Corporal Punishment of Children - Supreme Court of Canada

Assaulting children to discipline them

The "Spanking" issue heard by the Supreme Court of Canada

Chief Justice of the Supreme Court of Canada doesn't support children's rights

"An illustration of the lack of appreciation of the importance of Canada's commitment to children's rights was seen in the comments made by Chief Justice McLachlin during the Supreme Court deliberations on the constitutionality of section 43 of the Criminal Code. She not only disregarded the consistent recommendations of the UN Committee on the Rights of the Child, but also went on to say that the best interest of the child "is not vital or fundamental to our social notion of justice."

- Professor Katherine Covell, CBU Children's Right Centre (Cape Breton University) testimony before the Senate Standing Committee on Human Rights Feb. 7, 2005 Read More ..

From the website of the Justice Department - Canada (Attorney General of Canada)

Section 43 of the Criminal Code (Corporal Punishment)

The Canadian Foundation for Children, Youth and the Law v. The Attorney General of Canada

On January 30, 2004, the Supreme Court of Canada released its decision in the case of Canadian Foundation for Children, Youth and the Law v. The Attorney General in Right of Canada, which concerns the use of force by parents and teachers to "correct" a child. This fact sheet provides a summary of the case.

Issue Before the Supreme Court of Canada

The issue before the Supreme Court of Canada was whether s.43 of the Criminal Code of Canada is unconstitutional. Section 43 provides that a parent, teacher or person acting in the place of a parent is justified in using force to correct a child that is under his or her care provided that the force used is reasonable in all of the circumstances.

Decision

The Supreme Court of Canada decided that section 43 of the Criminal Code is constitutional; it found that section 43 does not violate a child's rights to security of the person and equality, and is not cruel and unusual punishment. more specifically, the Supreme Court held that section 43 ensures that the criminal law applies to any use of force that harms a child, but does not apply where the use of force is part of a genuine effort to educate the child, poses no reasonable risk of harm that is more than transitory and trifling, and is reasonable under the circumstances.

Position of the Parties

The Canadian Foundation for Children, Youth and the Law, argued that section 43 violates children's Charter rights to security of the person, equality and that section 43 constituted cruel and unusual punishment. The Attorney General of Canada argued that section 43 reflects a fair balance between the interests of children, parents and Canadian society. Although the federal government does not condone the physical discipline of children, neither does it support the criminalization of parents for disciplinary conduct which is undertaken in a reasonable way and takes into account the needs and best interests of children.

History of the Case

In November 1998, the Canadian Foundation for Children, Youth and the Law sought a declaration in Ontario that section 43 violates sections 7 (security of the person), 12 (cruel and unusual punishment), and 15 (equality) of the Canadian Charter of Rights and Freedoms and that it conflicts with Canada's obligations under the United Nations Convention on the Rights of the Child. Section 43 is a limited defence; it provides that a parent, teacher or person acting in the place of a parent is justified in using force to correct a child that is under his or her care, provided that the force used is reasonable in all the circumstances.

The federal government defended against the Charter challenge and was supported by the Canadian Teachers Federation and the Coalition for Family Autonomy (Focus on the Family, the Canadian Family Action Coalition, the Home School Legal Defence Association of Canada, and REAL Women of Canada). The Canadian Foundations position was supported by the Ontario Association of Children's Aid Societies.

In its decision of July 5, 2000, the Ontario Superior Court of Justice upheld the constitutionality of section 43 and found that it was consistent with Canada's obligations under the United Nations Convention on the Rights of the Child. It held that the current test to determine the applicability of section 43 reflects a reasonable balance of the Charter interests of children, parents and Canadian society. This test involves an examination of a variety of factors including the age and character of the child, the nature of the child's behaviour calling for correction, the degree and gravity of the punishment, and the circumstances under which the force was applied. These factors are assessed against the contemporary Canadian community's standard of reasonableness and not against the rules or practices of an individual family. The court provided additional guidelines, based on expert evidence led in the case, to aid in interpreting and applying section 43 in accordance with the Charter. These guidelines relate to the corporal punishment of very young children and teenagers, the use of objects in corporal punishment, injury, and effective alternatives to corporal punishment, among others.

On January 15, 2002, the Ontario Court of Appeal upheld the lower courts decision and dismissed the appeal. This decision was appealed to the Supreme Court of Canada, which heard the appeal on June 6, 2003 and reserved judgment. The judgment was provided on January 30, 2004.

The Supreme Court of Canada Judgment
January 30, 2004

The Supreme Court of Canada Reasons for Judgment

English Fran??ais

CORPORAL PUNISHMENT: Towards Constructive Child Discipline

Report

During the Commission on Human Rights, UNESCO launched a new report entitled "Eliminating Corporal Punishment - The Way Forward to Constructive Child Discipline". The United Nations Committee on the Rights of the Child has consistently recommended States Parties to the Convention on the Rights of the Child to prohibit corporal punishment and other forms of violence against children in institutions, in schools, and in the homes. The past 25 years have shown that the elimination of corporal punishment is not easy to achieve.

