Summary:
Section 43 of the Criminal Code of Canada has not been repealed.
The Call to Action:
We call upon the Government of Canada to repeal Section 43 of the Criminal Code of Canada.
Analysis:
Section 43 of the Criminal Code of Canada has not been repealed.
Section 43 allows parents, caregivers and educators to use force toward a pupil or child as a means of correction, “if the force does not exceed what is reasonable under the circumstances.”
A 2004 Supreme Court of Canada decision narrowed the scope of Section 43, saying force is allowed only toward children between the ages of two and 12, must be correcting behaviour at the time it is happening and cannot be done in anger. An object, such as a ruler or belt, cannot be used and the person cannot hit the child’s head.
The court defined “reasonable” force as that which would have a “transitory and trifling” impact on the child.
In November 2017, a group of faith leaders, scholars and policy makers from across the country presented the federal government with a new Christian Theology Statement, which called on the government to act on the TRC Call to Action to repeal Section 43.
They presented the statement to Senator Murray Sinclair (former Chief Commissioner of the Truth and Reconciliation Commission), then-Minister of Justice Jody Wilson-Raybould and Crown-Indigenous Relations and Northern Affairs Minister Carolyn Bennett.
In December 2015, the federal government committed to repealing the section, in response to the TRC’s Call to Action 6, though it was unclear at the time how that would happen.
“At this point, we cannot speculate on potential legislative or policy approaches to address this issue,” said Christian Girouard, spokesman for Justice Minister Jody Wilson-Raybould. “However the government is committed to implementing all of the 94 calls to action.”
A bill to repeal the spanking law was introduced in the Senate in December 2015 but was stalled at second reading.
In March 2016, then Indigenous and Northern Affairs Minister Carolyn Bennett (now the Crown-Indigenous Relations and Northern Affairs Minister) cautioned that there may need to be a viable alternative to changing the law.
During a Standing Committee on Aboriginal Affairs and Northern Development meeting, Bennett said;
“As a family physician, I have to say there is a way of doing this that explains that in our society we don’t condone people hitting one another and then expect them not to go out and hit other people. I think it’s also up to the judicial application of this, that means that if you’re stopping a kid walking into traffic, or all of the examples that are used as to why we can’t do this, we can find a way through that honours the TRC calls to action but also puts it in a practical way where children can be kept safe.”
She also said the federal government is consulting experts on the issue.