, addressed, particularly those contained in: … paragraph 25, suggesting a review of penal legislation that allows corporal punishment.

“The Committee urges the State party to make every effort to address those recommendations contained in the concluding observations on the initial report that have not yet been implemented….

“The Committee welcomes the efforts being made by the State party to discourage corporal punishment by promoting research on alternatives to corporal punishment of children, supporting studies on the incidence of abuse, promoting healthy parenting and improving understanding about child abuse and its consequences. However, the Committee is deeply concerned that the State party has not enacted legislation explicitly prohibiting all forms of corporal punishment and has taken no action to remove section 43 of the Criminal Code, which allows corporal punishment.

“The Committee recommends that the State party adopt legislation to remove the existing authorization of the use of ‘reasonable force’ in disciplining children and explicitly prohibit all forms of violence against children, however light, within the family, in schools and in other institutions where children may be placed.

“The Committee recommends that the State party further improve the quality of education throughout the State party in order to achieve the goals of article 29, paragraph 1, of the Convention and the Committee’s general comment No.1 on the aims of education by, inter alia:

d) adopting appropriate legislative measures to forbid the use of any form of corporal punishment in schools and encouraging child participation in discussions about disciplinary measures.”
(27 October 2003, CRC/C/15/Add.215, Concluding observations on second report, paras. 4, 5, 32, 33 and 45)

“Further measures seem to be needed to effectively prevent and combat all forms of corporal punishment and ill-treatment of children in schools or in institutions where children may be placed. The Committee is also preoccupied by the existence of child abuse and violence within the family and the insufficient protection afforded by the existing legislation in that regard.

“The Committee suggests that the State party 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. In this regard and in the light of the provisions set out in articles 3 and 19 of the Convention, the Committee recommends that the physical punishment of children in families be prohibited. In connection with the child’s right to physical integrity as recognized by the Convention, namely its articles 19, 28 and 37, and in the light of the best interests of the child, the Committee further suggests that the State party consider the possibility of introducing new legislation and follow-up mechanisms to prevent violence within the family, and that educational campaigns be launched with a view to changing attitudes in society on the use of physical punishment in the family and fostering the acceptance of its legal prohibition.”
(20 June 1995, CRC/C/15/Add.37, Concluding observations on initial report, paras. 14 and 25)

Universal Periodic Review

Canada was examined in the first cycle of the Universal Periodic Review in 2009. No specific recommendation was made during the review concerning corporal punishment of children but the Government accepted a recommendation concerning violence against children (8 June 2009, A/HRC/11/17/Add.1, Report of the Working Group: Addendum, para. 46) and in this context the opportunity was taken at a later stage to recommend that this includes the prohibition of corporal punishment of children (16 October 2009, A/HRC/11/37, Report of the Eleventh session of the Human Rights Council, para. 256). Examination in the second cycle is scheduled for 2013.

Analysis of legality of corporal punishment in Canada by province/territory