Spare the rod -- or face jail?
By Margaret Philip
The Globe and Mail, June 7, 2003
A five-year campaign to see corporal punishment banned in Canada has finally reached the Supreme Court, reports MARGARET PHILP. The results could affect how you discipline your children.

The wallop was enough to break the clipboard the teacher held in his grip and plant a bump on the head of the stunned boy.

Earl Skidmore was revered in the corridors of St. Louis Catholic elementary school in Leamington, Ont., a veteran teacher and former principal known for his dedication to the job who was described as "a pillar of the community" by the local school trustee. Nearing retirement, he could be a strict disciplinarian in the classroom. Still, he was hardly the sort to blow his stack and hurt a child.

But 13-year-old [N.B.] was in a rebellious mood during gym class, laughing with his friends, kicking around a ball, throwing it against the gymnasium lights when they were supposed to be playing volleyball, and ignoring Mr. Skidmore's reprimands. As the boys were heading back to the locker room, the teacher grabbed [N.B.] by the throat, shoved him against a partition and smacked the clipboard -- he would later testify this was an accident -- over the boy's head.

Teachers seldom resort to force to tame unruly students, and in the rare instances when they do, almost never are they charged with assault. But after the incident, which occurred in November, 1999, [N.B.] complained about a headache and a sore bump on his head. When he told his parents what had happened that day, they were enraged. If it was a crime to slug someone on the street, was the same assault less of a criminal offence, they wondered, within the walls of a school?

After pressing charges against Mr. Skidmore and sitting through two days of court testimony the following June, they learned that it was. Mr. Skidmore was acquitted of the charge after his lawyer hung his defence on a provision in Canada's Criminal Code that allows parents and teachers to hit children "by way of correction," if the force is considered "reasonable."

In handing down his verdict, Judge Saul Nosanchuk of the Ontario Court barely concealed his irritation that Mr. Skidmore was charged at all. "The heavy machinery of the criminal justice system was not necessary in any way," he told the courtroom.

Determined to see some form of justice served, the family later sued the school board and Mr. Skidmore. The case is now in the process of being settled.

It is a crime to punch an adult in Canada, but another matter entirely when the person fielding the blows is a child. Decades ago, the country abolished the Criminal Code provisions that allowed husbands to hit their wives and bosses to flog their workers. Since 1972, prisoners can no longer be whipped in Canada's jails.

But Section 43, the century-old provision of the code that allows parents, teachers and babysitters to punish children with a harmless spanking, has permitted some people to welt and bruise children with belt buckles, curtain rods and electrical wire with impunity.

"There are a lot of cases that most Canadians would consider unreasonable that are considered reasonable because of Section 43," says Joan Durrant, a psychologist at the University of Manitoba and expert on corporal punishment.

"A girl was handcuffed to a clothesline. There are kids with welts visible four months later. A kid hit with a hammer. A head slammed into a cupboard door. And all were acquittals because a judge said there were reasonable grounds."

Prof. Durrant is one of a long list of individuals and organizations -- including pediatric hospitals, child-welfare agencies, provincial child advocates and some city councils -- that back a five-year-old legal campaign to abolish corporal punishment. Their efforts reached a pinnacle yesterday, when lawyers stood before the justices of the Supreme Court of Canada to argue that the provisions of the Criminal Code defending parents who spank violate the constitutional rights of children.

The issue is contentious, and treads on the emotional turf of child-rearing philosophy. Pitted against each other are those who believe a fine line divides spanking and wholesale child abuse and those -- including the federal government -- who are convinced of a parent's right to discipline their children as they see fit.

"We don't consider it justifiable to hit anyone except children, and it's fascinating to me why that is," Prof. Durrant says. "We would never say that because an elderly person has lost their reason, it would be okay to hit them to get them to eat faster. But with a child, it's completely acceptable."

If the Supreme Court rules that corporal punishment violates children's constitutional rights and repeals the defence of it in the Criminal Code, Canada would become one of a growing list of countries to spare the rod.

Sweden was the first, eliminating the defence from its penal code in 1957, and passing legislation outlawing assaults on children two decades later. In the years since, 10 other countries -- including Israel, Germany and Denmark -- have drafted laws to ban the physical punishment of children outright. And a total of 90 countries have abolished corporal punishment from their schools.

In Canada, the appetite to correct children's misdeeds with a spanking has ebbed from a generation ago, but it hasn't gone away completely.

A poll conducted in 2002 found that half of parents reported that they or their spouse had inflicted "light corporal punishment, like a slap," on their children, while 6 per cent confessed to exposing their kids to "painful corporal punishment."

A recent study of Ontario and Manitoba mothers with preschoolers found that while 70 per cent have disciplined their children with force at least once, more than half believed spanking their children was ineffective and ultimately harmful.

