Corpun file 8383 at www.corpun.com
National Post, Toronto, 16 January 2002
Appeal court upholds spanking law
Challenged in Ontario: Teachers applaud ruling, but critics say children still victims
By Francine Dubé
National Post
A controversial Canadian law that allows parents and teachers to use reasonable force to discipline children has been upheld by the Court of Appeal of Ontario.
"No country in the world has criminalized all forms of physical punishment of children by parents, which is what accepting the appellant's position would entail," reads the unanimous ruling, released yesterday.
Section 43 of the Criminal Code allows teachers, parents and guardians to use reasonable force to correct a child in their charge.
The Canadian Foundation for Children, Youth and the Law had sought to strike it down on the grounds it violates constitutional rights to equality, security of the person and protection from cruel and unusual punishment.
Marvin Bernstein, director of policy development for the Ontario Association of Children's Aid Societies, which supported the court challenge, said the ruling means children remain the only members of society who are still subject to lawful physical assault.
"Children, because of their age, still get victimized," he said, adding that studies have shown that corporal punishment typically only ensures immediate, short-term compliance.
"Often it becomes necessary for parents to escalate the level of violence to continue to achieve compliance," he said.
Paul Schabas, one of the lawyers representing the foundation, said he was disappointed in the ruling and a decision will be reached in the next few days on whether to appeal.
But he was pleased the decision seems to set narrow guidelines on when and how corporal punishment can be used: It quotes experts as saying it should not be used against children younger than two or against teenagers, and should never involve use of an object, such as a belt or ruler, and never include a slap or blow to the head.
Carole Morency, senior counsel with the federal Department of Justice, which defended section 43 in court, said the guidelines will be useful for teachers, parents and other courts.
"Everybody will benefit from the clarity that this decision will bring to the issue," she said.
Marilies Rettig, past president of the Canadian Teachers' Federation, which held intervener status in the court case, said teachers are relieved at the ruling, not because they want to spank children, but because some force is occasionally needed to control unruly pupils.
"If you have a behavioural disordered student, they may get aggressive with other students in the classroom, they may become verbally aggressive, they may threaten the well-being of other students or teachers," said Ms. Rettig.
"Section 43 has nothing to do with abuse of children. It's a protection for teachers and if we lost it it would be detrimental not only to teachers but to schools across the province."
The decision upholds and quotes widely from a ruling by Superior Court Justice David McCombs in July, 2000.
"Criminalization is often too blunt and heavy-handed an instrument with which to address many of the problems concerning the welfare of children," Judge McCombs wrote in his decision.
Yesterday's decision also quoted Supreme Court Justice Claire L'Heureux-Dubé who said, in ruling on a related case, "Parents must be accorded a relatively large measure of freedom from state interference to raise their children as they see fit."
Public debate over the issue peaked this summer when a group of fundamentalist Christian families fled to Mexico and Indiana from Aylmer, Ont., to retain the right to spank their children using a strap.
First included in the Criminal Code in 1892, section 43 originally allowed the use of corrective force against wives, employees and prisoners as well as children.
Copyright © 2001 National Post Online
Follow-up: 6 June 2003 - Group asks Supreme Court to outlaw spanking
