2015-DEC: Canada: A potential limitation on religious freedom.
Part 1 of 2 parts:
A proposal by the Canadian government
to criminalize spanking/paddling children:
About Section 43 of the Criminal Code of Canada:
Most criminal offences and procedures in Canada are codified in the federal Criminal Code of Canada. 1 As originally written in the year 1892, Section 43 of the Code allowed the limited use of violence to punish children, youths, and student apprentices. It said:
"It is lawful for every parent, or person in the place of a parent, schoolmaster or master, to use force by way of correction towards any child, pupil or apprentice under his care, provided that such force is reasonable under the circumstances."
Over the years, the Criminal Code was frequently amended to legalize the use of contraceptives, abortion, sexual activity between consenting adults of the same sex, the use of breathalyzer tests on drivers, etc. However, Section 43 remained essentially unchanged from its original 1892 wording, except for the deletion of the references to "masters" and " apprentices." As of the end of 2015, it read:
"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." 2
Bans on punishing children elsewhere in the world:
During 1979, Sweden became the first country to ban the physical punishment of children. Since then, almost 50 countries have done the same.
In 1990, the United Nations issued a Declaration on the Rights of the Child which Canada susequently signed. It conflicts with Section 43 in the Criminal Code. 3
2002 & 2004: Decision of Canadian courts concerning Section 43:
According to CBC News:
"The Ontario Court of Appeal upheld Section 43 in January 2002. The court ruled that parents and teachers are free to spank children for disciplinary purposes if they limit themselves to "reasonable force." 4
The case was the Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General). It was appealed to the Supreme Court of Canada. The Foundation felt that Section 43 violated Sections 7, 12, and 15 of the Charter of Rights -- Canada's constitution. 5 In a 6 to 3 decision, the High Court upheld Section 43, but put limitations on the allowable physical punishment of children. The Justices determined that Inflicting pain was prohibited under the law:
- If the child is under the age of 24 months or over the age of 12 years,
- If an object like a belt, paddle, ruler, or rod is used to inflict the pain,
- If it involves blows, including slaps, to the child's head, or
- If more than "minor corrective force of a transitory and trifling nature" is used. 4
2008 to 2015: An inquiry into past abuses in Native residential schools, and its possible effect on Section 43:
Many people regard the most atrocious and inhuman acts ever committed in Canada to be the horrendous physical, sexual, emotional, cultural, spiritual, and language abuse suffered by about 150,000 of its First Nation, Inuit and Métis children in special residential schools. Back in the late 19th Century, the federal Government gave a high priority to the destruction of Native Canadian culture. The goal was to convert Natives into "Apples:" persons who were red on the outsdide, but culturally white on the inside.
A major part of this conversion was to be implemented through residential schools. They operated from 1876 until 1996 during which as many as 6,000 children died while in residence. Abuse was nearly universal. The schools were under federal government overall supervision, but actually operated by four of Canada's national churches.
Between 1986 and 1998, the Anglican Church of Canada, the Presbyterian Church in Canada, and the United Church of Canada -- in that order -- issued sincere formal apologies for their roles in the past abuse. Over a decade later in 2009, the Roman Catholic Church finally issued a statement of regret. Phil Fontaine, Leader of the Assembly of First Nations did not regard it as an "official apology." 6,7 The Catholic Church is limited in its ability to issue apologies for past church behavior because of its belief that the Church itself cannot and has not performed sinful or evil deeds; only Catholic individuals have.
On 2008-JUN-01, the federal government created a Truth and Reconciliation Commission (TRC). They held meetings across Canada and provided:
"... former students — and anyone who has been affected by the residential school legacy — with an opportunity to share their individual experiences in a safe and culturally appropriate manner. It ... [was] an opportunity for people to tell their stories about a significant part of Canadian history that is still unknown to most Canadians.
The purpose of the commission is not to determine guilt or innocence, but to create a historical account of the residential schools, help people to heal, and encourage reconciliation between aboriginals and non-aboriginal Canadians. ..." 8
During 2015-JUN the final report of the Truth and Reconciliation Commission (TRC) was issued. Justice Murray Sinclair unveiled the TRC report saying:
"Canada clearly participated in a period of cultural genocide."
Some in the audience applauded; others cried.
The Commission's report
made 94 recommendations. It remains to be seen how many will be acted upon by the federal government.
Recommendation #6 unambiguously states:
"We call upon the Government of Canada to repeal Section 43 of the Criminal Code of Canada." 9
2015-OCT-20: Federal elections were held.
The federal Conservative Party of Canada was defeated, and the Liberal Party of Canada (a.k.a. the Grits) formed a new government where they hold a majority of seats in the House of Commons. One of the planks in the Liberal Party's platform was the implementation of all 94 of the TRC's recommendations. This presumably includes #6 cited above which would affect both native and non-native children.
2015-DEC-21: The federal Liberal Party of Canada renews its promise to repeal the "spanking law:"
Two months after the federal election, a spokesperson for Justice Minister Jody Wilson-Raybould (Liberal) confirmed that the repeal of Section 43 of the Criminal Code of Canada will be part of the LIberal Party's main pledge to implement all 94 recommendations of the Truth and Reconciliation Commission. 10
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- "Criminal Code (Canada)," Wikipedia, as on 2015-NOV-23, at: https://en.wikipedia.org/
- Laura Barnett, "The "Spanking" Law: Section 43 of the Criminal Code,"Parliament of Canada, 2008-JUN-20, at: http://www.parl.gc.ca/
- Kabriya Coghlan, "Children’s rights groups will be thankful to see ‘spanking law’ repealed," Global News, 2015-DEC-21, at: http://globalnews.ca/
- "Supreme Court upholds spanking law," CBC News, 2004-JAN-30, at: http://www.cbc.ca/
- Miriam Yosowich, "What happens if the ‘spanking law’ is repealed?," FindLaw Canada, 2015-DEC-22, at: http://findlaw.ca/
- "Canada confronts its dark history of abuse in residential schools," The Guardian, 2015-JUN-06, at: http://www.theguardian.com/
- "A history of residential schools in Canada," CBC News, 2014-JAN-07, at: http://www.cbc.ca/
- "FAQs: Truth and Reconciliation Commission," CBC News, 2008-MAY-16, at: http://www.cbc.ca/
- "Truth and Reconciliation Commission of Canada: Calls to Action," Truth & Reconciliation Commission, 2015, at: http://www.trc.ca http://nctr.ca/reports.php
- "Liberal government commits to repealing so-called ‘spanking law'." Toronto Star newspaper, 2015-DEC-22, at: http://www.thestar.com/
Copyright © 2015 by Ontario Consultants on
Original posting: 2015-DEC-24
Latest update : 2015-DEC-24
Author: B.A. Robinson