Advocates want rules to be clear

Old-fashioned discipline tested in court

Toronto Sun, By KATHLEEN HARRIS, OTTAWA BUREAU, January 18, 2004

OTTAWA -- Spanking your kid could soon be a crime. In a landmark ruling this month, the Supreme Court of Canada will decide if a century-old law that allows parents and teachers to use physical force for discipline should be scrapped. The constitutionality of the so-called "spanking law" -- Section 43 of the Criminal Code that pits teachers and socially conservative family groups against child welfare advocates -- will be decided Jan. 30.

"The fact that a parent is bigger and stronger and more powerful should not be a justification to strike a child," said Marvin Bernstein, a lawyer and policy development director for the Ontario Association of Children's Aid Societies.

"It shouldn't be a problem to physically stop a child from harming another person or running out onto the street -- but that's different from striking or hitting or inflicting pain."

The CAS has joined a legal fight launched five years ago by the Canadian Foundation for Children, Youth and the Law. The children's rights group wants Section 43 of the Criminal Code -- which was enacted in 1892 -- repealed on the grounds it discriminates by age, violates the human rights and security of children and fails to protect minors from abuse.

Bernstein believes it's time to send the message that violence against children -- whether it's a light tap on the buttocks or punishment with a "weapon" like a belt, stick or hairbrush -- is not acceptable.

Foundation lawyer Cheryl Milne said courts have had difficulty establishing what is "reasonable" corporal punishment. In some cases, courts have accepted discipline that results in bruising and broken teeth as "reasonable."

"It's hard to predict what falls within that section and it puts children at risk," she said.

The foundation lost its fight at the Ontario appeals court level, but hopes the Supreme Court of Canada will follow an international trend to outlaw physical force against children.

Eleven countries have passed a legal ban on parental-school corporal punishment, including Italy, Germany, Sweden, Norway and Israel.

In Canada, a Decima Research poll released last fall showed 51% of Canadians believe parents should be banned from using corporal punishment, while almost 70% want to end provisions that allow teachers to use physical force.

Milne is opposed to even mild forms of spanking, but said those who want Section 43 repealed aren't seeking criminal charges slapped against any parent who taps a child on the behind. Prosecutorial guidelines could direct police officers and lawyers to avoid charges in those cases, she said.

But Darrel Reid, president of the B.C.-based Focus on the Family, worries that removing Section 43 will lead to a growing number of children being removed from their homes and parents being tossed in jail for "loving" discipline.

"Parents are the people who understand, know and love their children best. They're far better able to make responsible decisions about parenting their kids than lawyers or bureaucrats," he said.

"This is not about abuse ... It's basically turning all Canadian parents who use corrective physical discipline into criminals."

Carole Morency, senior counsel with the federal justice department, said the government is defending the law as it stands because it protects only a "narrow" range of conduct.

"The federal government's position is that this kind of conduct is bad, we don't condone it, we don't advocate for it, but we also don't believe that type of conduct should attract the full force of the criminal law," she said.

Vic Toews, a Manitoba MP and former provincial attorney-general, said it would be "totally irresponsible" for the Supreme Court to tinker with the existing law. He warns that any physical contact could become an assault -- such as a teacher touching a disruptive student to remove him from the classroom.


That's why the Canadian Teachers Federation has joined the fight and some police officers are concerned about the outcome, he said.

But Ron Ensom, a former social worker with the Children's Hospital of Eastern Ontario who co-authored a study on the impact of corporal punishment, called the law "archaic."

Mounting world evidence shows that physical punishment puts children at risk of depression, mental problems and violent behaviour, he said. "The law doesn't allow husbands to hit wives, the law doesn't allow employers to hit employees, the law doesn't allow correctional services staff to lash or harm prisoners. But the law in Canada allows parents and teachers, in the name of correction, to hit and hurt kids to teach them a lesson. That's not right."

Reid disagreed, insisting the move to quash Section 43 is like trying to kill a mosquito with a sledgehammer.

"This is a major and unwarranted intrusion into the lives of parents and kids across the country. Parents know what loving discipline is.".