In Loco Parentis - LawNow Magazine

In Loco Parentis

… only minor corrective force of a transitory and trifling nature. [No] corporal punishment of children under two or teenagers. Degrading, inhuman or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the head is unreasonable. Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment. … [T]he conduct [must] be corrective, which rules out conduct stemming from the [teacher’s] frustration, loss of temper or abusive personality …

 – Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) (2004 SCC 4 at para 40)

Introduction

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In loco parentis is a Latin legal term which translates into “in place of a parent.” Traceable to 1926, it grants individuals caring for children the same rights and responsibilities as a parent. It was originally associated with “one who has acted … in the situation which is ordinarily occupied by the father for the provision of the child’s pecuniary wants”. Case law throughout the century now allows a more broad interpretation beyond simply financial support.

In modern Canadian law, the term in loco parentis can apply to various scenarios where a parent places a child in the care of another individual, ranging from a professional such as a doctor to an amateur such as a babysitter. However, the rights and responsibilities in each case vary depending on several factors.

This article is about in loco parentis status of teachers. Teachers often educate and care for many children at once. Given their obvious responsibilities, teachers’ roles and rights are set out in both provincial education legislation and in the federal Criminal Code.

Who is a Teacher?

Provincial governments issue certificates of qualification to teachers under the applicable provincial laws. In Alberta, this law is the Education Act. Alberta has clear educational and professional experience requirements:

  • 16 years of formal education (including a 4-year, full-time university degree); and
  • 10 weeks of supervised student teaching (a practicum).

The Supreme Court of Canada has defined a schoolteacher more generally as “a person who gives formal instruction in a children’s school”. Therefore, the benchmark is instruction rather than caregiving, along with prescribed education qualifications and licences to teach.

Teachers enjoy specific protections under Canada’s Criminal Code, but they also must follow their provincial laws (such as Alberta’s Teaching Profession Act) and professional codes of conduct (such as The Alberta Teachers’ Association’s Code of Professional Conduct) to remain employed.

Responsibilities of a Teacher

In loco parentis is a Latin legal term which translates into “in place of a parent.”Traditionally, the in loco parentis doctrine clothed teachers with the same responsibility as a parent and exposed them to the same liability for a child’s wellbeing. This meant a teacher must act in the manner of a reasonable and prudent parent.

However, several Supreme Court of Canada decisions, such as Thormon (1976) and Myers (1981), invested teachers with “supra-parental expertise”. This means that teachers will be held to the standard of a reasonable, competent professional.

Corporal Punishment

Legal protection of teachers to corporally punish – spank – their students emerged in Canadian case law in 1936. In Rex v Corkum, the Nova Scotia judge said that “the authority of a school teacher to chastise a pupil is to be regarded as a delegation of parental authority” (p. 80).

In R v Haberstock (1970), the Saskatchewan Court of Appeal acquitted a school vice principal who slapped three 12-year-old students on the side of their faces, chipping a tooth of one of them. The trial judge found that the students had done nothing wrong. The vice principal said the students had called him names (such as “short ribs”) the previous week.

Every time a teacher intentionally restrains or strikes a non-consenting student, that teacher may be liable for the crime of assault under section 265 of the Criminal Code . But section 43 also states:

Every schoolteacher… 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.

Corporal punishment – spanking – has essentially disappeared from Canadian schools. While it remains legal, it is widely frowned upon as a disciplinary practice and most school boards outright prohibit it. Nevertheless, section 43 of the Criminal Code offers legal protection for both parents and teachers, allowing them to “correct children with force that is reasonable under the circumstances.”

Children equally enjoy the right to “life, liberty and security of person” under the Charter of Rights and Freedoms (1982) as well as freedom from discrimination based on age. In 2004, the Supreme Court of Canada confirmed the constitutionality of section 43 of the Criminal Code in the Canadian Foundation for Children decision. However, the Court considerably limited spanking by teachers as corrective action:

  • Teachers are protected by section 43 only when removing a child from a classroom or trying to get the child to follow the teacher’s instructions.
  • No one can legally spank a child above the age of 12 years. And no one can use a device to spank a child. (The headmaster’s strap will remain a relic of history.)

Legal protection of teachers to corporally punish – spank – their students emerged in Canadian case law in 1936.Moreover, section 43 only provides protection against criminal prosecution. Again, most provincial education legislation and school boards across the country specifically forbid corporal punishment. Spanker teachers could be disciplined by their profession (possibly lose their teaching license) and employer (possibly lose their teaching job). And the spanker teacher may even be civilly liable for battery of the student and may have to pay damages.

It appears that section 43 may be used to defend the detention of a student who is suspected of criminal activity. In R v Sweet (1986), a teacher restrained a student, accused of marijuana possession, as the student attempted to escape investigation against repeated orders to remain.

Conclusion

Teachers are responsible not only for educating children but also for enforcing policies and maintaining order. The law confers upon Canadian teachers some immunities to achieve these goals but corporal punishment in schools has become an historical footnote. Despite a teacher having a possible legal defence against a charge of assault, spanking or otherwise physically punishing a student would violate the teacher’s professional code of conduct, provincial school legislation and school board policy.

By way of the in loco parentis doctrine, teachers stand in essentially the same legal position as parents. The practical use of in loco parentis relates to discipline and physical punishment of children. As we have seen here, physical contact used by teachers fifty years ago would not be acceptable today.

Authors:

Peter Bowal
Peter Bowal
Peter Bowal is a Professor of Law at the Haskayne School of Business, University of Calgary in Calgary, Alberta.
 

John Rollett
John Rollett earned a BComm at the Haskayne School of Business, University of Calgary.
 


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