Taxpayers footing the $45,000 bill through Court Challenges Program

Commentary by Charles W. Moore
The InterimA small, but strident and extremely self-righteous minority of leftist social engineers in this country are bound and determined to criminalize parental corporal punishment – also known as spanking.

At issue is Section 43 of the Criminal Code, which provides a defence to parents and teachers charged with assaulting a child, only if they are able to prove that their actions were “reasonable” under the circumstances and intended for the child’s correction.

This month, the Canadian Foundation for Children, Youth and the Law (financed with 45,000 of your tax dollars from the federal government’s Court Challenges Program) is presenting a case before the Ontario Court of Justice (General Division) that Section 43 should be ruled unconstitutional. They contend that any form of corporal discipline constitutes child abuse, and therefore violates the Charter of Rights and Freedoms and the United Nations Convention on the Rights of the Child.

The Coalition for Family Autonomy, an alliance of family-advocacy groups which formally filed as an intervenor in the case, counter-argues that Section 43 does not authorize child abuse, and specifically limits physical discipline to what is reasonable. In any case, excessively violent and neglectful parents who abuse their children are already dealt with under Section 26 of the Criminal Code.

“The existing child-protection laws already give authorities all the power they need to intervene in families and protect children,” says Cindy Silver, a Vancouver lawyer acting as a consultant for the Coalition.

“The main concern of the Coalition’s partners,” Ms. Silver added, “is that parents be free to decide how best to raise their children, including the kind of correction that’s appropriate in a given circumstance, without fear of being unduly second-guessed by government agencies.”

“Striking down Section 43 won’t give children greater protection than they have right now,” Silver warned, “but it will remove the last defence parents have against wrongful prosecution.”

Most Canadians think that’s obvious common sense. While only 21 per cent of Canadian parents corporally punish their children, a 1995 Toronto Star poll found that, by a ratio of almost six to one, people said spanking was acceptable as discipline in certain situations. So did 73 per cent of respondents to a 1995 Canadian Living poll. Over 80 per cent of the respondents to an informal 1998 CTV Sunday Report poll supported retention of Section 43.

The ideological notion that striking a child can’t be justified under any circumstances contradicts of thousands of years of parenting experience. Claims that corporal punishment teaches violent behaviour fly in the face of historical fact:when spanking was used much more liberally than it is today, levels of social violence were certainly far lower.

Peter Stock of the Canada Family Action Coalition maintains that the court challenge to Section 43 has been launched because anti-spanking zealots are frustrated with Parliament.

“MPs recognize that they have no right to interfere in the affairs of the family,” Mr. Stock told ChristianWeek. “A parent who beats a child is an abuser. A parent who spanks is a loving parent.”

Indeed there have been six private member’s bills introduced over the past seven years to repeal section 43, but Parliament has sensibly shown no interest in outlawing spanking.

“This is a matter of social policy and the courts are a terrible place to decide this issue,” Toronto Liberal MP John MacKay told ChristianWeek, adding that the anti-spanking legal challenge is a “Kalfkaesque experiment” and an “encroachment into matters of the family.”

However, despite parliamentary disinterest, and minuscule public support, don’t look for Canada’s anti-spanking ideologues to give up, even if their current court challenge fails.

The present law allows police and judges discretion to evaluate whether or not a parent’s disciplinary behaviour has exceeded the boundaries laid down in Section 43. Spanking is legal, in other words, but violent beatings are not. That seems perfectly reasonable to most Canadians, but not to ideological extremists who seek to ban any form or degree of corporal punishment.

“In my opinion,” says Reform MP Grant Hill — a medical doctor, “using force is a responsible way to discipline children but it must not go beyond reasonable force …. Spanking and disciplining in this manner has been part of parenting for centuries. I do not believe that the social engineers and interfering law-makers of today know better than the generations of parents who reared their children using spanking.”

Ultimately, this is a philosophical dialectic, with no clear-cut science backing either side. Two studies on corporal punishment published by an American Medical Association journal last year contradicted each other. One indicated that spanking increases incidents of misbehavior, the other concluded that spanking either lowers or leaves unaffected children’s aggression levels.