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Domestic CP - July 2000

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The Globe and Mail, Toronto, 6 July 2000

Judge refuses to ban spanking of children

But he suggests that Parliament clarify law

By Natalie Southworth
The Globe and Mail


Toronto -- Spanking does not violate the constitutional rights of children, an Ontario judge has ruled.

But it may be time for Parliament to amend the Criminal Code, which allows using reasonable force when disciplining children, "to provide specific criteria to guide parents, teachers and law enforcement officials," Mr. Justice David McCombs said yesterday.

"The evidence shows that public attitudes toward corporal punishment of children are changing," Judge McCombs, of Ontario Superior Court, wrote in his decision.

Children's-rights advocates had wanted Judge McCombs to repeal the corporal-punishment law, Section 43 of the Criminal Code. The Canadian Foundation for Children, Youth and Law argued the section provides a convenient legal defence for adults who go far beyond spanking to abuse.

The section has been part of the Criminal Code since 1892.

The judge said parents must have a protected sphere in which to raise their children. But he was quick to point out that reasonable force must be used with the best interests of the child at heart.

"In a very real sense, parental liberty interests and the best interests of children are opposite sides of the same coin."

There were some areas both sides agreed upon, Judge McCombs said in his ruling, including that "corporal punishment should never involve a slap or blow to the head," and if corporal punishment causes injury it is considered child abuse.

Their main source of disagreement, according to the judge, was "the limits of acceptable parental and teacher discipline, and in particular, whether mild forms of corporal punishment are acceptable forms of discipline."

The foundation was most disappointed that the judge did not clarify the term "reasonable force," something all parties in the matter had wanted.

"We intend to appeal the decision. It is not what we were seeking," said Cheryl Milne, one of the lawyers for the foundation.

Superior Court is Ontario's second-highest level in criminal cases.

Ms. Milne said it was encouraging the judge said corporal punishment is wrong, but "viewing Section 43 as desirable contradicts that finding," she said.

In Vancouver, parent Kathy Lynn, head of the B.C. branch of the Repeal 43 Committee, said she was dismayed by the Ontario court ruling.

"In Canada today, a dog has greater legal protection from violence than a child does, and that's intolerable," Mrs. Lynn said.

She said the majority of convicted child abuse cases are simply examples of child discipline run amok.

Mrs. Lynn called on the federal government to fund special courses for parents having difficulty with their children.

"The kind of physical violence against children which Section 43 condones is illegal for adults. It is totally unnecessary as a means of discipline, and is counterproductive in raising responsible children."

Roslyn Levine, the lawyer for the federal government, said she was "very pleased" with yesterday's ruling as it "struck the right balance for parents and children."

"We discourage physical discipline, but what we said was don't criminalize that narrow range of behaviour that includes light spanking."



"Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances."
-- Criminal Code, Section 43

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