Justices deeply divided in 6-3 decision

Ruling says infants, teens should not be hit

OTTAWA—Parents should not be slapped with criminal charges for every slap on a child's bottom, the Supreme Court of Canada says.

But for the first time, the high court has issued guidelines that say spanking teenagers or children under age 2, hitting a child in the head, or using objects like belts or rulers are actions that go too far.

In a deeply split 6-3 decision, the court ruled yesterday the so-called "spanking" defence in Canadian law does not protect or excuse "outbursts of violence against a child motivated by anger or animated by frustration."

Still, parents, their stand-in caregivers, and teachers may use reasonable force if it is for "educative or corrective purposes," Chief Justice Beverley McLachlin wrote for the majority.

"The reality is," wrote McLachlin, that without such a defence, Canada's "broad assault law would criminalize force falling far short of what we think of as corporal punishment, like placing an unwilling child in a chair for a five-minute "time-out."

Lawyers for the federal government and conservative-minded "family values" groups applauded the ruling.

"Parents can breathe a sigh of relief today that they will not be criminalized for lovingly disciplining their children," said Michael Martens, of Focus on the Family, one of several groups that intervened in the case as the Coalition for Family Autonomy.

"It doesn't give parents free rein at all. In fact, it provides the clarity that is necessary to tell parents exactly what they can and cannot do," said Roslyn Levine, a lawyer with the federal justice department.

"As the chief justice said, this allows parents to know exactly what the risk zone is, and I think the court was very clear on what those guidelines are."

But the ruling surprised and disappointed some children's advocates.

"The social science evidence didn't go so far as to say it's okay to hit a child over 2. Where's the magic number? It's arbitrary, isn't it," said lawyer Paul Schabas who represented the Canadian Foundation for Children, Youth and the Law, the advocacy group that launched the original court challenge.

"To the extent that they (the judges) are relying on the social science evidence, the evidence is that it's never okay to hit a child, even on the government side. That's the irony of this."

McLachlin conceded courts have "sometimes been unclear and inconsistent, sending a muddled message as to what is and is not permitted" under Section 43 of the Criminal Code.

That's the section that protects parents and teachers against assault charges when they use force that is "reasonable under the circumstances." It's a defence that has been on the books in various forms since 1892, a section dissenting Justice Louise Arbour said is no more clear now than it was then.

So the majority of high court judges attempted to spell out just what can and cannot be done in the name of discipline.

They set stricter limits on teachers, saying they must not use force as punishment, only to remove a disruptive child from a classroom or get children to comply with instructions.

The law, the court said, is aimed only at "sober, reasoned uses of force that address the actual behaviour of the child, and are designed to restrain, control or express some symbolic disapproval of his or her behaviour."

Furthermore, the child must be old enough to understand why they are being hit; not disabled or incapable of learning from the "corrective" disciplinary action; and not harmed by it.

Citing expert evidence, the court said corporal punishment harms children under 2 who don't learn from it, and teenagers because "it can induce aggressive or antisocial behaviour."

The ruling by the country's top judges, all of whom are parents or grandparents, reflected divisions in the country over how children ought to be disciplined.

McLachlin, along with justices Charles Gonthier, Frank Iacobucci, John Major, Michel Bastarache, and Louis LeBel said the protection of law may be invoked only in "the mildest forms of assault."

They found it does not infringe on the rights of children, is not too vague, and properly kept families and educators out of the criminal courts in minor cases, while protecting children from abusive treatment.

To criminalize minor "corrective" behaviour by adults that does not harm a child "would harm children more than help them," the court wrote.

"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," McLachlin said.

Justice Ian Binnie dissented in part, saying he would not have extended any defence to teachers who use force. Binnie said while order in the schools may be a legitimate objective, it doesn't justify "immunity for the criminal assault of children."

But in a stinging dissent, Justice Arbour said the problem is lower courts have never consistently determined when discipline crosses the line into abuse or assault, resulting in an unconstitutionally vague law that should be re-written by Parliament, not the court.

Justice Marie Deschamps agreed and went further, saying the law also infringes a child's equality rights to the equal protection of the law.

It "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," Deschamps wrote.

Children's advocates yesterday said while they were encouraged the court moved to narrow what kind of physical discipline is allowed, it still sends the wrong signal.

Peter Dudding, of the Child Welfare League of Canada, said the ruling is the "worst case kind of scenario."

"The research does show that in many cases of child abuse, it started off rather more innocently with the good intentions around the discipline or physical punishment, but ends up in a situation that's out of everybody's control and where children are harmed."

He said while the court finds the law constitutional, "that doesn't say then that the law should remain the same. Public opinion changes as we gain evidence and knowledge about these things, so I think the battleground will now shift to our political leaders and doing what is right on behalf of children."

Two private members bills to outlaw spanking have failed in recent years in Parliament, but Dudding said Prime Minister Paul Martin should undertake to review the law. Marvin Bernstein, director of policy development for the intervener, Ontario Association of Children's Aid Societies, said he was disappointed the court did not strike down the law, noting it has been successfully used to justify situations "where children have suffered significant injuries after being hit with belts sticks, extension cords, in some extreme cases, even a hammer and a horse harness."

"The bottom line is that there is still a defence in the Criminal Code," he said, adding it will be difficult for social workers trying to educate parents to convey the nuances of the judgment, especially in cases where they are trying to educate parents not to use force on children.

"Many parents think they have absolute immunity," he said. "How does this get conveyed?"

Bernstein said the court took account of some social science research, but noted the literature is "rife with examples" of the effects physical punishment has on children. He said it is linked to aggressive behaviour toward peers, and to those children being over-represented in the youth and adult criminal justice systems. Such children risk becoming abusive parents and spouses, and often develop mental health problems, and are at "risk of alcoholism, and anxiety disorders."

But Brent and Paula Whaley, who home-school their four children, and who support one of the groups in the Coalition for Family Autonomy, cheered the ruling. They took daughter Victoria, 13, to the foyer of the high court yesterday to watch and speak to reporters.

"Every child is different," said Paula. "And there are children who are wilful, and when they're toddlers and when they're younger children, we believe that corporal punishment has been effective in our home."

Victoria, whom her mother said never had to be spanked, added: "I know that my parents always loved me and that I've always been safe, and I agree that the law should be upheld, for families in next generations, and if I had any kids I would discipline them in love."