OTTAWA, ON-Parents are still allowed to spank their children without fear of criminal charges, as long as they stay within certain parameters.
The Supreme Court of Canada upheld the 112-year-old "spanking law" by a 6-3 margin on January 30. Formally known as Section 43 of the Criminal Code, the law allows parents to use "reasonable force" when disciplining their children.
Parents, family associations and teachers’ groups applauded the ruling, which echoes that of the Ontario Court of Appeal in January 2002, while formalizing some new limitations.
Parents may use "reasonable force," but cannot spank children younger than two years old, or older than 12. Objects other than an open hand are outlawed, as are blows to the head. The force cannot cause harm, be degrading, cruel or administered out of anger.
"This decision is a long overdue voice of common-sense coming from the highest court in our country," says Darrel Reid, president of Focus on the Family Canada, who argued in favour of upholding the law as part of the Coalition for Family Autonomy. (Other members include the Home School Legal Defence Association of Canada, REAL Women of Canada, and Canada Family Action Coalition.)
"It reinforces what Canadians already know: child discipline is a matter best left to parents, not the government," says Reid. "We’re very pleased that the Court chose to reject the arguments of those who would send parents to jail for spanking their children."
Charles McVety, president of the Canada Family Action Coalition, also welcomed the news, albeit cautiously.
"I applaud the effort to protect children, however 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," he says, questioning the Court’s age restriction.
He also questions the use of an open hand to spank. "Many child-rearing experts recommend that the hand should not be used for corrective discipline," he says. "The hand should be reserved for loving and caring."
The Canadian Foundation for Children, Youth and the Law (CFCYL) led the way arguing for the abolishment of Section 43, which they say infringes on the right of children to protection and security as per the Charter of Rights and Freedoms.
CFCYL lawyer Cheryl Milne says the group is "obviously disappointed. We were hoping that they would strike down the section."
However, she told the Canadian Press, the CFCYL takes some solace in the new, stricter guidelines. "It’s a better judgment than the courts below, so we have gained some ground."
Minor force
The Court also ruled that teachers may not use any form of corporal punishment, although they may use "coercive force" to restrain children to gain compliance.
Teachers and parents should use "only minor corrective force of a transitory and trifling nature," said Chief Justice Beverley McLachlin. The "reasonable force" defence only applies in cases of "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. Degrading, inhuman or harmful conduct is not protected."
Section 43 has long been a contentious issue, particularly since the CFCYL declared the law unconstitutional in 1998, and launched their first court challenge.
Since that time, spanking made headlines in 2001 when several children were forcibly removed, and then returned, to a Christian family in Aylmer, Ontario who use corporal discipline, and again last April when a former nun in Prince Edward Island was jailed for beating children with a wooden paddle.
