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Canadian Court Rethinks Spanking
The Toronto Star
January 25, 2004 "Spanking decision may hit home" Supreme Court to rule Friday on whether to abolish controversial section of Criminal Code Critics say law too vague; defenders s JOHN GODDARD TORONTO STAR The law says it is wrong for a man to hit a woman, but okay for a parent to hit a child. A man who strikes a woman in a family dispute meets zero tolerance from police, but a parent who strikes a child for misbehaving is seen as acting properly. Some people say that's crazy. If Canadian law protects women from assault of any kind, why does it deny the same protection to children, who are smaller and more vulnerable? The reason, other people say, is that hitting a wife in anger is a lot different from spanking a child. "I think the overall problem about this issue is that it is such a deeply personal one," says Peter Newell, co-ordinator of global lobby group End Physical Punishment of Children, based in London, England. "Most people were hit as children," he said by phone recently. "Most parents have also hit their own children. That makes it difficult for people to come to a logical conclusion ‹ that children and adults be protected equally." On Friday, the Supreme Court of Canada is to rule on the question. Specifically, the court is to decide whether to abolish Section 43 of the Criminal Code, which offers parents and schoolteachers legal justification for physically disciplining a child. A Toronto group called the Foundation for Children, Youth and the Law argued in June that the statute violates a child's constitutional rights, including rights to equality and security of person. In response, federal lawyers agreed that spanking is bad parenting ‹ "It's never okay to spank children" ‹ but said that Section 43 rightly upholds a parent's authority to raise a child without undue government interference. It would be absurd, government lawyers said, to expose parents to the threat of criminal prosecution "for every trivial slap or spanking." So far, 12 countries ‹ mostly in Europe ‹ have changed laws to prohibit parents from striking their children. In October, a United Nations committee ruled that Canadian law violates the U.N. Convention on the Rights of the Child, and that Canada should "prohibit all forms of violence against children, however light." The committee specifically called for abolishing Section 43. But if the Supreme Court does strike down the section, a lot of parents are in for a surprise. Spanking would be no different in law from any other common assault, a criminal act punishable by imprisonment for up to five years. In Canadian law, any unwelcome touch is considered assault. Any unwelcome force by one person against another, no matter how mild, is illegal. Historically, various exemptions have applied. Under English common law, masters could once legally strike servants and husbands could, in moderation, beat their wives. After the codification of Canadian criminal law in 1892, employers could still legally hit apprentices, and prison wardens were justified in flogging inmates with a cat-o'-nine-tails. Only two exceptions still remain. The law continues to offer a legal defence to ship commanders who use force against sailors to maintain order. Similarly, Section 43 of the Criminal Code offers a defence to parents and schoolteachers who hit a child, provided that the purpose is to correct the child's behaviour and that "reasonable" force is used. The full text states: "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." Critics view Section 43 as a relic from another age. "Culturally anachronistic and historically outdated," Italy's top court called a similar Italian statute in 1996, when declaring all physical punishment of children in Italy illegal. The word "reasonable" draws particular criticism. Even lower-court judges have complained of loose wording. In a 1996 child assault case, Mr. Justice Ian MacDonnell of the Ontario Court of Justice (provincial division) complained of "the elusive nature of the standard of reasonableness." Two years later, Mr. Justice Brian Weagant of the same court cited "the wide variety of judicial interpretations" of Section 43, and said the law "begs for legislative reform." Anne McGillivray, a law professor at the University of Manitoba, said in a telephone interview that the vagueness makes Section 43 "a legal lottery." The interpretation of "reasonable under the circumstances" is subject to what she called "the judicial childhood test," meaning subject to a judge's own childhood experience. McGillivray cited the case of an 8-year-old Winnipeg boy who opened a pack of sunflower seeds after his father told him not to. The father kicked the boy several times and hit him across the shoulders, leaving a mark. The father was convicted of assault causing bodily harm and sentenced to anger management counselling. He appealed to the Manitoba Court of Appeal and, in 1994, was acquitted. "The discipline administered to the boy in question in these proceedings," said the appeal judge, "was mild indeed compared to the discipline I received in my home. There were times