But judge tells Parliament to clarify limits
By Paul Tuns
The Ontario Superior Court upheld section 43 of the Criminal Code July 5, which allows a parent, schoolteacher or a guardian to spank a child for the purpose of discipline. But while finding section 43 to be no violation of the Charter of Rights and Freedoms, Justice David McCombs nonetheless urged Parliament to re-examine the law.
Using a $50,000 grant from the federal government’s Court Challenges Program and backed by dubious studies about the effects of corporal punishment, the Canadian Foundation for Children, Youth and the Law sought to strike down section 43 of the Canadian Criminal Code, which allows use of reasonable force to correct a child. Cheryl Milne, counsel for the foundation, said the group plans to appeal because they think the law discriminates against children based on their age and that allowing spanking infringes a child’s right to security. But while anti-spanking groups such as the Foundation and the Repeal 43 Committee claim the rights of children are violated by the parent’s right to physically discipline them, they’re central moral argument is the equating of loving, physical discipline with abuse.
Responding to the court challenge initiated in December 1999, Cindy Silver, a Vancouver lawyer and consultant to Focus on the Family Canada, wrote in the December 8 Globe and Mail that the court challenge wasn’t “primarily about protecting children. Rather, it is aimed directly at the authority of the family unit in Canada and, specifically, at the right of parents to make decisions about how best to raise their children.”
Darrel Ried, President of FOF Canada, told The Interim he was happy with the July 8 decision of the judge to let “people who love their children and know them best to bring up their kids in their faith and beliefs as they see fit.” He said the decision was the right one because “there is no serious empirical evidence to show spanking from a loving parent as discipline is harmful to children” and that spanking has a long and universal history of acceptance.
Ried said parents, not “busy-body lobbyists and bureaucrats” should be the ones deciding whether or not spanking is appropriate method of punishment for their children.
Justice McCombs said the law did not infringe on a child’s rights, but suggested Parliament clarify the law to provide clear guidelines to delineate between legitimate punishment and abuse.
Writing in December, Silver said such guidelines already exist. “In 1983 the Supreme Court of Canada developed a detailed set of factors which courts are required to apply when deciding whether the accused’s actions were reasonable. These include the nature of the child’s offence, the age and character of the child, the likely effect of punishment on the child, the degree and method of force used, any resulting injury to the child, and whether the punishment was motivated by arbitrariness or anger. Using these criteria, the courts have been able to distinguish between cases of true assault and those where force was appropriate and justifiable.”
Ried said he was concerned with Justice McCombs’ remarks about Parliament reconsidering section 43. But Janet Epp Buckingham, counsel for the Evangelical Fellowship of Canada (EFC), told The Interim Parliament will seldom consider an issue as it makes its way through the court system and is therefore unlikely to act soon. She also noted that despite a very strong and active anti-spanking lobby, the government has shown no inclination to act on this issue in the past.
Buckingham also said there is no reason for clarification because section 43 clearly does not allow abusive behaviour and that other laws (usually provincial) already address abuse. She said altering or repealing section 43 will not protect children from real abuse.
Buckingham also said she finds it odd that the government is still funding these types of lawsuits. The program was introduced to help create a body of law that implemented the Charter and ensure everyone was protected. But Buckingham said that 18 years after the Charter was introduced she finds it “strange it [the Court Challenges Program] is still in existence.”