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.


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


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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.