To discipline or punish through physical harm is clearly a violation of the most basic of human rights. Research on corporal punishment has found it to be counterproductive and relatively ineffective, as well as dangerous and harmful to physical, psychological and social well being. While many States have developed child protection laws and systems violence still continues to be inflicted upon children.

This UNESCO publication provides a comprehensive approach, including the main steps to be considered in the process of eliminating corporal punishment, and provides tools to accomplish this goal. It shows the human rights imperative and describes several aspects of the negative consequences and implications that are caused. It details practical steps for more constructive and effective child discipline practices, and ongoing supports for long-term change.

An international panel of experts presents descriptions of some of the constructive discipline orientations and practices known to be applied in Asia, Africa, Europe, the Middle East, and South America. They include: involving learners and their parents in decisions about codes of conduct and associated practices; providing guidance in the selection of positive models in peers and classmates; family meetings and inter-generational dialogue; rendering services to the community to rectify rule infractions; and exploring ethical-moral meanings and implications in current events. Additionally, two experts on Indigenous peoples provide descriptions of constructive child rearing and discipline orientations and related practices for peoples they know well.

For more information, contact:
UNESCO
7 Place de Fontenoy, 75352 Paris 07 SP, France
Tel: + 33 1 45 680 686; Fax: + 33 1 45 685 626
Website: www.unesco.org

U.N. Committee of the Rights of the Child 42nd Session ( June 2006 )

General Comment No. 8: The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment

Landmark European human rights ruling on equal protection

June 2005

Responding to human rights complaints brought against five countries, the European Committee of Social Rights has confirmed (June 2005) that supreme court judgments in Italy and Portugal do prohibit all corporal punishment of children. This means that more than a third (16 of 46) member states of the Council of Europe now give children equal protection under their assault laws.

In addition to Italy and Portugal, the other countries where children have equal protection are: Sweden (1979), Finland (1983), Norway (1987), Austria (1989), Cyprus (1994), Denmark (1997), Latvia (1998), Croatia (1999), Bulgaria (2000), Germany (2000), Iceland (2003), Hungary (2004), Romania (2004) and Ukraine (2004). For details see states with full abolition.

The Committee of Social Rights found that Belgium, Greece and Ireland are in breach of their human rights obligations under the European Social Charter or Revised Social Charter because they have not prohibited all corporal punishment. Article 17 of the Charter requires a prohibition in legislation against any form of violence against children, whether at school, in other institutions, in their home or elsewhere. For details of the Committees decision, see link to decision

These landmark rulings are the result of collective complaints registered by the World Organisation Against Torture (OMCT) in 2003. To date, only 13 member states of the Council of Europe have accepted the collective complaints procedure.

Greece has already signalled that it will legislate quickly to comply with the decision.

Links to websites of the organizations involved in this court case

Canadian Foundation for Children, Youth and the Law
Supporter: Ontario Association of Children's Aid Societies

vs.

Attorney General in Right of Canada

Supporters:

Coalition for Family Autonomy comprised of:

Focus on the Family (Canada) Association
Canada Family Action Coalition
The Home School Legal Defence Association of Canada ( Canadian Branch of American advocacy organization)
Real Women of Canada

Canadian Teachers' Federation

Newspaper articles

Statistics show child abuse leads to future violence

Statistics have proven that child abuse in young children can lead to violent behavior as they get older.

Fourth Estate, A Student Publication of the University of Wisconsin USA, By Adam Wolfgram, Opinion Writer, 21 February 2012

Statistics have proven that child abuse in young children can lead to violent behavior as they get older.
There is a fine line between discipline and abuse in regards to corporal punishment. Many parents use spankings as a way to teach their children how to behave, but when does this old, disciplinary tactic become abuse? Can there be life-altering implications on the victims mind?

It is a common belief among psychologists that parents shouldn't spank as a disciplinary action.

Parents use spanking to teach their children the difference between right and wrong. When people spank their children there are two results: teaching them the actions preceding the spanking were wrong, or that problems are best handled with violence.

In a Tulane University study, health researcher Catherine Taylor found children who are more frequently spanked at age 3 are likely to show more aggressive behavior at age 5. Read More ..

INDEPTH: SPANKING
To spank or not to spank?

CBC ( Canadian Broadcasting Corporation) News Online, February 2, 2004

The Supreme Court of Canada has upheld a century-old law that allows parents, teachers and caregivers to spank children, but ruled the use of corporal punishment be confined to children between the ages of two and 12.

