Flora Moore was punished for playing around while waiting in line for the lunchroom. She was picked up by the back of her neck, kicked in the buttocks, and then taken to ‘the room’. [1] When she returned she had strap marks on her body and severe blisters on her hands. [2] Sadly, Flora’s story is not unique. Unsurprisingly, the mindset that corporal punishment against children was an acceptable practice ran rampant within Residential Schools. Child neglect was institutionalized, and students became victims of physical abuse. [3]
These stories often feel distant and foreign to our generation. However, the reality is that Canadian educators still have legal authority to use physical force when correcting a child’s behavior in school.
In fact, there have been various justifications for the use of force within educational centers throughout history. [4] Whether it was to ‘secure and restore order, discipline the body and motivate the mind, imbue religious and moral lessons, or punish and prevent aberrant behavior, governments and educators have commonly believed that corporal punishment was righteous and efficient’. [5]
In the 1860 case of R v Hopley, Lord Chief Justice Cockburn held that corporal punishment of children ought to be limited to moderate chastisement. [6] Hopley was a tragic case where a 14-year-old schoolboy was beaten so severely by the schoolmaster that he died due to exhaustion from severe blood loss. Hopley was convicted of manslaughter and sentenced to four years.
But the corporal punishment of children was not outlawed! When Canada enacted its own Criminal Code in 1892, corporal punishment of children became part of Canadian law as a defence to assault involving a child. And the provision remains today. Section 43 of the Criminal Code of Canada states that “every school teacher, 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.” [7]
In the 2004 decision of Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), the Supreme Court of Canada attempted to reconcile what “force” is reasonable under the circumstances. [8] The Court held that there are adequate procedural safeguards to protect the child’s interest because the child is represented at trial by the Crown. [9] The “Crown” embodies the government and the government’s interests and on some level may even represent society’s general interests.
Without degrading the role of the Crown, it's questionable how the Crown can adequately represent a child’s interest. How do they know what that child’s interest is? Additionally, significant concerns arise when the Crown is the gatekeeper for Indigenous children’s interests. Given the trauma caused by the Crown in relation to Residential Schools, I would ask you, dear reader, to consider whether it is possible for the Crown to properly represent the interests of Indigenous children.
Despite Parliament’s decision in 2001 to repeal section 44 of the Criminal Code (the use of reasonable force by the master of a ship to maintain good order and discipline), section 43 has remained untouched. [10] Our children remain at the mercy of educators to determine what amount of force is deemed reasonable in the circumstances,[11] and ultimately are the only legal “class of Canadians that can be legally assaulted in the name of correction.” [12]
Despite the belief that section 43 of the Criminal Code is no longer in effect, in 2019 a Quebec Court acquitted an educator for allegedly assaulting two children, in the name of correction. [13]
Our children deserve better.
Until next time,
Team ReconciliACTION YEG
[1] Truth and Reconciliation Commission, The Final Report of the Truth and Reconciliation Commission of Canada, Canada’s Residential Schools, The History, Part 2 - 1939 to 2000, vol. 2 (Canada: McGill-Queen’s University Press, 2017) at 367.
[2] Ibid.
[3] Truth and Reconciliation Commission, The Final Report of the Truth and Reconciliation Commission of Canada, Canada’s Residential Schools, The History, Part 1 - Origins to 1939, vol. 1 (Canada: McGill-Queen’s University Press, 2017) at 162.
[4] Repeal 43 Committee, “The Law”, online: Repeal 43 Committee <http://www.repeal43.org/the-law/>.
[5] Ibid.
[6] Ibid.
[7] Criminal Code, RSC 1985, c C-46, s. 43.
[8] Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76.
[9] Ibid.
[10] Supra note 4.
[11] See Paul Axelrod, “Banning the Strap: The End of Corporal Punishment in Canadian Schools” (January 6, 2011), online: EdCan Network <https://www.edcan.ca/articles/banning-the-strap-the-end-of-corporal-punishment-in-canadian-schools/>.
[12] Ibid.
[13] R v Nasri, 2019 QCCQ 2925, 2019 CarswellQue 4545.
Artwork: "Stop", by Amanda Wagar, 2021.