Sympatico Newsexpress National News, December 6, 1999
Spanking Canadian Kids -Is It Wrong Or Reasonable?
By Ian Karleff
TORONTO (Reuters) - Does the ``reasonable'' spanking of children contravene basic human rights and lead to violent, abusive behavior? Or is it justified for corrective purposes and rightly endorsed by the Criminal Code of Canada?
An Ontario Court heard opening arguments Monday in the challenge by the Canadian Foundation for Children to section 43 of Canada's criminal code that was introduced in 1892.
The section is based on English common law that also allowed corporal punishment of wives, servants and apprentices, and whipping prisoners -- the latter being legal in Canada until 1972.
Section 43 justifies the correction of a child by force, either by a parent, schoolteacher or a person standing in the place of a parent, ``if the force does not exceed what is reasonable under the circumstances.''
The Attorney General of Canada is expected to table opening arguments no later than Wednesday.
Foundation lawyer Paul Schabas told the court that ``as a society we don't accept corporal punishment.'' And that, he said, places section 43 in direct contradiction of a child's basic human rights.
``Nothing good comes from spanking,'' Paul Schabas told the court.
``Spanking is not good for them unless in getting short-term compliance,'' he said, adding: ``Electric shock achieves the same short-term compliance.''
Semantics are pivotal to the case, with the words ''reasonable,'' ``justified'' and ``force'' anticipated by both sides to elicit a great deal of argument throughout the expected three-week trial.
Justice David McCombs said the central issues of the trial are whether section 43 violates the Charter of Rights and Freedom that guarantees Canadians equal treatment regardless of age, the protection of individual security, and freedom from cruel and unusual punishment.
Schabas said section 43 goes even further by ``permitting aggressive assaultive behavior that causes injury and harm...sending a message that it's OK to hit kids.''
The very existence of section 43 creates enormous social problems by telling social workers and law enforcement officers that it is acceptable for parents to hit their children, said Shabas.
Shabas cited a number of cases in the past decade in which a defendant was acquitted of abuse charges by citing section 43, including an uncle who spanked his 13- and 14-year-old nieces after ordering them to strip to their bras and panties.
In 1996, a mother broke a plastic ruler on her six-year-old daughter's buttocks, bruising her, because of the child's lack of respect, said Shabas, but no charges were laid after the mother cited section 43.
Section 43 also ``flies in the face'' of the Federal Government's official line on spanking, which is conveyed through Department of Health literature condemning spanking under any circumstances, said the lawyer.
The Canadian cases coincides with a trial now before the Massachusetts Supreme Judicial Court on the same issues.
Legislators in Australia, New Zealand and Britain will be paying close attention to Canada's decision to determine whether similar challenges will emerge in those countries, said Corinne Robertshaw, coordinator of Repeal 43 Committee.
``Children are now the only remaining class of Canadian citizens who can be legally assaulted for their 'correction','' stated Robertshaw's newsletter titled ``End Legal Assaults on Children.''
Although defense lawyers have yet to table their arguments, they will try to counter that the elimination of section 43 will take away the reasonable right of caregivers to restrain children, said Robertshaw.