In a case that has garnered much attention and has shone a spotlight on the issue of acceptable parental discipline, NFL star running back Adrian Peterson of the Minnesota Vikings was indicted by a Texas grand jury on charges of Injury to a child arising out of his use of a switch to spank or, in Peterson’s words, to “whoop” his four-year-old son.
The indictment came after law enforcement was advised by a doctor that the child had received visible cuts and bruises to his back, buttocks, legs, hands and scrotum after the incident.
Since his indictment, Petersen expressed “how sorry I feel about the hurt I have brought to my child and said that he “caused an injury that I never intended or thought would happen.” His lawyer said that Peterson employed the same parenting techniques that Peterson had “experienced as a child growing up in east Texas.”
Peterson’s indictment raises the controversial subject of how much discretion parents have or should have when it comes to physically disciplining their children and whether such conduct is either advisable or illegal. In Canada, the line between allowable discipline and criminal assault can be a fine one.
Criminal Code Allows Physical Discipline of Child If Force is “Reasonable”
Pursuant to Section 265 of the Criminal Code of Canada, a person commits an assault when, without the consent of another person, he applies force intentionally to that other person, directly or indirectly.
Section 43 of Canada’s Criminal Code expressly offers parents and teachers a defence to what would otherwise be an assault charge when they use reasonable force to discipline a child. Section 43 reads:
“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.”
The Supreme Court of Canada, in its 2004 decision inCanadian Foundation for Children, Youth and the Law v. Canada (Attorney General), upheld the constitutionality of Section 43. The Court noted that Section 43 maintains a risk of criminal sanction if force is used for non-educative or non-corrective purposes, and limits the type and degree of force that may be used.
Specifically, the Court said that the words “by way of correction” mean that the use of force must be sober and reasoned, address actual behaviour, and be intended to restrain, control, or express symbolic disapproval. The child must have the capacity to understand and benefit from the correction; as such, Section 43 does not justify force against children under two or those with particular disabilities.
Additionally, the Court held that the words “reasonable under the circumstances” in Section 43 mean that the force must be transitory and trifling, must not harm or degrade the child, and must not be based on the gravity of the wrongdoing. Reasonableness further implies that force may not be administered to teenagers, as it can induce aggressive or antisocial behaviour, may not involve objects such as rulers or belts, and may not be applied to the head.
Under that standard, it would appear that Peterson’s use of a switch combined with the severity of the injuries to his child would go beyond the defense provided by Section 43 if he had taken those actions in Canada.
The law in Texas and in many U.S. states give more leeway to parents on the issue of corporal punishment than does the Criminal Code of Canada. The outcome of Peterson’s case remains to be seen, and opinions as to the wisdom or appropriateness of corporal punishment will continue differ, but the line between legal parental discipline and a criminal offence in Canada can be a fine one for parents to walk.
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Criminal lawyers Bruce Engel and Elena Davies have represented individuals and businesses charged with hundreds of different offences throughout Canada for more than two decades. From the start of a criminal investigation to the close of a trial, we will take a balanced and forceful approach to your defence. We have the experience and know-how to effectively navigate the constantly changing justice system in Canada.
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