What those parents seem to understand intuitively is reflected in social-science research stretching back decades. Most studies show a link between physical discipline and aggression, antisocial behaviour, a more troubled parent-child bond, and mental-health issues in children. When they become parents themselves, these children are more inclined to be abusive themselves. The studies also found that children who were spanked were less disposed to learn a lesson from the mistake that invited the spanking.

"The more we know about children and how they learn, the more we realize that it doesn't make sense that hitting them would work," says Elizabeth Gershoff, a psychologist at Columbia University who published a study last year reviewing research on corporal punishment dating to 1938.

Not that all spanking leads to behavioural problems -- it is the children who are smacked routinely, with force and without explanation, who are most susceptible.

"I think most parents don't spank very often, and it's quite possible -- likely, in fact -- that they wouldn't see these effects if they spanked their children only three times in their life," Prof. Gershoff says.

Those who defend corporal punishment say that, as long as it is no more severe than a harmless swat to the buttocks with an open hand and never inflicted on adolescents or children under 2, it works wonders for curbing a child's reckless behaviour.

But spankings are not always delivered by sober-minded parents with their children's best interests at heart. Research shows a powerful connection between physical discipline and child abuse, which can start as a spanking but turn into a savage beating. A major study on the incidence of child abuse in Canada released last year found that 69 per cent of 14,200 substantiated cases of physical abuse started with a parent punishing a child.

Prof. Durrant says the constitutional challenge, which has to date been rejected by lower-court judges in Ontario, isn't aimed at sending parents to prison. "It's about protecting children and making it clear what our standard is in Canada and how committed we are to children's health and well-being," she says. "It won't mean prosecutions left and right."

Nick Bala is not so sure. A professor of family and children's law at Queen's University, he isn't a defender of corporal punishment, but has testified on Ottawa's behalf in previous trials to prevent the repeal of Section 43.

While those bent on abolishing the criminal defence insist that police will ignore parents who occasionally spank their children, Prof. Bala is concerned about the potential for criminal prosecution.

"I don't view the criminal justice system as a particularly good way of educating parents around optimal parenting," he says.

"There are lots of things many parents do that are much worse than corporal punishment that are not regulated by criminal law. Smoking in front of children is clearly very detrimental, not only because of the second-hand smoke issue, but the role-modelling issue. But we don't say, 'Let's take parents and criminally prosecute them.' "

Still, critics point to problems with leaving the Criminal Code in its current form, since it isn't applied consistently. Some violent physical punishments have resulted in criminal convictions, while others have led to acquittals, with still more never warranting charges from the investigating police officers in the first place.

In a high-profile case last October, Lucille Poulin, a 78-year-old former nun and head of a religious commune in Prince Edward Island, was convicted of assaulting five children with a wooden paddle because "they were born with the devil in them, which had to be beaten out," and was later sentenced to eight months in jail. The judge rejected the Section 43 defence, finding that most of the beatings were beyond reasonable.

But a few weeks later, a Quebec Superior Court judge returned a 12-year-old boy to the custody of his mother, who had beaten him at least three times. Child-welfare reports revealed that in one instance she pinned her son down with her knee, held him by the neck, and kicked him in the back after he arrived home late from a friend's house.

In handing down his ruling, the judge remarked: "I am one of those who continues to believe it's not a bad thing to give a good spanking from time to time."

Plenty more cases never darken the doorstep of a courthouse. A recent study of charging practices by Tammy Landau, a criminologist at Ryerson University's School of Justice Studies, found that police forces respond differently when investigating reports that parents have assaulted their children. While the Toronto force laid charges in half the cases where children sustained injuries, Winnipeg police charged parents only 13 per cent of the time.

"The reality is that a lot of violence is tolerated and expected," Prof. Landau says.

The unquestioning acceptance of Mr. Skidmore's violence still rankles [N.B's.] family. [His] stepmother, [N.L.], says she's "really not against" a teacher disciplining a student.

"But there are lots of ways to do it. You could send him home, or delete privileges, or write lines on the blackboard. . . .

"But [Mr. Skidmore] chose to do it that way, and we felt it was wrong."

The Swedish example

Since dropping its penal-code defence of corporal punishment in 1957, Sweden has shifted from a country where most children were spanked by their parents to one where parents are offended by the prospect of hitting their children.

Not only have the laws changed in Sweden, but the country launched an education campaign with printed brochures including research findings about the possible dangers of spanking, and warnings on milk cartons about the new law.

The message sank in. Opinion polls over the years have found that while half of Swedes thought corporal punishment was a necessary ingredient of child-rearing in 1965, only one in 10 did three decades later.

Equally dramatic has been the decline in child deaths at the hands of parents who discipline their children with force.

In the first half of the 1970s, a child died every year on average from discipline run amok.

But over the next two decades, after a new law was passed outlawing assaults on children, only four died in the aftermath of overzealous physical punishment, and in only one of those cases was a parent at fault.

Since 1997, no children have died.

Margaret Philp is The Globe and Mail's social policy reporter.

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