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CTF News Service
Recently, Canadians have been subjected to misleading information surrounding school discipline and Section 43 of the Criminal Code. Section 43 of the Criminal Code does not sanction or condone child abuse. The Canadian Teachers' Federation (CTF) opposes the use of corporal punishment and has extensive policy supporting the right of children to be protected from abuse.
Why then does CTF support the retention of Section 43? Section 43 does not confer a right to use force, nor is it a licence to hit children. It provides a shield to various classes of persons, including teachers, when the use of force by way of correction is justified.
Section 43 states: "Every school teacher, parent or person standing in the place of a parent is justified in using force by way of correction towards 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." In order for a teacher to use this section as a successful defence against an assault charge, it is necessary that the misconduct of the student justify the use of force, and that the force applied "not exceed what is reasonable under the circumstances."
Jurisprudence has evolved considerably over the years. Court decisions are generally based on the evolution of societal norms regarding what is reasonable force under the circumstances. These norms have become increasingly more child-centered. The right of the child to protection from abuse is an issue that must be tackled from much broader social considerations than one section of the Criminal Code. There is no evidence to indicate that the existence of Section 43 is a root cause of child abuse or that it encourages abuse of children. Courts continue to insist on both justification and reasonableness in evaluating whether or not the use of physical force by teachers in a given situation is warranted. A significant number of teachers who have attempted to invoke Section 43 as a defence were nevertheless convicted of assault in instances where the courts found that the force used was unreasonable under the circumstances.
Teachers deal with many situations during the course of a school day in which physical intervention, be it only a restraining hand, may be the surest and quickest way to control unruly behaviour and to prevent young people from doing harm to themselves or each other. A teacher who could not put out a hand to check a rush for a door or a place at a cafeteria table, to stop a fight or a bullying assault, or to prevent damage to property, would be hard pressed to maintain the degree of order necessary to maintain a safe and appropriate school and learning environment.
Any overt action to lessen the authority of teachers would only exacerbate an already serious problem. In survey after survey, teachers indicate that student discipline and problems of violence in the school are on the rise.
The repeal of Section 43 would send the wrong signal to students and teachers. Students who are abusive to their peers and in some cases to teachers, would receive a message that such behaviour is more likely to be tolerated in the future. Teachers would be more vulnerable to the threat of prosecution and less likely to intervene in, and more likely to ignore, situations that require immediate action. There would likely be an increase in the need for police intervention in school situations as well as a substantial increase in the number of cases in which teachers would be subject to prosecution. It is important to understand the best case scenario for a teacher accused of using excessive force toward a pupil is a verdict of "not guilty" usually after lengthy court proceedings. One is never found innocent by a court of law.
Some contend that a few individuals have used Section 43 successfully as a defence for the use of excessive force. This is not an argument for its repeal. As with any law, a bad judgement does not mean a law is defective. Section 43 remains an essential protection for both students and teachers because it does not apply exclusively to corporal punishment, which the CTF opposes. Numerous situations arise on a day-to-day basis within schools that affect the quality of the learning environment and the safety of students.
Such situations include
- the need to protect students or teachers when a fight occurs at school, including restraining students if necessary;
- escorting an uncooperative student to the principal's office;
- removing a disruptive student who refuses to leave the classroom or the school itself;
- placing a young student on the bus, in a situation where that student has been on a field trip and refuses to return to the bus;
- restraining a cognitively impaired student; and
- intervening in a potentially disruptive situation to prevent escalation into something more dangerous.
