Ottawa Citizen, 13 December 1999

Law change would make teachers 'criminals'

Bid to repeal laws allowing spanking would also ban 'reasonable force' in correcting students' behaviour

TORONTO -- Repealing Sec. 43 of the Criminal Code could turn teachers into criminals for carrying out day-to-day duties, teachers' groups say.

"Innocent teachers will have their lives ruined," said Diane Balanyk-McNeil, of the Elementary Teachers' Federation of Ontario.

"People who enter this profession because they love children, they love to educate, they'll be made criminals."

The Canadian Foundation for Children, Youth and the Law is asking Ontario's Superior Court to strike Sec. 43 from the Criminal Code because it provides a defence for parents, care-givers and teachers who abuse children.

The section allows the groups to use "reasonable force" in correcting a child's behaviour.

The teaching profession's stand on the case will be heard today.

The federal attorney general is defending the law, saying that without it, parents could be charged for using moderate physical means, like spanking, to correct their children.

Teachers, however, no longer use corporal punishment, said Allan O'Brien, a lawyer for the Canadian Teachers' Federation. "But the use of moderate physical force is sometimes necessary in the classroom."

Physical contact is necessary between teachers and students in situations such as separating a bully from a victim, removing a disruptive student from the classroom and restraining an emotional or angry student, he said.

The police use Sec. 43 as a screening device to judge whether charges should be laid when teachers are accused of assault, Mr. O'Brien said.

He added that while teachers' federations across Canada are reporting the number of assault charges against their members has increased in the last decade, there's been a considerable reduction in the use of physical force for the purpose of correction.

"The removal of Sec. 43 will increase the likelihood that charges will be laid against teachers," Mr. O'Brien said.

"The significant, chilling effect will be that teachers will be less willing to carry out their duties in circumstances where they ought to intervene, like protecting a child from a bully. They'll be afraid to get involved, for fear it will be deemed criminal activity."

But Canadian Foundation for Children, Youth and the Law lawyer Cheryl Milne accused the Canadian Teachers' Federation of fear-mongering.

"We won't see all these teachers suddenly charged," Ms. Milne said. "There are provisions in the Criminal Code that protect everyone. ... Self-defence, defence of others, teachers breaking up fights, protection of other students ... this is all covered.

Ms. Milne said Sec. 25 of the Criminal Code would protect teachers. The section provides a defence to people who have a legal duty to carry out certain responsibilities and who use a reasonable amount of force to carry out those duties.

"Teachers have a legal duty to maintain order and discipline in the classroom and in our view they can use reasonable force to execute that duty," she said.

The court case is expected to wrap up today. Justice David McCombs is expected to reserve judgment for several months.