Ontario thwarts bid to quash spanking law; debate could hit Supreme Court
By James McCarten
The Canadian Press, January 15, 2002

TORONTO (CP) - Parents and teachers retained the right to spank misbehaving children Tuesday, leaving the architects of a failed bid to quash Canada's age-old spanking law vowing to continue their fight.

The Ontario Court of Appeal rejected a bid to strike down a 110-year-old section of the Criminal Code which allows caregivers and educators to physically discipline their young charges.

Section 43, part of the code in various forms since 1892, allows the use of force "by way of correction" towards a child as long as it does not exceed "what is reasonable under the circumstances."

Critics have long argued the dated, controversial section is unconstitutional because it allows parents to use force that is beyond what the law is supposed to allow.

But it is - and ought to be - the role of the courts to decide on a case-by-case basis what is considered reasonable, said Tuesday's unanimous ruling, written in the main by Justice Stephen Thomas Goudge.

"Ultimately, the question is whether the phrase 'reasonable under the circumstances' provides the court with an intelligible standard for legal debate," Goudge wrote.

"I have no doubt that it does."

The section is intended to allow guardians to apply "strictly limited corrective force" without criminal sanctions, "so that they can carry out their important responsibilities to train and nurture children," the court said.

"Section 43 is reasonably tailored to effect this purpose," Goudge wrote. "It does so without exposing children to unreasonable physical punishment."

The Canadian Foundation for Children, Youth and the Law first went to court in July 2000 to ask Superior Court Justice David McCombs to strike down the section as a violation of the Charter of Rights and Freedoms.

The section discriminates against children, denies them the right to security of the person and subjects them to cruel and unusual punishment, the foundation argued. But McCombs upheld the law, saying parents and teachers have to have some latitude in carrying out their duty as caregivers.

Foundation lawyers Paul Schabas and Cheryl Milne were disappointed in Tuesday's ruling, but cheered its support for McCombs, whose decision helped spell out what constitutes reasonable force.

Among other things, McCombs said that the use of implements such as paddles or wooden spoons would be unreasonable, as would using corporal discipline on teenagers or children two or younger.

"The court has very clearly sent a public message to parents that you shouldn't be hitting your children for the purpose of punishment," said Milne.

"What the decision doesn't do is clearly recognize the equality rights of children; that is something we had hoped for, so we're going to be looking at whether we will appeal it on that basis."

Schabas said the foundation will likely decide later this week whether to seek leave to appeal the decision to the Supreme Court of Canada.

Meanwhile, warned Milne, children will be in danger as long as abusive parents believe their actions are sanctioned by the Criminal Code.

"You're going to continue to have these kinds of cases where parents will argue they're right because section 43 justifies the use of physical force."

Lawyer Roslyn Levine, who represented Canada's Attorney General, praised the court for protecting section 43's balance between the needs of parents and the rights of children.

Tuesday's decision was being watched closely by parents, teachers and child care experts from both sides of what proved to be a divisive and often acrimonious debate in 2001.

It reached a crescendo this past summer in southwestern Ontario after six children, aged six to 14, were dragged from their home in Aylmer, Ont., amid concerns they were being spanked with a paddle by their fundamentalist Christian parents.

The family's case drew dozens of protesters from across the province to the nearby town of St. Thomas, where parents keen to protect their right to use corporal discipline gathered regularly outside the courthouse.

"I'm just glad that there are responsible people that are making the laws," said Church of God pastor Rev. Henry Hildebrandt, who speaks on behalf of the family.

The ruling reaffirmed for Hildebrandt that the parents, who have acknowledged using a paddle on their children in accordance with their literal interpretation of Biblical teachings, never overstepped the bounds of reasonable force, he said.

"The courts are prepared to give parents the right to train their children."

Teachers' groups, insistent that they need section 43 to do their jobs, have also been staunch defenders of the law. Without it, even the mildest touch could be construed as illegal, they said.

Government lawyers also warned that striking down section 43 would also effectively criminalize all forms of parental force, since it would define unwanted touching as assault.

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A look at section 43 of the Criminal Code, also known as Canada's spanking law:

What it says: "Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances."

Origins: 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.

Critics say: It's too open to interpretation, treats children as second-class citizens, violates their right to security of the person and constitutes cruel and unusual punishment.

Proponents say: It strikes a fair balance between the constitutional rights of children and the right of parents to raise their kids the way they see fit.

The courts say: Reasonable force does not include the use of objects like belts, rulers or paddles, blows to the head, or blows that cause injury. There is no evidence that spanking works; no experts advocate its use. The section does not permit spanking a teenager or a child younger than three.

Quote: "It's an old provision that at one point sanctioned corporal punishment against wives, against employees and against prisoners as well as children. All those vestiges have been removed with the exception of being able to use force against children." - Marvin Bernstein, director of policy development with the Ontario Association of Children's Aid Societies.

The Canadian Press, 2002


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