Canada: The "Teachers' Defence": Section 43 In The Modern World

Last Updated: January 23 2013
Article by Brian Vail, QC

An increasing number of teachers are being criminally charged with assault in Alberta. Sometimes these allegations are exaggerated or maliciously brought by students or parents to advance a hidden agenda. In many of these cases, it is not disputed that the teacher had some physical contact with the child.

Not all physical contact by a teacher with a child is unjustified or criminal. Teachers charged with assault have the same defences available to them as anybody else, including self-defence, defence of others, etc. However, teachers and parents have an additional defence- s. 43 of the Criminal Code1 , the so-called "parent and teacher defence." It is the most important justification for a teacher's application of force to a student. The question for the criminal court in most assault cases is whether or not s. 43 applies to exonerate the teacher.

Physical contact of various types is common between teachers and students in modern schools. Teachers who wish to remain employed and stay out of the criminal justice system need to understand the difference between acceptable and unacceptable contact. It is important for teachers in the trenches to understand how the offence of assault is defined and the limits of the s. 43 defence.

The following will summarize how the modern concept of s. 43 has developed over time.

Assault

Common assault is defined in s. 265 of the Criminal Code. There are three ways in which assault can be committed.

The most common involves the physical application of force2 , the elements of which are

  1. the application of force to another person, directly or indirectly;
  2. without that person's consent.

The application of force must be intentional. Accidentally bumping into someone does not count. However, the motive behind the touching is irrelevant. If the application of force in question was intended, it does not matter how well intentioned a teacher may have been in applying it.

The degree of force applied does not matter. Any touching, however minor, is sufficient, including taking a child by the arm or patting a student on the back.

The consent of the person touched can be expressed or implied. For example, it is implied that hockey players consent to body checks during a game and, in some cases, even those beyond the rules of the game. However, in teacher-student situations, a child's consent is usually absent. Students are not generally willing to be led to the office for discipline.

A second way of committing common assault is by attempting or threatening, by an act or gesture, to apply force to another person if that person believes, on reasonable grounds, that the toucher has the ability to carry out the application of force.3 It is extremely rare for a teacher to be charged with assault in the absence of actual physical contact, but it has happened in Alberta in the recent past.4

For the sake of completeness, I note that a third way of committing assault is to openly wear or carry a weapon (real or imitation) while accosting or impeding another person, or by begging.

There are aggravated forms of assault, which can involve more serious penalties. They all involve the elements of common assault plus additional factors. These include assault with a weapon,5 aggravated assault6 (which is assault plus wounding, maiming, disfiguring or endangering the life of the victim) and sexual assault7 (assault with a sexual element8 ).

Thus, every time a teacher takes a student by the hand or arm, pushes or physically directs a student, or has any other form of intentional contact, an assault is established. In the majority of cases when a teacher intentionally contacts a student, s. 43 is the only thing standing between that teacher and a criminal conviction.

The development of the moderns. 43

Section 43, as it currently reads, provides 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.

The parent-and-teacher defence has been part of Canadian criminal law since 1892:9

Section 43 was first codified into our criminal law in 1892 and is based on English common law. In addition to permitting parents and teachers to "correct" children, the English common law also allowed the use of corporal punishment by husbands against wives, by employers against adult servants, and by masters against apprentices. By the time of codification of the criminal law in 1892, the right to use corporal punishment on wives and servants was no longer legally justified. However, the right of masters to use corporal punishment against apprentices remained in the Criminal Code until1955. The corporal punishment of criminals, by whipping, was permitted up until 1972. [footnotes omitted]

The wording of the section has not been altered over time as it relates to teachers, though its interpretation and application have radically changed, along with society's values. The concept that sparing the rod spoils the child has been around since the Bible was written.10 As late as 1994, between 70 and 75 per cent of Canadian parents admitted to using physical punishment with their children.11

However, there can be no doubt that the attitude of Canadian society to the application of corrective force to children has been changing dramatically in recent years. When I went to school starting in the early 1960s, most Alberta school districts expressly allowed corporal punishment, including the infamous strap. Various forms of corrective physical force by parents and teachers were approved of and held by the courts to be protected by s. 43, including slapping faces,12 strapping bare buttocks with a belt leaving welts13 and even tying up disobedient children.14 Meanwhile, the opinion that the application of physical force to correct children should be prohibited has been gaining strength.

The matter came to a head in Canada in the first part of this century, culminating in the Supreme Court of Canada's decision in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney Genera/).15A children's rights group, the Canadian Foundation for Children, Youth and the Law (CFYL), challenged the constitutionality of s. 43 in court.

They argued that s. 43 should be stricken down entirely as offending the Canadian Charter of Rights and Freedoms.16 The CFYL tendered the opinions of a plethora of experts to the effect that physical discipline of children is ineffective, even harmful or abusive. In defending s. 43, the federal government decided not to challenge those expert opinions but argued that s. 43 was constitutional, properly interpreted and applied.

The Supreme Court held that s. 43 is constitutional but laid down the modern legal rules for its application, based on what the Court found to be the current "social consensus."17 The Court rejected the CFYLs argument that s. 43 is unnecessary because police and prosecutors could be trusted to exercise their discretion not to prosecute minor corrective contacts between teachers and parents and children.18 I can assure you that s. 43 is still necessary because police and prosecutors do not always exercise that discretion. I have had to defend teachers on assault charges for the most minor physical contacts, both before and after the CFYL case was decided. Of note, the Supreme Court held that s. 43 no longer protects teachers in employing corporal punishment and defined the limits of force teachers can apply to direct or correct a child (falling short of corporal punishment). Much of the case law prior to the CFYL case has been relegated to the dustbin of history.

Part 2 to follow in the next issue of Leadership Update.

Originally published in Leadership Update, Volume 9, Number3

Footnotes

1. R.S.C. 1985, c. C-46

2. Criminal Code, s. 265(a)

3. Criminal Code, s. 265(b)

4. R. v. Rasmussen; unreported, 24 June 2004, Docket No. 031476344P101001-003 (Alta. P.C.)

5. Criminal Code, s. 267

6. Criminal Code, s. 268

7. Criminal Code, s. 271

8. R. v. Chase [1987] s S.C.R. 293

9. S D Greene (1999) Criminal Law Quarterly, 288

10. Proverbs 13:24,22:15,23:13-14 and 29:15

11. S D Greene (1999) Criminal Law ~arterly 288, citing P Newal paper at the Conference on Children and the European Union, Stockholm, April1994

12. R. v. WOod (1995), 176 A.R. 223 (Alta PC); R v BaJ [2000] A.J. No. 1685 (Alta PC)

13. R. v. DuPerron (1984) 16 C.C.C. (3'd) 453 (Sask CA)

14. R. v. Levesque, 2011 ABQB 822

15. 2oo4 sec 4

16. Sections 7, 12 and 15

17. at !!38, 46

18. at !!59-62, 68

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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