when I thought my parents were too strict, but in retrospect I am glad that my parents were not subjected to prosecution or persecution for attempting to keep the children in my family in line." Because of the ruling, McGillivray said, fewer child-abuse cases are coming to court in Manitoba. To get a conviction, prosecutors know they must prove that parental force was more severe than punching and kicking. Similarly, the Toronto-based Repeal 43 Committee, the country's foremost lobby group on the issue, says parents are successfully invoking Section 43 as a defence for child abuse. The committee compiled a list of 22 such precedents set between 1990-2001. In Newfoundland two years ago, a father who struck his 14-year-old daughter with a belt, leaving welts and bruises on her legs, was acquitted under Section 43. In Ontario two years ago, a father who struck his 11-year-old son with a belt leaving a buckle-shaped mark on his thigh was similarly acquitted. In Saskatchewan in 1987, in a case McGillivray cited, a man and a woman who stripped their two nieces, 13 and 14, to their underwear, tied their hands to a basement clothesline and strapped them across their buttocks, were judged to be carrying out "corrective" and "reasonable" punishment. "We see (Section 43) used (in cases where) parents not merely spank their children, they use weapons," Paul Schabas, lawyer for the Foundation for Children, Youth and the Law, told the Supreme Court judges. "They use implements on children. They cause injury. They strip children and hurt them." Apart from the vagueness of "reasonable," children's advocates said in interviews, the law wrongly puts its seal of approval on spanking. "Parents interpret Section 43 not as a defence against assault but as a general permission to use force against children," said Alfred Mamo, lawyer for the Children's Aid Society in the high-profile Church of God case, in which seven children were found to be in need of protection last March after being punished with objects by their parents. "Section 43 sends parents and teachers the message that it's okay to hit children, that it's `justified,' which in law means `morally correct' and `rightful,'" said Corinne Robertshaw, founder and national co-ordinator of the Repeal 43 Committee. "We say there is a connection between giving that message and the fact that a lot of children are injured during the course of corporal punishment." Sometimes, studies have found, parents don't realize how hard they are hitting. And sometimes a child can build tolerance to pain so that the parent must hit harder to get results. Physical punishment, in such cases, can result in abuse. "Most cases of child physical abuse occur during episodes of physical punishment," says a Joint Statement on Physical Punishment of Children and Youth, signed by more than 70 Canadian health and child care organizations, including Toronto Public Health. "Physicians should actively counsel parents about discipline," the Canadian Pediatric Society said in a new policy directive yesterday, "and should strongly discourage the use of spanking." `Parents interpret Section 43 not as a defence against assault but as a general permission to use force against children' Lawyer Alfred Mamo For people coming late to the Supreme Court of Canada case, often the biggest surprise is that Ottawa, while defending Section 43, also takes an anti-spanking position. "Personally and professionally, not one of the attorney-general's witnesses advocates the use of physical discipline," Roslyn Levine, the lead federal lawyer in the case, said in her written brief to the high court. Among professionals in the field, there is "stunning agreement" that spanking is an objectionable method of child-rearing, she also said. Levine did take exception to some of the anti-spanking arguments raised. "Spanking is not abuse," she said. And there is no evidence, she also said, "that the use of physical punishment causes child abuse." But Levine explicitly endorsed Health Canada's position: "It's never okay to spank children. It's a bad idea and it doesn't work." For the federal government, the case is not about whether spanking is good or bad. Rather, for the government, the case is about the need to protect parents and schoolteachers from unnecessary interference from the criminal justice system. If any unwelcome force, no matter how mild, is a criminal act, Levine argued, then the Section 43 defence is necessary. It protects parents from criminal prosecution for administering what in Canada is a broadly accepted child-discipline method. "(Abolishing Section 43) would be opening the doors to invasion from the state," said Gwen Landolt, national vice-president of REAL Women. The group has intervener status in the court case as one of four self-defined conservative organizations collectively calling themselves the Coalition for Family Autonomy. "If somebody didn't like you and reported that you spanked your children, your children were crying and screaming, you would have to be investigated," Landolt said in an interview. "There would be a legal obligation to investigate you and every family would be vulnerable." In court, Levine made the