Court battle coming over whether you should spank children to punish them
By Elaine Moyle

From the Toronto Sun, November 26, 1998

To spank or not to spank? That's the question facing Ontario's judicial system as a children's protection agency attempts to outlaw corporal punishment.

The answer will affect millions of Ontario families and could set a Canadian precedent.

Spearheading the battle is Sheena Scott, lawyer and legal director of the independent, non-profit Justice for Children and Youth. She's fighting to repeal Section 43 of the Criminal Code that allows caregivers to use "reasonable" force to punish kids under 18.

Toronto parent Bill Johnson opposes Scott's move to ban hitting. Johnson, "a closet spanker" who requested a pseudonym, insists parents should be able to slap their kids.

The 42-year-old father of two used spanking as "a last resort" to correct the unruly behaviour of his two children when they were between three and nine.

"I'd give them a quick slap across the butt or a clip around the ear," says Johnson, whose eldest child is now 12. "I stopped when they were 10 because, at that age, you can reason with them and spanking becomes less effective."

Ross Watson (not his real name) ended his whacking ways after his wife slapped their cheeky seven-year-old across the face during a car trip from hell.

"My daughter said, 'Mommy, that really hurt,' and started crying. We looked at each other, realizing we were hitting out of frustration. These are little people who can really get hurt. We also noticed that when we spanked, the kids became more aggressive towards each other."

Rights violation
Fred Mathews, director of Central Toronto Youth Service, agrees. "Hitting and spanking teach that violence is a legitimate means to deal with anger and frustration. These children often encounter behavioural problems at school."

Small spanks potentially lead to larger ones, Mathews adds. "The bigger the child, the more strength you have to use. Once he or she begins fighting back, it takes more force to contain a larger child."

Many agencies have thrown their support behind Scott, including the Children's Aid Society of Metropolitan Toronto.

"Our experience in child welfare shows 85% of substantiated abuse cases began with attempts to discipline by corporally punishing children," says executive director Bruce Rivers.

The Repeal 43 Committee, headed by Corinne Robertshaw, is ecstatic its hard-fought dream may come true. "Corporal punishment is a violation of a fundamental human right to be protected by law against assault," she says. "Bill 43 is a clear case of allowing only one group of citizens to be assaulted for correction. It just so happens they're defenceless children who are in need of the greatest protection of the law."

'Assume ownership'
Section 43 contravenes another section of the Charter of Rights, which says Canadian children are entitled to equal protection, Robertshaw adds. It also violates the United Nations' Convention on the Rights of the Child, signed and ratified by Canada in 1981.

Some parents "assume ownership" of their children, she says, forgetting kids have rights of their own.

"Unfortunately, a number of them aren't aware of other ways of disciplining, training and teaching their children."

Alternate methods include "time out," temporarily suspending privileges and, within reason, allowing children to experience the consequences of their actions.

The pro-spanking camp also has its supporters.

Bruce Clemenger, director of national affairs for the Evangelical Fellowship of Canada, advocates the current wording of Section 43 because it allows a judge to punish child abusers yet overlook "non-abusive physical discipline." The group accepts corporal punishment if it's "age-appropriate, not meted out in anger and done appropriately."

'State intrusion'
Mark Genuis, executive director of The National Foundation for Family Research and Education, stresses the need to differentiate between child abuse and spanking to discourage incorrect behaviour.

But he insists there's a need to respect the rights of the majority of parents who don't abuse their kids.

"We must expect them to be competent to make the best decisions they can on a day-to-day basis for their children and families. This is the real issue. Who's in the best position to care for Canada's children and make the day-to-day decisions?"

Focus on the Family, a Vancouver-based traditional values group, agrees.

"If Section 43 is removed, it places the state more squarely between the parent and child than ever before and, ultimately, that cannot be in the best interest of kids," says legal consultant Cindy Silver. "State intrusion should be allowed only in matters of abuse and neglect. Then the onus to prove abuse should be on the state, not on the parents to disprove it."

Paper war
But a paper war -- not a drag 'em out court fight -- will determine the legality of slapping Ontario children.

It could take up to one year to make a decision, says Scott. "We have filed affidavit material and the Crown has the opportunity to respond."

A court date has been set for Jan. 12, but legal disputes could postpone proceedings, she adds.

Ironically, Scott's crusade is funded by a federal program enabling people to challenge equality-based laws.

An Ontario victory wouldn't affect other provinces, Scott explains. Each would have to challenge the law in their own jurisdiction unless the court issues a blanket repeal.

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