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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.

Some changes were recommended. Chief Justice Beverley McLachlin, writing for the majority, ruled out the use of corporal punishment for children under age two or for teenagers. She also came out against using instruments such as rulers and belts, or to strike a child on the face or head.

The court revised legal doctrine that had lumped parents and teachers together. Expressing the view of the majority in the 6-3 decision, McLachlin wrote that "corporal punishment by teachers is unacceptable."

Those against corporal punishment - at home or at school - argued that the old law should be thrown out because it is an affront to human dignity. When he argued his case before the Supreme Court in 2003, lawyer Paul Schabas said, "This case is about the right of children not to be hit, a right that in a modern, 21st-century democracy should be unquestioned."

The Canadian Foundation for Children, Youth and the Law, a children' s advocacy group, said Section 43 of the Criminal Code is a violation of the Charter of Rights. Speaking on behalf of the foundation, Schabas said, "Section 43 has the effect of making children second-class citizens."

The Ontario Court of Appeal upheld Section 43 in January 2002. The court ruled that parents and teachers are free to spank children for disciplinary purposes if they limit themselves to "reasonable force." The court also said the law strikes a fair balance between the state and the interests of children.

This led a group known as the Coalition to Repeal Section 43 of the Criminal Code of Canada to champion the cause of abolishing the century-old law. The coalition applauded the decision to appeal to the Supreme Court of Canada.

Matthew Geigen-Miller, director of education and communications for the Ottawa-based National Youth In Care Network, said a law that allows caregivers to use corporal punishment on children is a major concern for his association, which describes itself as "an advocacy group for the more than 62,000 children and youth in care in Canada."

Geigen-Miller said in an essay in The Globe and Mail that upholding Section 43 encourages the use of corporal punishment and "is known to be a gateway to abuse." He said the section "obscures child-abuse investigations, making it difficult for police and child-protection workers to make a legal distinction between abuse and discipline."

It was never a sure thing that the top court would recommend abolishing Section 43. During the argument stage at the Supreme Court, several of the judges took issue with Schabas's argument. A lawyer for the federal government said parents should be free to use "mild to moderate" forms of corporal punishment to discipline their children.

Justice Charles Gonthier said striking down Section 43 could make parents liable to criminal charges each time they spank their children. Two other justices, Ian Binnie and Frank Iacobucci, questioned any need to change the law, saying it guarantees immunity for reasonable discipline, not for child abuse. "This is a defence to assault," Iacobucci said. "It doesn't mean it's a value to be promoted."

"Most, if not all school boards already have rules against physical discipline," says Paul Whitehead, sociology professor at the University of Western Ontario. "The lessons taught by the use of such measures by parents, teachers or other persons in authority are contrary to what we want young persons to learn; that is, bigger people may hit smaller people, older people may hit younger people, stronger people may hit weaker people and higher status people may hit lower status people."

The Canadian Paediatric Society advises doctors talking to parents to "strongly discourage" spanking children as a disciplinary tool. "The days of spanking children were not the 'good old days,'and it is wrong, in my opinion, to think that some of the changes we see in our broader society come down to whether you spank or whether you don't spank," Dr. Sarah Shea says in a paper she co-authored on the subject of corporal punishment. "I think we' ve had a lot of growth in our understanding of spanking as an act of violence - or of potential violence - and to also know that there are lots of other choices."

There are teachers and education officials who defended keeping Section 43 as it is. In a letter to the editor of The Globe and Mail in 2003, Canadian Teachers Federation president Doug Willard said the elimination of the section would prevent teachers from dealing with potentially dangerous or disruptive situations.

"Why should teachers risk criminal prosecution for assault for returning a student to line, restraining a cognitively challenged student during a physical outburst, or removing a disruptive child from the classroom?" Willard asked.