same point. "The criminal law is a blunt instrument in the family context," the government lawyer said. (She did not argue the case of schoolteachers). "Parents need the ability, without fear of criminal sanction, to exercise ... their responsibilities." Canadian Teachers Federation lawyer Allan O'Brien said the Section 43 defence is needed for another reason. If any unwelcome force is a criminal act, he argued, then a teacher "physically removing a student from a classroom by the arm," would otherwise be subject to criminal prosecution. One Supreme Court judge gently mocked the suggestion. "Well, there is an offence in the Criminal Code for uttering threats," Madam Justice Louise Arbour said. "I do not know of any floodgates of prosecutions for uttering threats." A "principle of restraint" operates in criminal law enforcement, she said, meaning that fear of arrest for restraining a student would be taking the law too literally. Ultimately, both main parties to the Supreme Court case agree on two fundamental issues. Both agree that spanking is bad parenting. And both agree that to criminally prosecute a parent or teacher for spanking would be wrong. Disagreement comes only over predications as to what might happen if Section 43 were abolished. The children's advocates argue that scrapping Section 43 would send a clear message to parents and teachers: "It is never okay to spank a child," a point on which all main parties agree. The federal government argues that getting rid of Section 43 would expose widely accepted family child discipline practices to criminal prosecution, something everybody agrees would be wrong. The solution, say children's advocates, is to send a clear message and enact other measures to prevent criminal prosecution. "Prosecution is not the way to go," Robertshaw of the Repeal 43 Committee said in an interview. But if Section 43 were abolished, she said, trivial acts of spanking would no more be prosecuted than motorists are fined for breaking the speed limit by 5 km/h. In cases of more than trivial significance, "the best way to handle them would be for the Children's Aid Society to get involved and to help the parents understand that disciplining a child (by spanking) is potentially harmful," Robertshaw said. Michael Menear, a lawyer in London, Ont., who acted for the father in the Church of God case, said he trusts parents to use reasonable force on children more than he trusts authorities to deal reasonably with parents. The Ontario Association of Children's Aid Societies, he pointed out, is actively anti-spanking. "I think there is a fairly activist mentality among social workers, more so than police, to right the wrongs of the world, to social engineer, to tell parents they know more about how to parent their kids than the parents themselves," Menear said at his London office. "That (activism) is going to break out in some form or another at some time. The question is whether the law reins that in (through Section 43), or whether it is allowed to express itself." Academic researchers said prosecution of parents for mistreating their children has not increased in countries that have prohibited spanking. Sweden was the first country to ban spanking in 1979. Finland, Denmark and Norway followed, along with Austria in 1989, then Cyprus, Italy, Latvia, Croatia, Germany (2000), Israel (2000) and recently Iceland. "In Sweden, it was never the idea to prosecute," said Joan Durant, head of family studies at the University of Manitoba and an expert witness for the Foundation for Children, Youth and the Law. "The idea was to send a clear message and to change attitudes. Once in a while, a (Swedish) parent might still make a mistake and spank a child, but that's how it is viewed ‹ as a mistake." Susan Bitensky, a Michigan State University law professor and a leading international scholar in the field, holds a similar view. "The experience in all of the countries that have in one way or another banned corporal punishment of children," she said, "is that parents or other adults have not been hauled into court and prosecuted. There has not been a breakdown of the parent-child relationship. The criminal courts have not been overloaded. In all of those countries, the basic approach has been prosecutorial restraint." In the Supreme Court of Canada, three main outcomes are possible. The court could uphold Section 43, retaining the status quo. The court could abolish the section and recommend guidelines on how police and prosecutors might deal with child assault as discipline. Or, guided by a lower-court finding, the judges could recommend to Parliament how to rewrite Section 43 to permit only certain types of spanks and hits to certain body parts. One thing is certain: Until Section 43 is abolished, criticism will continue from the UN committee monitoring the Convention on the Rights of the Child. "The Committee is deeply concerned that (Canada) ... has taken no action to remove Section 43 of the Criminal Code," it wrote to Canada in October. The committee is systematically taking up the spanking issue with all other signatories to the convention as well |
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