High court backs right to spank -- Parents can strike children only if they use 'minor corrective force' of 'a trifling nature'
By Janice Tibbetts, CanWest News Service
National Post, January 31, 2004

Beverley McLachlin, Chief Justice of Canada, upheld the country's spanking law yesterday, but placed new legal boundaries -- including age restrictions -- on the use of force.
CREDIT: Pierre Obendrauf, CanWest News Service
OTTAWA - The Supreme Court yesterday upheld the right of parents to spank their children but imposed specific limits on the practice.

By a 6-3 margin, the court upheld the 112-year-old Criminal Code defence -- known widely as the "spanking law" -- that allows parents and teachers to use "reasonable" force "by way of correction."

The judges, acknowledging that lower courts across the country have been all over the map in interpreting the law, devoted much of their judgment to defining what is reasonable.

The general rule is that parents and teachers should escape criminal sanctions if they use "only minor corrective force of a transitory and trifling nature," concluded Chief Justice Beverley McLachlin.

Corporal punishment of children under two and of teenagers is banned, the court said. Parents cannot use any objects while disciplining their kids. Punishment must be administered with an open hand and blows or slaps to the head are prohibited. The force cannot cause harm, be degrading or cruel, or administered out of anger. And the gravity of a child's precipitating behaviour is irrelevant.

The court issued more restrictive guidelines for teachers, only allowing them to use force to restrain a student -- such as when breaking up a fight. They can never use corporal punishment.

"The prudent parent or teacher will refrain from conduct that approaches those boundaries, while law enforcement officers and judges will proceed with them in mind," Justice McLachlin wrote.

Focus on the Family, a conservative lobby group that intervened in the case, said it was relieved that the judges did not eliminate parental autonomy. "The Supreme Court has affirmed that parents are the best judge to decide what is best for their children," said spokesman Michael Martens.

The court rejected an appeal from the Canadian Foundation for Children, Youth, and the Law to completely abolish Section 43 of the Criminal Code on the grounds that it violates the constitutional rights of children.

"While children need a safe environment, they also depend on parents and teachers for guidance and discipline," Justice McLachlin wrote.

"The force permitted is limited and must be set against the reality of a child's mother or father being charged and pulled into the criminal justice system ... or a teacher to be detained pending bail."

It is estimated more than 50% of Canadian parents have used some form of physical discipline on their children, according to a legal brief filed in the case.

Justice McLachlin warned that repealing the section entirely would intrude too deeply into the autonomy of Canadian families.

"The reality is that without Section 43, Canada's broad assault law would criminalize force falling far short of what we think is corporal punishment, like placing an unwilling child in a chair for a five-minute time-out."

First included in the Criminal Code in 1892, the section originally allowed the use of corrective force against wives, employees and prisoners, as well as children.

The court adopted expert evidence concluding there is no benefit and it is even harmful to use physical force on children under two and on teenagers.

The court also determined that "corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful."

Teachers, who have the same protection from charges of assault as parents under the Criminal Code, should be more restricted, the court said.

"Contemporary social consensus is that, while teachers may sometimes use corrective force to remove children from classrooms or secure compliance with instructions, the use of corporal punishment by teachers is not acceptable."

Dissenting justices Louise Arbour and Marie Deschamps would have struck down the federal law as a violation of the constitutional rights of children. Furthermore, Justice Arbour wrote, the section is so vaguely crafted that "Canadian courts have been unable to articulate a legal framework" for the section, despite past attempts.

Justice Arbour listed several unacceptable assaults in which adults have been acquitted by invoking the section, including the case of an eight-year-old boy who was kicked and beaten by his father for spilling sunflower seeds on the floor and a 15-year-old boy who was knocked down by his father's punch.

Justice Ian Binnie, in a separate dissent, agreed with the majority that the law should be upheld for parents, but that teachers should not be given the same leeway.

The Canadian Teachers Federation praised the majority for retaining protection for educators.

President Terry Price said she expects that a limited number of school boards that still have corporal punishment policies on their books and allow straps in their schools will now remove them.

Federal lawyer Roslyn Levine praised the court for setting parameters, saying the ruling "tells parents where the boundaries are."

The government stresses that using force against children should be discouraged and Health Canada's published position is "it is never OK to spank children; it is a bad idea and it doesn't work."

Peter Dudding, executive director of the Child Welfare League, said the Supreme Court failed to force Canada to live up to its international treaty obligations to protect children.

"The court has tried to find a middle ground in all this, but the message is that children are still at risk in Canada," he said.

National Post 2004

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