The top court had been asked to rule on whether spanking constitutes "reasonable force" for disciplining children, or whether it is a form of abuse. The court has heard arguments pro and con the efficacy of Section 43 of the Criminal Code, which allows parents, teachers and caregivers - including babysitters and foster parents - to use corporal punishment as "reasonable force" to discipline children.

The section was enacted in 1892. Read More ..

Canadian Court: Spanking Kids OK

CBS News, (Associated Press) U.S., January 30, 2004 Read More ..

Supreme Court upholds spanking law

Canadian Broadcasting Corporation (CBC), January 30, 2004 Read More ..

Leave his Charter of Rights alone

The Leader-Post, Regina, Ron Petrie, January 29, 2004

Tomorrow the Supreme Court rules on whether spanking violates the Charter of Rights. So far none of the lawyers quoted in the news stories has specified exactly whose charter. Here's mine:

THE DAD CHARTER OF RIGHTS Read More ..

Spanking upheld by Supreme Court

Globe and Mail, By OLIVER MOORE, January 30, 2004

Parents can legally spank their children, the Supreme Court ruled Friday.

By a 6-3 vote, the Justices upheld Section 43 of the Criminal Code, which allows parents and authority figures to use reasonable force on children under their care. But they applied new limits to the century-old law. Read More ..

Supreme Court takes strap out of teachers' hands

Edmonton Journal, January 31, 2004

EDMONTON - Fifteen Alberta school boards that still allow use of the strap will have to change their policies after the Supreme Court of Canada ruling Friday that prohibits corporal punishment in schools Read More ..

High court to rule Friday on whether spanking violates rights of children

Canadian Press, Jim Brown, Sunday, January 25, 2004

OTTAWA --The Supreme Court of Canada is set to decide whether a parental smack on a childish bottom -- a disciplinary measure specifically permitted by federal law for more than a century -- is a violation of the Charter of Rights.

The high court has scheduled this Friday as judgment day in a constitutional challenge mounted by children's rights advocates who want the so-called spanking law struck down.

"We're looking forward to the decision,'' says lawyer Paul Schabas. "It's been a long battle.''

Schabas and co-counsel Cheryl Milne represent the Canadian Foundation for Children, Youth and the Law, which began its campaign to outlaw spanking four years ago.

"Hitting people breaks fundamental rights of respect for human dignity and physical integrity,'' they argued when the case finally reached the country's highest court last June.

"Children are people too.'' Read More ..

Scholarly Submission
University Paper - Submission to the Canadian Children's Rights Council

The Issue of Corporal Punishment

By Stacey McDonald, student, Cape Breton University, November 25th, 2005

The purpose of this paper is to examine the question of whether the practice of corporal punishment in law should be made illegal in Canada. The question is this: in light of the UN Convention on the Rights of the Child, should Canada take steps to make the physical punishment of children even light spanking against the law. Corporal punishment is described in Katherine Covell & R. Brian Howe's book, The Challenge of Children's Rights for Canada as any form of physical behaviour used to discipline a child that is not severe enough to be classified as abuse(70). Corporal punishment, or spanking, is problematic because people have different versions of light spanking; there is no universal code or form of light spanking. What one considers light spanking, another may consider extremely harsh. Read More ..

INDEPTH: SPANKING

Spanking in Canada: A timeline

CBC (Canadian Broadcasting Corporation) News Online, January 28, 2004

April 18, 2003

Former nun Lucille Poulin is released from jail after serving eight months for beating several children at a religious commune on P.E.I. Some people on the Island say they're worried that she will violate her parole conditions. She was also ordered not to live with or care for anyone under 14 for three years after being released.

November 8, 2002

Lucille Poulin is sentenced to eight months in jail and three years probation for assaulting five children who lived at a religious commune in Hazel Grove, P.E.I. During the trial, Poulin said sections of the Bible suggest using beatings to discipline children and to dissuade them from evil. Read More ..

Hitting defenceless children must be ended

The Telegraph Journal, Maritimes Canada, Letter to the Editor, published January19,2010

Charles W. Moore uses an unpublished, and hence unverifiable, study to express approval of spanking and "the strap" as used 50 years ago during his school days. His approval is based on "thousands of years of parenting," the American College of Pediatricians, and Section 43 of our Criminal Code.

For "thousands of years" children were treated as the property of parents with few rights of their own. Beatings and floggings in the name of discipline were the order of the day. This historical legacy was only seriously challenged in the last century and is hardly a sound basis for current policy. Read More ..

How Spanking Harms the Brain

Why spanking should be outlawed.

Psychology Today, February 12, 2012, by Molly S. Castelloe, Ph.D. in The Me in We

Spanking erodes developmental growth in children and decreases a child's IQ, a recent Canadian study shows.

This analysis, conducted at the Children's Hospital of Eastern Ontario in Ottawa, offers new evidence that corporal punishment causes cognitive impairment and long-term developmental difficulties.

