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Domestic CP - September 2001

masthead Toronto Sun, 12 September 2001

Feds Defend Spank Law

Parents Know Limits To Corporal Punishment: Lawyer

By Gretchen Drummie
Courts Bureau

A federal government lawyer yesterday told Ontario's highest court yesterday that the so-called spanking law provides a balanced approach to a complex social issue and should stand.

Roslyn Levine, lawyer for the attorney general's office, said Section 43 of the Criminal Code allows leeway for parents who have a difficult time raising their children, while providing protection for the kids.

Levine had just begun her response to a constitutional challenge to the section by the Canadian Foundation for Children, Youth and the Law (CFCYL), when Osgoode Hall was evacuated as a security precaution in response to yesterday's terror attacks in the United States.

But before the hearing was interrupted, Levine told the three- judge panel it's not about "pitting children's rights against parents' rights."

Last year the CFCYL challenged Section 43 on behalf of Saskatoon mother Ailsa Watkinson, arguing it gives abusive parents and teachers a legal shield. But Superior Court Justice David McCombs dismissed the bid and it's his ruling which the children's rights advocates are appealing.

CFCYL lawyer Paul Schabus had argued a day earlier that spanking is assault and the section should be struck.

He said giving parents the right to spank makes "second-class citizens" of children.

Levine said Justice McCombs had given the issue "perfect consideration."

She said the government's approach has been two-pronged -- it sanctions a limited amount of force but also provides education to parents informing them there are better ways to discipline children. The government, she said, has chosen to keep the section for the narrow range of activities parents might use while informing them of other ways to correct kids.

Levine said it appears the education is working as the large majority of Canadian parents understand the limits of Section 43.

She said Canadians believe such actions -- including a slap in the face, caning, any punishment that results in bruising -- are prohibited. Canadians, she said, "have clearly received the message and believe this behaviour is illegal."

'Not desirable'

Levine said increasing prosecutions against parents and intervention into the family life is "clearly not desirable."

But Greg Richards, a lawyer for the Ontario Children's Aid Society, an intervenor backing the removal of the section, said it infringes on the rights of children.

"The problem with Section 43 is that it creates a climate in which corporal punishment is a right of parents. The difficulty is that in an effort to punish a child there is this continuum of violence and it escalates," Richards said.

masthead Calgary Sun, 27 September 2001

Assault On Logic

'Spanking Law' Challenge Could Have Wide Impact

By Kevin Martin
Calgary Sun

Lost in the overwhelmingly horrific events which have besieged our world over the past 16 days has been a significant and misguided attempt to change the landscape of Canadian law.

As terrorists hold the public's undivided attention, a special interest group's attack on Canada's so-called "spanking law" has managed to slide under the collective radar of most media.

And while it won't alter history the way the attack on America will, the result of the constitutional challenge to Section 43 of the Criminal Code could still have a significant, far-reaching impact on the lives of most Canadians.

The Canadian Foundation for Children, Youth and the Law wants the Ontario Court of Appeal to rule the legislation is a violation of children's equality rights under the Charter.

Children are treated as "second-class" citizens under the section, federation lawyer Paul Schabus told a trio of Ontario appeal court judges when the case commenced Sept. 10. "Hitting children is not caring for them," Schabus argued.

The target of the group's attack is a law which permits schoolteachers, parents, or persons standing in the place of a parent, to use justifiable force "by way of correction toward a pupil, or child."

The federation argues the law acts as a shield behind which abusive parents (and teachers) can hide.

Schabus said corporal punishment is "wrong, it does no good and causes harm."

He added "spanking is a bad idea and doesn't work.

"We're challenging the section because it permits the assault of children."

Well, he's right, the legislation does permit assault of children, but only in very limited circumstances.

While the law allows parents and teachers to use force to protect children from themselves (and anyone who has dealt with kids knows how often that's necessary), it doesn't give abusive adults carte blanche.

Child abuse is still a crime in Canada and one which can often result in severe punishment for its perpetrators. Even calling the legislation a "spanking law" does not do justice to the intent of the Criminal Code section. It doesn't condone parental assaults, it allows for the use of necessary force.

A mother or father who violently grabs a child by the arm (perhaps even bruising them) commits an assault. But Section 43 permits such an assault if it's done, say, in the course of stopping a toddler from running into traffic.

Equally, holding a teenager prisoner in his or her room would constitute unlawful confinement.

However, if it's 3 a.m. and the teen is hellbent on leaving the house to join a group of ne'er-do-well friends, the action of the parent may be justifiable.

And cases where corporal punishment of any kind "causes harm," as Schabus complains, will probably "exceed what is reasonable under the circumstances" and won't be protected by Section 43.

