Letter addressed to Minister Lametti on the repeal of s.43 of the Criminal Code of Canada
August 18, 2020
The Honourable David Lametti, P.C., Q.C.
Minister of Justice and Attorney General of Canada
House of Commons
Ottawa, Ontario K1A 0A6
Re: Recommendation – Repeal of s. 43 of the Criminal Code of Canada
I am writing to you to share my concerns with s. 43 of the Criminal Code. I believe this is a vital opportunity for the Government of Canada to respond to the Truth and Reconciliation Commission, and repeal s. 43, which is #6 on the list of Calls for Action. Repeal is an essential step to substantially reduce the most common form of violence experienced by children--physical punishment.
Despite the modifications introduced by the Supreme Court of Canada in 2004, the law as it stands still permits an adult to strike a child. This is clearly discriminatory and nothing less than a licence to bully someone who is smaller, weaker, and more vulnerable.
I recommend the repeal of s.43, which is an outdated section of the Criminal Code, codified in 1892. Section 43 reads as follows:
CORRECTION OF CHILD BY FORCE
43. 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. R.S., c. C-34, s. 43.
Section 43 is an expression of a society that bears little resemblance to the one we enjoy today. While young persons who are not fully mature require the support, protection and guidance of adults until they themselves reach adulthood, the authority exercised should not include physical punishment.
The wording of this section of the Criminal Code includes the word ‘reasonable.’ This is a subjective term, which is open to interpretation. Banning the physical punishment of children would eliminate any ambiguity or confusion as to what sort of physical discipline is permissible and send a clear message that child abuse will not be tolerated in Canada.
As you know, organizations both within and outside the country, including the United Nations, have been advocating for many years for the Government of Canada to repeal s. 43, and there have been 17 Private Member’s Bills in the House and Senate to do so, yet they have been all defeated. To date, 59 other countries have legally prohibited physical punishment of children in all settings (homes, schools, alternate care). Canada will soon face another formal review by the UN Committee on the Rights of the Child of our compliance with the obligations associated with our ratification of the Convention on the Rights of the Child.
It is agreed that striking a child does indeed infringe upon their rights. However, the most convincing argument against the physical punishment of children is the long-term physical, mental and emotional trauma it can cause.
It is well established in the scientific literature that early childhood trauma (ECT) can have lifelong consequences for victims. Many people in our society suffer from mental health issues, some of which are the result of childhood trauma. Even if no physical injury is sustained, a child’s emotional and cognitive development can be adversely affected, particularly if the act of physical punishment is repeated. Prosocial outcomes, such as educational achievement, rewarding employment and satisfying interpersonal relationships can also be casualties of ECT. Yet another consequence can be substance abuse.
What is worse is the phenomenon of intergenerational cycles of violence begetting violence. Far too many Canadians, particularly many Indigenous people, are living with the consequences of intergenerational trauma.
I believe the government should provide guidance for non-custodial adults, such as teachers, on how to manage children who have behavioural challenges, due either to temperament or to a condition such as autism. Although striking a child is clearly impermissible, teachers may find themselves in a position of needing to restrain children in danger of harming themselves or others. I recommend the development of national standards and guidelines for teachers and other non-custodial adults be developed by Justice Canada, in consultation with Provincial and Territorial Attorneys General, and health and education Ministers.
I remain available to discuss this issue with you at your convenience and I await your reply.
Federal Ombudsman for Victims of Crime