Court rules in favour of spanking

Reasonable physical punishment
escapes being branded as criminal

CW Staff

OTTAWA, ON–Spanking received the nod of approval from one of Canada's top courts in January, leaving discipline decisions in the hands of parents and teachers.

In a unanimous decision January 15, the Ontario Court of Appeal ruled 3-0 to uphold a 110-year-old section of the Criminal Code giving parents and teachers the right to use "reasonable" force to discipline.

The ruling culminates months of waiting since hearings challenging the section as unconstitutional began in September 2001 and upholds the July 2000 ruling of Superior Court Justice David McCombs.

The Canadian Foundation for Children, Youth and the Law (CFCYL) launched the tax-payer-funded challenge. Anti-spanking advocates want to see the law struck down because they say it violates the constitutional rights of children to equality, security of person and protection from cruel and unusual punishment.

However, in the new ruling, Justice Stephen Goudge said the foundation had failed completely to show that the law "violates any principle of fundamental justice. The section permits limited physical punishment of the child by a limited class of people without the punishment being a criminal assault.

"[It] carefully defines the limits that must be observed if those actions are to escape criminal sanction."

Making lawbreakers out of parents who spank their children "would hinder them in the discharge of their responsibilities towards those children and harm families," wrote Goudge.

"No country in the world has criminalized all forms of physical punishment of children by parents, which is what accepting the (CFCYL's) position would entail."

The Court did, however, agree with McCombs' earlier stipulations that corporal punishment should not be used against children younger than two, or against teenagers. It should also never involve the use of an object, such as a belt or ruler, and never include hitting the head of the child.

Decision welcomed

Family advocacy groups applauded the January decision.

"We could not have asked for a more resounding victory for families," says Darrel Reid, president of Focus on the Family Canada, one of four national pro-family organizations representing the Coalition for Family Autonomy (CFA). The CFA also includes the Home School Legal Defence Association of Canada, REAL Women of Canada and the Canada Family Action Coalition.

The Canadian Teachers Federation also intervened in defense of Section 43, out of concern that its removal would invite "insubordinate or disruptive behaviour by those students who delight in bullying their peers."

"The ruling is unambiguous in affirming the right of parents to discipline their children in a loving way without the fear of being branded as criminals," says Reid, pointing to recent surveys that have found more than 70 per cent of Canadian parents have spanked their children and 84 per cent say they do not believe spanking should be criminalized.

The news was also welcomed in Aylmer, Ontario, where a trial begins May 27 to determine whether seven children need the protection of the Family and Children's Services. The children were yanked out of their home last summer after their parents, members of the Aylmer Church of God, admitted to spanking them.

"I'm just glad that there are responsible people making the laws," Church of God pastor Henry Hildebrandt told the National Post. "The courts are prepared to give parents the right to train their children."

But not everyone sees the ruling in a favourable light.

"A law that allows caregivers to hit children concerns us deeply," says Matthew Geigen-Miller, director of the Ottawa-based National Youth in Care Network, in a comment published by The Globe and Mail. "Our experience shows us that hitting children has terrible consequences.

Gateway to abuse

"Responsible parents who are in favour of corporal punishment often say they would never spank or hit a child while angry," says Geigen-Miller, who is calling on the federal government to resolve the issue in Parliament.

"Unfortunately, there are countless cases where a parent in an emotionally charged situation began to hit and ended up abusing. By eliminating Section 43, we stop encouraging a discipline method that is known to be a gateway to abuse."

Lawyers for the CFCYL are considering an appeal to the Supreme Court of Canada.

–with files from Today's Family News, Focus on the Family Canada