There's no question child abuse is a serious social problem and any form of physical discipline against a child should be a last, and perhaps never used, resort.

A solid relationship between parent and child is a difficult enough accomplishment without complicating it by the mistrust physical force can create.

Parents should be encouraged to foster a better connection with their kids through any other means.

But taking away a parent's right to use every tool possible -- including force if needed -- to ensure children grow up to be productive adults is not the answer.

Hopefully, when the Ontario Court of Appeal judges make their decision, they'll agree.

masthead Calgary Sun, 30 September 2001

Spanking Move Painfully Unfair

Criminalizing Parental Discipline Will Only Serve To Break Up Families

By Licia Corbella

How's this for irony? The group that is working so feverishly to make it illegal for loving parents to spank their children is the very same group that successfully worked to make it legal for a stranger to sodomize a 14-year-old.

I'm not making this up.

Of course, if the adult stranger was spanking the 14-year-old for some sexual purpose, that would be allowed under the law.

If, however, the spanking was delivered to the child by a loving parent in a last-ditch attempt to help prevent his or her child from, say, engaging in dangerous behaviour -- like having anal sex at 14 with strangers -- then that, according to the Canadian Foundation for Children, Youth and the Law (CFCYL) should be considered a criminal act.

Several years ago, the CFCYL successfully argued in court that the age of consent for homosexuals should be lowered to 14, to match that allowed females.

Last week, the foundation was before the Ontario Court of Appeal, attempting to have spanking declared unconstitutional on the grounds that it is a legalized form of child abuse and is therefore a violation of children's equality rights under the Charter of Rights and Freedoms.

The CFCYL is fighting to have Section 43 of the Criminal Code repealed.

Section 43 of the Criminal Code states: "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."

According to a poll last year, some 90% of Canadians feel the law is reasonable.

Most young parents I know really agonize over the question of whether or not they should spank their children.

My husband and I are no exception to that.

We have twin four-year-old boys, and when they were about two- and-a-half, we came to the conclusion that we had to spank one of our sons, who was making a habit of biting his brother.

We had tried every other alternative. Immediate and somewhat lengthier- than-normal timeouts, lectures, removal of toys and other privileges. We tried talking calmly, talking sternly, talking loudly and yelling angrily, and still the biting continued.

Biting was becoming a reflex for him.

After a particularly strong bite that left bruising on his brother' s arm, we decided to spank the biter.

I did not spank him hard. In fact, sometimes in play when we are rough-housing, I slap his bottom harder than that and he laughs and giggles.

Nevertheless, the spanking worked. He stopped biting.

In other words, all the words in the world, all the timeouts didn't register. A couple of mild swats on the rear end did.

In no way was what I did to my son abuse, or, even in the slightest bit, wrong -- not to mention criminal.

My only motivation in spanking my biting boy was his best interest and that of my other son.

My husband and I had originally intended never to spank our children. It was something we had discussed at some length. It took us just two years and three months to break our vow on that -- again after much discussion and reasoning.

I have a friend with six children. She has only ever spanked one. He was the only one who needed that form of discipline. It was a last resort, not the first.

To think that she or I could be hauled into court, slapped with a criminal record and have my children apprehended by the authorities simply for doing what we believe to be best for our children, is almost as ironic as the fact that the foundation would rather my children have anal sex at 14 than be spanked or even physically prevented from leaving the house at 2 a.m. to join unsavoury friends.

As federal government lawyer Roslyn Levine said last week, removing Section 43 could result in cases where even by taking a child to their room, "you're going to find you've exercised physical force over that child."

Children being apprehended is the likely outcome, if Section 43 is repealed and spanking children is criminalized.

William Gairdner, the Canadian author of The War Against the Family, says criminalizing spanking will break up families.

"Once the Swedes enacted anti-spanking laws, their child-welfare agencies started picking up 300% more children than the demographically identical Finns."

Everyone knows the difference between a spanking and abuse. Just like we all know the difference between making love and rape.

Personally, I would lay down my life for either of my sons -- no question.

Would the folks with the Canadian Foundation for Children, Youth and the Law?

Not bloody likely.

I spanked my son, following much handwringing with my husband and some book reading, in an effort to raise a decent boy who will respect others' feelings. I also spanked him to protect my other son.

Nothing will stop me from doing the right thing for my boys.

I'd be willing to go to jail for that, though it would be wrong if I were sent there for doing what's right.

The appeal court has reserved its decision.

Let's hope those judges are parents and REALLY understand.

blob Follow-up: 16 January 2002 - Appeal court upholds spanking law

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Colin Farrell 2001, 2002
Page updated June 2002