section_43 notme Jan 30/04 Supreme Court of Canada rewrites section 43 In a split 6 to 3 decision, the Supreme Court rewrote s. 43, and then held it to be constitutional. The majority decided that this broad 1892 defence allowing parents and teachers to use reasonable force for correcting children doesn't allow teachers to use corporal punishment, or parents to hit a child with objects, or on the head, or strike a child under age 2 years or over age 12, and to use only "minor, transitory or trifling" force to correct children between the ages of 2 and 12. Dissenting Justice Louise Arbour held that constitutionality of s. 43 must be determined on the section as it stands; not as rewritten. Nothing in the statute suggests that Parliament intended such conduct to be excluded from s. 43. As it stands, she held it's too vague to give fair warning to the public as to what it means. It therefore violates s.7 of the Charter under which no one can be deprived of security of the person except in accordance with principles of fundamental justice. One of these principles is that a law must not be vague. Parliament, not the court is the proper forum to deal with s.43. The section should be struck down. Dissenting Justice Marie Deschambes agreed with Arbour J. but also held that s. 43 violates s.15 of the Charter guaranteeing equal protection and benefit of the law without discrimination based, inter alia, on age. The court, she wrote, can't substitute its own views for those of Parliament. When interpreted according to the intention of Parliament, s. 43 violates s. 15 and can't be justified under s. 1 of the Charter as a reasonable limit prescribed by law in a free and democratic society. Section 43 should be struck down. Dissenting Justice Binnie also agreed that s. 43 violates s. 15 of Charter. In even stronger language, he stated that stripping children of protection from assault makes them second-class citizens. It is destructive of dignity from any perspective. Physical integrity, he wrote, is a fundamental value applicable to all. He held, however, that the "salutary effects" of s. 43 "exceed its potential deleterious effects" since, in his view, children are protected under child welfare legislation. But, he held, section 43 should be struck down for teachers, as their relationship with pupils is closer to master-apprentice abolished by Parliament in 1955. -http://www.repeal43.org/news.html 040211 ... notme Section 43 Correction of Child by Force 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., 1985, c .C-4 Historical Background to Section 43 Section 43 of the Criminal Code is a defence to assault that justifies the use of reasonable force for the correction of children by teachers, parents or persons standing in the place of parents. It is based on the idea that corporal punishment is morally right and necessary for training and educating children in the home and school. This idea has its roots in the past when corporal punishment of adults as well as children was legal and commonly prescribed for offences ranging from minor misdemeanors to serious crimes. Flogging, whipping and other methods of inflicting pain were routinely used in prisons, mental institutions and the military in the name of order and discipline. Flogging in the British navy was only abolished in1879 and in the British army in 1881. Until1972, our Criminal Code allowed persons convicted of certain offences to be whipped with a cat-o'-nine tails. Corporal punishment of wives, servants and apprentices Corporal punishment for keeping order and discipline in the home, as in society at large, also has its roots in the past. "Domestic chastisement" as it was called in English common law allowed a husband to correct his wife by "moderate" beating on the basis that he was responsible for her behaviour. It allowed corporal punishment of domestic servants by their employers and of apprentices by their masters. Such domestic chastisement was legal and commonplace until the nineteenth century. Corporal punishment of children By the eighteenth century, English common law had evolved to limit corporal punishment of children to what was considered reasonable. This standard was applied by judges in the rare instances where assault charges were laid against parents or teachers. Reasonable corporal punishment continued to be considered an essential part of learning, discipline and moral development and was common in all classes of society. It included harsh beatings in the home and school, including ritualized beatings in the presence of other pupils at private schools for Britain's elite. This became the model for other English schools - many of which continued this kind of discipline into the 1950s. By the nineteenth century, the common law power to administer reasonable corporal punishment for correction became part of English statute law as a specific defence to assault. When our criminal law was codified in 1892, this defence was simply incorporated as part of our first Criminal Code. It has remained virtually unchanged by Parliament since then. Children are now the only remaining class of Canadians that can still be legally assaulted in the name of correction. The time has come to eliminate this defence altogether. Back to top Judicial Attitudes to Corporal Punishment The attitudes