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CORPORAL PUNISHMENT

When I was a boy at boarding school in England, the motto was "spare the rod and spoil the child".  It was not uncommon to be called to the Head Master's office and be caned for various misdeeds.

School crimes as a whole were minimal compared to the disciplinary problems facing a modern school where teachers seem to have lost all rights to discipline.

Section 43 of the Criminal Code of Canada allows parents or those standing in their place, like teachers, to use corporal punishment provided it is reasonable and not physically harmful.

Recently, the Supreme Court of Canada was asked to find that the section offends the Charter of Rights.  Had the section been struck down, any form of physical punishment would have constituted an assault and thereby, a criminal offence.

To many people, any form of corporal punishment is an affront to the dignity of children and should not be allowed, but to others, reasonable chastisement without any form of brutality is justified.  The Supreme Court of Canada approved the latter course and continues to allow a very moderate use of physical punishment. 

In my humble opinion, minor use of physical punishment is both justified and useful in maintaining discipline.  Like any power, this is capable of being misused and a parent who inflicts cruel or harsh punishment, would undoubtedly be subjected to criminal sanction.

Maintaining discipline is more difficult today than it was 50 years ago with so many temptations now available to children, including drugs, so that to deprive parents and guardians of all disciplinary remedies would be totally unreasonable. 

The problem of course is where to draw the line.  A teacher, who were to invoke physical punishment, would very likely find himself in Court charged with an offence and have to prove that he has not broken the law and incur legal costs to defend himself.  A prosecution that would have been unlikely a few years ago is more probable now.  So outside the parental home where methods of discipline are badly required, corporal punishment is not likely to be used.

So whilst the Supreme Court of Canada has upheld Section 43, the likelihood of it being used outside the parental home is minimal.  Therefore, the old maxim "spare the rod and spoil the child" has little meaning today in spite of the Supreme Court of Canada.

By Herbert Fielding, Q.C.
February 4, 2004