Vancouver Sun, British Columbia, 20 November 1998

Critics Prepare Charter Challenge To Spanking

By Colin Perkel

TORONTO (CP) - The issue of spanking children will be thrashed out in court Friday when a Criminal Code provision alowing corporal punishment is put to the test.

A children's rights advocacy group is using National Child Day to launch a Charter of Rights challenge aimed at repealing a section of the code that allows caregivers to use "reasonable" force to discipline people under the age of 18.

Justice for Children and Youth plans to argue that the code's Section 43 violates several provisions of the Charter: those guaranteeing the right to security of the person and equality, and the section prohibiting cruel and unusual punishment.

Sheena Scott, a lawyer for the child justice group, said Thursday a key problem is the lack of clear definition of what constitutes "reasonable" force.

"It's a very subjective standard," she said. "So (court) judgments are all over the map."

Accused have used Section 43 to defend themselves successfully against assault charges in cases as diverse as hitting children with implements like hammers, electric cords and belts, and stripping a teen to her underwear and strapping her buttocks, the group said.

But lawyer Dallas Miller in Medicine Hat, Alta., said the courts are quite capable of deciding when the line between discipline and abuse is crossed. Removing section 43 would result in a "police nanny state" that would turn parents into criminals.

"You cannot equate spanking...on the same plane as abuse," Miller said.

Jim Sclater, a father of three and vice-president of Vancouver-based Focus on Family, argues that critics of the law are trying to undermine parental authority and their right to discipline rebellious children.

"We call it minor pain in extreme circumstances to correct defiant or rebellious behaviour," he said. "A rebellious, defiant child grows up to be a teenage terror and many of them end up being criminals."

But times have changed since the day the old adage of "spare the rod and spoil the child" was the standard discipline mantra, said Deborah Parker-Loewen, the Saskatchewan government's child advocate.

"That was the exact same argument used by men with regard to using force with women - that it was a kindly way of providing discipline and guidance to our wives," she said.

"The use of force against children is simply outdated."

Still, Eric Lowther, Reform party critic on child and family issues, says Section 43 has served Canadians well and should remain in place.

"Parents have a natural authority, Canadian parents know how to exercise it, and that natural authority in the home should be respected.'

Carole Morency, a spokeswoman for the dederal justice department in Ottawa, said Thursday the government has no plans to change the law.

"Section 43 does not authorize the abuse of children in Canada," Morency stressed.

Sociologists and child advocates argue the issue goes well beyond legal niceties or outmoded social mores, saying studies link physical discipline to depression and anti-social behaviour in later life.

For Carley Saye, 11, the issue is clear-cut: no hitting children, ever.

"There's lots of other ways to reason with a kid instead of spanking them, because spanking hurts."

Talk to them or ground them instead, the Toronto sixth grader suggested.

Critics say studies linking spanking to long-term damage don't hold up, and that outlawing all corporal punishment would be absurd.

"Imagine when people can look in your playroom window and see you put your child over your knee and swat him once on the bottom -- you are doing an illegal act if these folks succeed," Sclater said.

Toronto Star, 21 November 1998

Ban right to spank, court urged

Children's advocates are asking an Ontario court to declare unconstitutional the Criminal Code section allowing adults to spank or use other forms of physical discipline on children.

"As a society, we don't give an employer the right to hit an employee . . . we also have laws against abusing a spouse . . . now it's time that children be afforded those same rights and protection," Toronto lawyer Cheryl Milne said at a news conference held by the Canadian Foundation for Children, Youth and the Law and the youth group VOICE.

A court application was filed yesterday, the International Day of the Child, by the foundation in Ontario Court, general division. It asks that Section 43 of the Criminal Code be deemed unconstitutional because it fails to "give children the same rights and protection as adults." A parent who lightly slaps a child on the buttocks when the child tries to run into the middle of a busy intersection shouldn't necessarily be charged. But that child should have the same legal rights as an adult who is hit by another adult, Milne said.

Section 43 allows parents to use physical discipline on a child provided that the force is "reasonable." But the precise definition of reasonable corporal punishment has long been the subject of intense debate.

All too often Section 43 is used as a defence for parents, teachers and other caregivers who are charged with seriously assaulting a child in their care, Milne said.

Five separate private member's bills aimed at repealing the section have already been introduced in the Senate and House of Commons. None has made it past second reading.

The foundation expects the case to be heard within six months. It plans to introduce evidence showing that corporal punishment is a form of child abuse which perpetuates an acceptance of violence in society.

More than two-thirds of assaults on children under the age of 3 reported in 1996 were committed by family members, Milne said.

Italy, Sweden, Finland, Norway, Denmark and Austria have passed legislation prohibiting corporal punishment.

