By Peter Stock The Interim

Spanking is okay … sometimes.

So says the Supreme Court of Canada. In a 6-3 decision, the court upheld as generally constitutional Section 43 of the Criminal Code, which provides an exemption from criminal prosecution for parents, teachers, police or other authority figures who use “reasonable” physical force to restrain or discipline a child.

The majority of justices agreed that, “The decision not to criminalize such conduct is not grounded in devaluation of the child, but in a concern that to do so risks ruining lives and breaking up families – a burden that in large part would be borne by children and outweigh any benefit derived from applying the criminal process.”

Justice Marie Deschamps, whose opinion was in the minority, offered another viewpoint by calling parents who spank “misguided.” She stated, “The government’s explicit choice not to criminalize some assaults against children violates their dignity. Section 43 perpetuates the notion of children as property, rather than human beings, and sends the message that their bodily integrity and physical security is to be sacrificed to the will of their parents, however misguided.”

While Justice Deschamps’ ideas did not carry the day, the judges of the majority still decided to narrow the use of spanking through their decision. They ruled that Section 43 will not exempt parents who spank children younger than two or older than 12, or who use an object such as a belt or stick to spank.

That has Canada Family Action Coalition president Dr. Charles McVety worried. “I do not want to see mothers go to jail for using a corrective, non-damaging tap on a 23-month-old child who needs to learn to stay away from danger. This (ruling) makes it very clear that the law has been changed and ‘immunity’ from criminal prosecution will not be granted if a parent uses non-damaging physical corrective measures on a child under two years of age or over 12, or if an instrument is used at any age,” McVety told The Interim.

In addition, he said, “Many childrearing experts recommend that the hand should not be used for corrective discipline. Instead, an inanimate object, such as a wooden spoon, should be used. However, the child should never be damaged. The hand should be reserved for loving and caring. The courts has now made criminals of those who obey such logical instructions.”

Canada Family Action Coalition intervened in defence of parental rights in the constitutional case, along with the Home School Legal Defence Association, Focus on the Family Canada and REAL Women of Canada. This coalition of intervenors privately raised the hundreds of thousands of dollars needed to fight the challenge through the courts.

On the other hand, the radical children’s “rights” group that launched the court challenge to ban spanking, the Foundation for Children, Youth and the Law, received significant funding from the federal Liberal government for its court challenge. The foundation, which ironically claims the spanking challenge was intended to protect children from harm, is infamous for spearheading another court challenge, which ultimately saw the age of consent for sodomy lowered from 18 to 14.

The Section 43 challenge had been making its way through the courts since 1999, when a suit was first filed in Ontario. Critics believe it is likely that much of the foundation’s legal bills for the court challenge were paid out of a secret federal Liberal slush fund known as the Court Challenges Program. The taxpayer-funded, multi-million-dollar CCP agency no longer publishes any details on which court challenges it funds, claiming “solicitor-client privilege,” but the CCP has a history of funding radical causes favoured by its Liberal appointees.

The encouragement given by the Liberal government to narrow interest groups to pursue their agendas through the courts has spurred activism in the legal system, said McVety.

“I believe the Supreme Court of Canada has grossly breached democracy by not interpreting law, but blatantly rewriting it. These new laws are not mentioned anywhere in Section 43 or any other area of the Criminal Code. In a democracy, the writing of laws is strictly reserved for elected members of legislatures. No appointed individual should enact laws. That is only found in dictatorships.”