Assault Charges: Self-defence and Spanking
You may use force or take other action to defend yourself against an assault or the threat of one provided your actions are reasonable. In determining reasonableness, factors to be considered include:
(a) the nature of the assault or threat to which you’re responding;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) your role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(g) the nature and proportionality of your response to the use or threat of force; and
(h) whether you acted in response to a use or threat of force that you knew was lawful.
When is a response disproportionate or excessive? The courts take a tolerant approach recognizing that a person defending himself against attack cannot be expected to weigh to a nicety the exact measure of necessary defensive action. As one court observed: “Detached reflection cannot be demanded in the presence of an uplifted knife.”
You may be acting in self defence even though no assault actually takes place provided you reasonably, albeit mistakenly, believe that one is taking place. Also, recall that an assault can take the form of a threat to apply force where the person threatened believes on reasonable grounds that the individual making the threat has the present ability to carry it out. In one case, a murder conviction was overturned where the killer believed that the victim was reaching behind his back for a knife. Although no knife was found, the killer interpreted the victim’s reaching motion as an assault, an incipient knife attack.
You are justified in using use force or taking other action to defend another person against an assault or the threat of one but in doing so you must act reasonably. In assessing reasonableness, the same factors that warrant self-defence apply.
Spanking (corporal punishment)
Perhaps the most controversial defence to a charge of assault is that available under section 43 of the Criminal Code to a parent who spanks or beats
his or her child. Known as the corporal punishment defence, it was upheld in 2004 as constitutional by the Supreme Court of Canada. (See news story.)
The defence justifies the hitting of a child by way of correction provided the force used is reasonable under the circumstances. The defence can also shield from criminal liability a teacher who restrains a pupil or uses force to remove a disruptive child from the classroom. The child must be capable of appreciating correction; the defence does not avail in an assault against a child under 2 or a mentally challenged child. As the assault must be for discipline, a smack delivered only in anger or frustration is not covered by the defence.
Where the defence is raised at trial, the Crown must call evidence to satisfy the court beyond a reasonable doubt the force used was not for the purpose of correction or that it was excessive.
Limits set for spanking
In its 2004 ruling upholding the corporal punishment defence, the Supreme Court of Canada set limits on its use:
- Corporal punishment of teenagers is impermissible. It achieves only short-term compliance and carries with it the danger of alienation from society, along with aggressive or otherwise anti-social behaviour.
- Corporal punishment using objects such as belts, rulers, etc., is potentially harmful both physically and emotionally and cannot be tolerated.
- Corporal punishment should never involve a slap or blow to the head.
- Corporal punishment which causes injury is child abuse.
Elimination of spanking defence imminent
The Trudeau government announced in December 2015 that it intends to repeal Section 43 as part of its greater pledge to implement all 94 recommendations of the Truth and Reconciliation Commission that investigated the legacy of the Indian residential school system. The commission said corporal punishment was “a relic of a discredited past and has no place in Canadian schools or homes.”