Copyright (c) 1998 Toronto Star, All Rights Reserved.

CANOE (Canadian Online Explorer), 26 November 1998

Should kids get a lickin'?

Court battle coming over whether you should spank children to punish them

To spank or not to spank? That's the question facing Ontario's judicial system as a children's protection agency attempts to outlaw corporal punishment.

The answer will affect millions of Ontario families and could set a Canadian precedent.

Spearheading the battle is Sheena Scott, lawyer and legal director of the independent, non-profit Justice for Children and Youth. She's fighting to repeal Section 43 of the Criminal Code that allows caregivers to use "reasonable" force to punish kids under 18.

Toronto parent Bill Johnson opposes Scott's move to ban hitting. Johnson, "a closet spanker" who requested a pseudonym, insists parents should be able to slap their kids.

The 42-year-old father of two used spanking as "a last resort" to correct the unruly behaviour of his two children when they were between three and nine.

"I'd give them a quick slap across the butt or a clip around the ear," says Johnson, whose eldest child is now 12. "I stopped when they were 10 because, at that age, you can reason with them and spanking becomes less effective."

Ross Watson (not his real name) ended his whacking ways after his wife slapped their cheeky seven-year-old across the face during a car trip from hell.

"My daughter said, 'Mommy, that really hurt,' and started crying. We looked at each other, realizing we were hitting out of frustration. These are little people who can really get hurt. We also noticed that when we spanked, the kids became more aggressive towards each other."

Rights violation

Fred Mathews, director of Central Toronto Youth Service, agrees. "Hitting and spanking teach that violence is a legitimate means to deal with anger and frustration. These children often encounter behavioural problems at school."

Small spanks potentially lead to larger ones, Mathews adds. "The bigger the child, the more strength you have to use. Once he or she begins fighting back, it takes more force to contain a larger child."

Many agencies have thrown their support behind Scott, including the Children's Aid Society of Metropolitan Toronto.

"Our experience in child welfare shows 85% of substantiated abuse cases began with attempts to discipline by corporally punishing children," says executive director Bruce Rivers.

The Repeal 43 Committee, headed by Corinne Robertshaw, is ecstatic its hard-fought dream may come true.

"Corporal punishment is a violation of a fundamental human right to be protected by law against assault," she says. "Bill 43 is a clear case of allowing only one group of citizens to be assaulted for correction. It just so happens they're defenceless children who are in need of the greatest protection of the law."

'Assume ownership'

Section 43 contravenes another section of the Charter of Rights, which says Canadian children are entitled to equal protection, Robertshaw adds. It also violates the United Nations' Convention on the Rights of the Child, signed and ratified by Canada in 1981.

Some parents "assume ownership" of their children, she says, forgetting kids have rights of their own.

"Unfortunately, a number of them aren't aware of other ways of disciplining, training and teaching their children."

Alternate methods include "time out," temporarily suspending privileges and, within reason, allowing children to experience the consequences of their actions.

The pro-spanking camp also has its supporters.

Bruce Clemenger, director of national affairs for the Evangelical Fellowship of Canada, advocates the current wording of Section 43 because it allows a judge to punish child abusers yet overlook "non-abusive physical discipline." The group accepts corporal punishment if it's "age-appropriate, not meted out in anger and done appropriately."

'State intrusion'

Mark Genuis, executive director of The National Foundation for Family Research and Education, stresses the need to differentiate between child abuse and spanking to discourage incorrect behaviour.

But he insists there's a need to respect the rights of the majority of parents who don't abuse their kids.

"We must expect them to be competent to make the best decisions they can on a day-to-day basis for their children and families. This is the real issue. Who's in the best position to care for Canada's children and make the day-to-day decisions?"

Focus on the Family, a Vancouver-based traditional values group, agrees.

"If Section 43 is removed, it places the state more squarely between the parent and child than ever before and, ultimately, that cannot be in the best interest of kids," says legal consultant Cindy Silver. "State intrusion should be allowed only in matters of abuse and neglect. Then the onus to prove abuse should be on the state, not on the parents to disprove it."

Paper war

But a paper war -- not a drag 'em out court fight -- will determine the legality of slapping Ontario children.

It could take up to one year to make a decision, says Scott. "We have filed affidavit material and the Crown has the opportunity to respond."

A court date has been set for Jan. 12, but legal disputes could postpone proceedings, she adds.

Ironically, Scott's crusade is funded by a federal program enabling people to challenge equality-based laws.

An Ontario victory wouldn't affect other provinces, Scott explains. Each would have to challenge the law in their own jurisdiction unless the court issues a blanket repeal.