Debates around physical punishment typically revolve around the ethics of using violence to enforce discipline. This inquiry synthesized 20 years of published research on the topic and aims to "shift the ethical debate over corporal punishment into the medical sphere," says Joan Durant, a professor at University of Manitoba and one of the authors of the study.

According to the report, spanking may reduce the brain's grey matter, the connective tissue between brain cells. Grey matter is an integral part of the central nervous system and influences intelligence testing and learning abilities. It includes areas of the brain involved in sensory perception, speech, muscular control, emotions and memory. Additional research supports the hypothesis that children and adolescents subjected to child abuse and neglect have less grey matter than children who have not been ill-treated.

Don't Spank

Canadian Paediatric Society - Spanking

Don't Spank - Canadian Paediatric Society

Effective discipline for children

Reaffirmed: February 1, 2014

Principal author(s)

P Nieman, S Shea; Canadian Paediatric Society, Community Paediatrics Committee

Paediatric Child Health 2004;9(1):37-41

The word discipline means to impart knowledge and skill - to teach. However, it is often equated with punishment and control. There is a great deal of controversy about the appropriate ways to discipline children, and parents are often confused about effective ways to set limits and instill self-control in their child.

In medical and secular literature, there is great diversity of opinion about the short-term and long-term effects of various disciplinary methods, especially the use of disciplinary spanking. This statement reviews the issues concerning childhood discipline and offers practical guidelines for physicians to use in counselling parents about effective discipline.

The Canadian Paediatric Society recommends that physicians take an anticipatory approach to discipline, including asking questions about techniques used in the home. Physicians should actively counsel parents about discipline and should strongly discourage the use of spanking.

Corporal Punishment Damaging to Children

Spanking May Lead to Aggression Later in Life

ABC TV, USA
07 February, 2012

Physical punishment of children, such as spanking, is increasingly linked with long-term adverse consequences, researchers wrote.

An analysis of research conducted since the 1990 adoption of the UN's Convention on the Rights of the Child suggests that no studies have found positive consequences of physical punishment, according to Joan Durrant of the University of Manitoba in Winnipeg, and Ron Ensom of the Children's Hospital of Eastern Ontario in Ottawa.

While some studies have found little effect either way, most research has uncovered a range of negative outcomes, including increased aggression and later delinquency, Durrant and Ensom wrote online in CMAJ.

The clinical implication, they suggested, is that doctors who are familiar with the research can help parents find more constructive ways of providing discipline.

"In doing so, physicians strengthen child well-being and parent-child relationships at the population level," they wrote.

They noted that as recently as 1992, physical punishment of children was widely accepted, thought of as distinct from abuse, and considered "appropriate" as a way of eliciting desired behavior.

But research under way at that time was beginning to draw links between physical punishment and aggression in childhood, later delinquency, and spousal assault.

Alyson Schafer - parent educator - corporal punishment of children and discipline

Alyson Schafer on Spanking and Corporal Punishment of Children

Alyson Schafer is a psychotherapist and one of Canada's leading parenting experts. She's the author of the best-selling "Breaking the Good Mom Myth" (Wiley, 2006) and host of TV's The Parenting Show a live call-in show in Toronto, Ontario.

The media relies on Alyson's comments and opinions. you can find her interviewed and quoted extensively in such publications as Cosmopolitan, Readers' Digest, Canadian Living, Today's Parents, and Canadian Families.

You can read Alyson's thoughts.

STOP SPANKING

International
Spank Out Day
April 30th

Laws on Corporal Punishment of Children from around the World

Other countries don't allow assaults on children

Like Britain, countries such as Sweden, Finland, Norway, and Austria had a defence to assaults on children similar to our s. 43. These defences were removed between 1957 and 1977. The criminal law of these countries therefore gives children the same protection from assault as it gives adults. Beginning with Sweden in 1979, these countries also amended their civil child welfare laws to expressly prohibit corporal punishment so that the public fully understood it was illegal.

Repeal 43 logo

Committee to Repeal Section 43 of the Criminal Code of Canada Which Allows Hitting Children to "Correct" Them

The Repeal 43 Committee is a national, voluntary committee of lawyers, paediatricians, social workers and educators formed in 1994 to advocate repeal of section 43 of the Criminal Code of Canada.

It is an offence under our Criminal Code to use force against anyone without their consent. This right to personal security is the most fundamental of all human rights. It is a protection against assault that all adults take for granted.

Children do not have the full benefit of this protection because section 43 of the Criminal Code justifies hitting children for disciplinary or "correction" reasons. This violates a child's right to the equal protection and benefit of the law guaranteed by our Canadian Charter of Rights and Freedoms.

It contravenes the United Nations Convention on the Rights of the Child. It violates a child's dignity and shows a lack of respect. It can lead to serious physical and emotional harm.

Over 400 organizations from across Canada that deal with children are against corporal punishment www.Repeal43.org