Dalhousie Law Journal


criminal code, criminal law, spanking, parent, child, assault, common law, necessity, prosecutorial discretion


The debate concerning the constitutionality and the possible repeal of s. 43 of the Criminal Code, the so-called "spanking" provision, has raised an important issue: when a parent touches a child without the child's consent, under what conditions is the parent's conduct an assault? Supporters of the'repeal of s. 43 have suggested that parents are protected from inappropriate prosecutions by the exercise of prosecutorial discretion and by the common law defences of de minimis non curat lex and necessity But prosecutorial discretion is not a suitable substitute for a proper definition of the scope of criminal liability,and the defences ofde minimis and necessity do not cover many typical situations in which parents apply non-consensual force to children for proper purposes. Further development of the common law defence of "deemed consent" would be more promising. This defence is available as a defence when a parent, a teacher,or another caregiver uses proportionate force in touching a child for a proper purpose. Because of certain problems in the common law definition and application of this defence, Parliament should enact a defence of "parental care," clearly restating the legal standard governing the touching of a child for a proper purpose.

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