A blow against justice for children-- The decision that spanking is constitutional is strikingly retrograde, says a lawyer, By Corinne Robertshaw, The Globe and Mail, July 7, 2000

Mr. Justice David McCombs has missed an historic opportunity to uphold the right of children to the same legal protection from assault that we adults take for granted. He's the Ontario Superior Court judge who has just ruled that spanking does not violate the constitutional rights of children.

We adult Canadians assume that no one has the right to hit us to correct our behavior. And we assume that the law respects this right. Children, however, do not have this protection and cannot assume that the law grants it. This is because Section 43 of our Criminal Code gives parents, teachers and substitute parents the power to use corporal punishment for "correction" by making it a defence to a charge of assault.

This section was incorporated into our Criminal Code in 1892. It is itself a legacy of past centuries of English common law that sanctioned the corporal punishment, not only of children, but also of wives, servants, apprentices, persons convicted of crimes, and others.

Adults subject to such correction were able over the centuries to assert their right to legal protection from such "corrective" assaults. Children had to wait until the 1970s -- and in particular the United Nations International Year of the Child -- before a sufficient number of adults began to question this antiquated legacy. It has been questioned and discussed by commissions, legislators and the judiciary in a number of countries. But not in Canada.

Unfortunately, Judge McCombs's overriding concern is to protect parents and teachers rather than children. While finding that there is a growing consensus that corporal punishment does more harm than good, that even mild corporal punishment may cause harm, and that Section 43 "seems" to have sanctioned violent child abuse, he nevertheless finds that the section does not violate the rights of children -- indeed, is actually in their best interests, and is therefore constitutional.

He accepts the federal government's argument that it has a rational strategy to allow parents and teachers to use corporal punishment. Yet even as the Minister of Justice is advising that the corporal punishment allowed by Section 43 is quite acceptable, the Minister of Health is advising that it's "a bad idea."

This contradiction is accepted because of concern that parents could face criminal prosecution for using reasonable force to put an unwilling child to bed or administering a single spank to a child's bottom. Parents must have a "protected sphere of activity" even if the corporal punishment allowed by the section has resulted in kicks, bruises and beatings.

How realistic is the judge's concern? Already, inappropriate prosecutions can be avoided in several ways. The de minimus rule prohibits prosecutions for trivial breaches of the law. Provincial attorneys-general can issue guidelines to avoid prosecution where better alternatives exist. These guidelines can be further refined by police, prosecutors and child-protection workers in consultation with other relevant community groups. Even where severe assault occurs, the case can still be diverted from the criminal-justice system and an alternative followed.

Judge McCombs also appears to accept the argument of the Canadian Teachers Federation that Section 43 is needed to allow teachers to restrain unruly students and to remove them from the classroom. The counter-argument -- that teachers already have such power under the common law, the Criminal Code, and provincial education statutes -- is not dealt with. It seems that teachers require every possible available defence, even if the Section 43 defence also contributes to the problem of child abuse. The "chilling" effect on teachers of removing Section 43 is more important, in the judge's opinion.

Judge McCombs's solution to the problems posed by Section 43 is to have Parliament set out specific criteria to ensure that only mild or moderate spankings would be allowed. These criteria would apparently indicate how, when, where, with what, at what age, and, presumably, how often, a child could be hit for "correction."

I'd argue that this does not answer the problem. For one thing, it retains the principle that hitting is a legitimate form of discipline. Further, it increases, rather than decreases, the need for prosecutions as prosecutors attempt to test the limits and parameters of the criteria.

The rational way to deal with the anachronisic and dangerous defence of Section 43 is to get rid of it. The rights and protection of children would thus be upheld, and parents and teachers given a clear message that hitting is no longer an acceptable method of correction.

And Canada would not be breaking new ground in doing this. Since 1979, 10 countries have repealed this defence by legislation or judicial decision. These include Austria, Italy and Israel.

At a time when research shows that at least 10,000 cases of physical abuse occur each year in Ontario alone, and that almost all begin with attempts at "correction" by corporal punishment, it is time to address one of the major roots of the problem. It's difficult to understand how Judge McCombs can hold that Section 43 does not increase the vulnerability of children and is in their best interests. Canada's children will have to wait a little longer to have their needs recognized. If the government doesn't do so, an appellate court will.

Corinne Robertshaw is a retired lawyer and founder of the Repeal 43 Committee.

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