Educators too can invoke the right to correction of a child, says a judge

An educator in a school daycare service can, like a teacher, invoke the “right of correction” defense, which allows in certain circumstances the use of reasonable force to correct the behavior of a child without being convicted of assault.
This is the conclusion of the Judge of the Court of Quebec Sonia Mastro Matteo, in a decision made this spring.

She was to try a child care worker accused of assaulting two children aged six and seven in 2017.

The woman admitted to taking both children by the arm to get them out of the classroom when they were heckling or to sit on a chair when they did not follow the instructions. She says that she also pressed the face of her hand to their faces so that they look towards the wall and not towards their friends. The two children are the ones who bother most in her group, she added.

The judge summarizes the testimony of the woman: “According to her, the trigger occurs on November 30, 2017. That day, X and Y speak and grow. First, she warns them, but they do not listen. She takes them by the arm to bring them to the chair facing the wall. They turn around and call their friend Z. She then takes the face of her hand to turn their heads to the wall. This is the only time she touches the plaintiffs’ faces. That’s when Z says that she baffles her friends too much and will tell her mother. ”

The educator, however, denies the accusations of the children who say she slapped them, took their faces in her hands to look at her and pretend to throw an object at them. Another child who testified talked about slapping and slapping, and mentioned that the teacher pulls the children by the arm.

In addition to denying the assault, the educator has invoked section 43 of the Criminal Code in defense: it provides that parents, teachers or any person who replaces the father or mother, are justified in using the force to correct a pupil or child, provided that the force does not exceed the reasonable extent in the circumstances. This can be done to control a child, to protect him or to protect other children.

As the case of the teacher was already provided for in the Code, it remained to be seen whether an educator in day care could also use it for the purposes of discipline.

Judge Mastro Matteo is of the opinion that yes.

Because she is not just a babysitter: “The tasks and role of the accused as defined in these documents demonstrate that she provides services that go far beyond the mere supervision of children.”

Its role requires stimulating the cognitive development of the child through the programming of educational activities. Her contribution is complementary to the educational project of the school, explains the magistrate, who believes that given these functions, it is covered by the notion of “teacher” in the Criminal Code that allows to invoke the defense of section 43.

The judge also holds that not everything is allowed: the force must be reasonable and must allow the child to learn from the situation. There is no question of severe spanking, using objects such as a belt or a ruler, or hitting a child’s head or slapping him.

And here, although the testimonies of the children and of the educator are divergent on certain points, and that their credibility is sometimes questioned, it retains that the force employed by the woman had been light, not humiliating, and aimed to respect the rules.

The educator was acquitted.

A court-issued non-publication order prohibits the identification of children or any information that establishes their identity.

Controversial provision

This section 43 defense is a controversial provision of Canadian criminal law.

As the society has evolved, is it written on the website of the Federal Ministry of Justice: “Today, parents would violate the law if they punished their child in the same way that their own parents punished them”.

The defense was clarified by a 2004 Supreme Court of Canada decision upholding the constitutional validity of section 43, which is contained in the Code under the title “protection of persons exercising authority”.

The judgment states that the use of force to discipline a child is only permitted in cases where the child can learn and should not be due to anger. The child must be between the ages of two and 12 years old. The force used must be reasonable, and its effect must be “transitory and insignificant”. The seriousness of the child’s situation or behavior is not taken into consideration. Finally, hitting a child due to anger or frustration at the child’s behavior is not considered reasonable and is illegal, it says.

But efforts are still underway to have this article amended – or repealed.

A Senate bill was introduced in 2015 for this purpose, but has stalled since.

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