QUICK TAKEAWAY
Child Abuse: The Criminal Code does not list child abuse as a crime though many other offences could be used to charge someone with acts of family violence. Some forms of neglect are crimes in Canada, including failure to provide the necessities of life and child abandonment. Depending on the crime, penalties can include life imprisonment.
Table of Contents:
Child Abuse is a Crime in Canada
While there is no specific offence called “child abuse” in the Criminal Code, all acts of abuse against children are crimes in Canada. Physical and sexual abuse fall under general assault and sexual offence legislation, though the act of spankingPunishment that may be legal if it is “transitory and trifling” in nature a child is specifically addressed. Other broad categories of child abuse are detailed below.
Spanking Could be Considered Child Abuse
Depending on the circumstances, spanking a child could be illegal, according to a Department of Justice (DoJ) document (Criminal Law and Managing Children's Behaviour.) That is because s.43 of the Code states school teachers, parents or someone standing in the place of a parent "is justified in using force by way of correction toward a pupil or child ? if the force does not exceed what is reasonable under the circumstances."
The DoJ document adds that spanking may be considered child abuse under provincial and territorial laws and could "lead to action taken by child protection authorities."
In 2004, the Supreme Court of Canada found (Canadian Foundation for Children, Youth and the Law v. Canada) that s.43 was constitutional and consistent with the Canadian Charter of Rights and Freedoms, while significantly narrowing its application, ruling that parents can only use physical punishment that is minor or "transitory and trifling" in nature. Physical punishment cannot be used on children younger than two or older than 12, and cannot be used in retaliation for something a child did. The court added that the seriousness of the child's misbehaviour is not relevant, as the force used "must be minor, no matter what the child did."
Types of Psychological Abuse
Offences related to some forms of psychological or emotional abuse of children often involve using words or actions to control, isolate, intimidate or dehumanize them.
Harassment
Section 264 (1) states people cannot criminally harass each other, including children, causing them "to fear for their safety or the safety of anyone known to them." If the charge is treated as an indictable offence you could face up to 10 years in prison, or a less harsh sentence if the charge is treated as a summary conviction.
Uttering threats
If you were to verbally threaten a child, you could be charged with uttering threatsWhen someone says or conveys a threat to cause a person’s death, bodily harm or damage to property under s.264.1 (1) of the Code. If you threaten to cause death or bodily harm, it will be treated as an indictable offence with the maximum punishment of five years in prison, with less harsh sentences given if the charge is treated as a summary conviction.
If you threaten to burn, destroy or damage the property of a child or kill or injure an animal as part of that threat, it will be treated as an indictable offence with the maximum punishment of two years in prison, with less harsh sentences given if the charge is treated as a summary conviction.
Forms of Neglect Within the Family
There are various offences related to neglect within the family that relate to child abuse.
Failure to Provide the Necessities of Life
Section 215 of the Code makes it a legal requirement of a parent, foster parent, guardian or head of a family to provide necessaries of life for a child under 16. This charge can be laid if a failure to perform that duty endangers a child's life or is likely to cause their health to be affected. The Code adds that evidence that you failed to provide the necessities of life to a child under 16 for one month is enough to bring this charge. If this charge is handled as an indictable offence the maximum penalty is a five-year prison or a less harsh sentence if it is prosecuted as a summary conviction.
Child Abandonment
Section 218 of the Code states that it is illegal to abandon a child under 10 years so that their life or health is, or is likely to be, endangered. If the charge is prosecuted as an indictable offence you could face a maximum penalty of five years in prison, with less harsh sentences given after guilty verdicts for summary convictions.
Criminal Negligence
Section 219 (1) of the Code states that you can face this charge if you do something, or fail to do something that is your duty to do, such as caring for minor-age children. If a child suffers bodily harm by your criminal negligence, s.221 states you could face a maximum penalty of 10 years in prison or less if the charge is treated as a summary conviction. If your action causes a death and a firearm was involved, the charge will be prosecuted as an indictable offence with a maximum penalty of life imprisonment and a minimum punishment of four years in prison.
Financial Abuse
Theft by Person Holding Power of Attorney
Section 331 makes it a crime for someone holding power of attorneyAuthority to act for another person in financial matters to fraudulently sell, mortgage, pledge or otherwise dispose of the property or a child whose care they are entrusted with. If more than $5,000 is stolen and the charge is treated as an indictable offence the maximum punishment is 10 years in prison, with less harsh sentences for charges treated as summary convictions. If the value was less than $5,000 and the charge is treated as an indictable offence, the maximum punishment is two years less a day in prison, with less harsh sentences for charges treated as summary convictions
What is Needed to Convict
The Crown must prove beyond a reasonable doubtThe standard that must be exceeded to find someone guilty that you committed the offence and the child is not fabricating the testimony against you. If there is forensic evidence linking you to the crime the validity of that evidenceAnything that supports a position can also be challenged. Your lawyer may be able to show that your rights under the Canadian Charter of Rights and Freedoms were breached during a police investigation.
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Elizabeth Ferris Law (Criminal)
Ko Bhamra Criminal Law Office
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Christopher Uwagboe, Barrister & Solicitor, Professional Corporation
Glossary of Legal Terms
Evidence
Evidence, which can include testimony, documents, expert statements or photographs, can be introduced by either side to support that a position is either true or not true. Any evidence introduced must be relevant to the case at hand.
Power of attorney
A legal document giving one person, or more than one person, the authority to manage your money and property on your behalf. In most of Canada the person you appoint is called an “attorney.” That person does not need to be a lawyer.
Reasonable doubt
The Supreme Court of Canada has said that reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities” and “that something less than absolute certainty is required, and that something more than probable guilt is required."
Spanking
Punishment that may be legal if it is “transitory and trifling” in nature. The Code stipulates that the force cannot exceed what is "reasonable under the circumstances."
Uttering threats
When someone says or conveys a threat to cause a person’s death, bodily harm or damage to property. It also includes threatening to kill, poison or injure an animal or bird that is the property of any person.
