January 15, 2002 - The Ontario Court of Appeal today unanimously rejected the application to strike down section 43 of the Criminal Code allowing "reasonable" assaults on children for their "correction." The application was brought by the Canadian Foundation for Children, Youth and the Law.
Among other submissions, the Foundation argued that section 43 of the Code violates the right of children to the equal protection and benefit of the law without discrimination based, among other things, on age, This right is guaranteed by seaction 16 of the Canadian Charter and can only be limited if the limitation can be "demonstrably justified in a free and democratic society."
The Court agreed that section 43 violates the rights of children but held that this violation was"clearly justified" under section I of the Charter. It stated that "there is no empirical evidence establishing a definitive long term causal link" between corporal punishment and poor outcomes for children. It went on to say that without section 43, parents and teachers would be prosecuted for "non-abusive physical punishment ". Further, that section 43 "does not approve or encourage corporal punishment, that the risk of physical harm to children Is "modest, " and that "the state is vigorously pursuing educational programs to discourage physical punishment of children."
Corinne Robertshaw, Coordinator, Repeal 43 Commiftee, stated:"Once agan, Ontario courts have missed an historic opportunity to uphold the fundamental rights of children and help prevent their abuse. Ample evidence linking corporal punishment with harmful outcomes, including a serious risk factor for actual Injury, was before the court. Restrictions on tobacco and seat belt and safety helmet legislafion are based on statistical correlations. Proof of "definitive causal" links are not required. Neither should such proof be required to protect our children from the dangers of corporal punishment."Contact: Corinne Robertshaw 416-489-9339
"Failing to strikie down this 19th century defence to assault on the basis that doing so will automatically result in criminal prosecutions for all instances of corporal punishment ignores the many altrnatives to prosecution. It is an alarmist notion that underestimates the flexiblity of our justice system in which provincial guidelines can mandate diversion, counselling, and education rather than prosecution."
"Claiming that section 43 does not approve or encourage corporal punishment and that the risk of physical harm from such punishment is "modest " simply flies in the face of all the evidence presented in this case."
"The statement that the government is vigorously pursuing an educational campaign to discourage physical punishment not only overstates Health Canada's activitities, but also ignores the fact that its message is directly contradicted by the legal "justification" of corporal punishment under section 43."
"This license to hit defenseless children is a legacy of a bygone age that also allowed the physical "correction" of wives, servants, prisoners, and military personnel. Being adults, these classes of citizens have been able to end the law's approval of such "discipline". Children, however, must rely on others to protect their rights. Unfortunately, neither our political leaders nor our judges have yet seen the need to do so."