of Canadian courts toward the corporal punishment of children is indicated by the comments of judges in acquitting parents and teachers of assault under section 43. Comment from 1927 and 1951 Anatomy specially designed for punishment A Saskatchewan court in R. v. Metcalfe(1927) acquitted a school principal for striking a 10 year old girl on the buttocks with sufficient force to leave black and blue welts ...on that part of her anatomy which seems to have been specially designed by nature for the receipt of corporal punishment. Hitting with iron bar and kicking to the ground go too far The court in the Metcalfecase could find no decision in which a teacher had been found guilty of assault unless the assault was with a dangerous weapon such as an iron bar etc. or where the pupil is kicked to the ground or otherwise ill treated. Legal scholars from earlier centuries were quoted on the salutary effects of corporal punishment. Contusions and bruises not unreasonable The Quebec Court of Appeal in Campeau v. The King(1951) explained section 43 by stating: That the punishment naturally may cause pain hardly needs to be stated; otherwise its whole purpose would be lost...the mere fact that the children disciplined suffered contusions and bruises is not in itself proof of exercise of undue force. Comment from 1990 to 2001 The following comments were made by judges in recent acquittals of parents and teachers when attempting to determine the meaning of "reasonable" in section 43. Punishment causing bruises is not necessarily excessive R. v. Wheeler,Yukon, 1990 Striking with a belt is perhaps a little distasteful but is authorized by law R. v. L.A.K.,Newfoundland, 1992 Kicking and hitting an eight year old is well within the range of generally accepted punishment - mild compared to what I received as a child R.v. K. (M),Manitoba, 1993 One blow only - no permanent injury R. v. Condon,Newfoundland, 1993, (teacher) Teacher's action may be disgraceful but it was not excessive R. v. Bouillon,Quebec, 1993 (teacher) Life and limb not endangered by using a belt R. v. Atkinson,Manitoba, 1994 Slap to head not per se excessive force R. v. D.W.,Alberta, 1995 A hard body blow was necessary for a submissive response R. v. Pickard,Quebec, 1995 Community standards may not be relevant in judging force R. v. Peterson,Ontario, 1995 Reasonable standard of force is elusive R. v. J. (O),Ontario, 1996 Instilling respect even through fear is acceptable R. v. Wetmore,New Brunswick, 1996 (teacher) Injured dignity has corrective potential R. v. Spenard,Ontario, 1996 (teacher) Raising welts does not amount to bodily harm R. v. N.S.,Ontario, 1999 Slap had a salutary effect on behaviour R. v. Park,Newfoundland, 1999 (teacher) Section 43 does not restrict discipline to what is appropriate or proportional or that it must be a last resort R. v. Bell,Ontario, 2001 Case law recognizes and Parliament apparently sees using a belt as acceptable punishment, (judge expressed his personal view that using a belt is always unreasonable) R. v. C. (G),Newfoundland, 2001 -http://www.repeal43.org/the-law.html 040211 ... notme Feb 3/04 Our campaign to repeal section 43 will continue The Repeal 43 Committee will continue its campaign to convince politicians and the public that section 43 should be repealed. If it is not repealed, we will urge the government to initiate public consultations to evaluate and clarify the limitations imposed by the Supreme Court decision. -http://www.repeal43.org/news.html 040211 ... minnesota_chris I work in a public_school, and sometimes wish that spanking was possible. It's because the kids run the schools nowadays, the structure is all wrong. 040211 ... notme http://www.neverhitachild.org/ 040211 ... minnesota_chris it's why I don't want to work in a public school, they rarely have a credible discipline policy 040211 ... notme http://www.stophitting.com/disatschool/ http://www.stophitting.com/disatschool/alternatives.php :) 040211 ... notme http://www.nospank.net/ -This American site dealing with corporal punishment in schools has a Table of Contents of 60 chapters of in-depth articles, comments, letters, and arguments against corporal punishment by teachers. Parents and Teachers against Violence in Education (PTAVE) Alamo, Ca, US 040211 ... minnesota_chris I just want to see an effective discipline policy. As opposed to the schools in which I have worked, which lack one. Time outs can work, but sometimes don't. 040213 ... notme :) at my elementary school, the big threat was always garbage duty, for one week, for two weeks ,..for three weeks,.. (the worse the crime the more the time) thankfully i never got into trouble, i used to volunteer for garbage duty) another punishment was to copy-by-hand pages from the dictionary, "that's 10 pages for you mister!". i thought that one was cool, kinda wished i'd get in trouble so i'd have an excuse to go to the library,..(never happened though) i know the other kids really hated it. "oh no! not the dictionary! all those words!" one teacher used to hit the students with a metre stick, he was very unpopular as a result i'm glad he wasn't my teacher) 040214 ... monee end corporal_punishment 050101 ... monee repeal_43 050101 ... the delinquent formerly known as R.A.I.N. Obedience Denied. 061107 what's it to you? who go blather from