Corporal punishment of children -- spanking

Events in Canada: 2000 to now.
A decade of continual frustration.

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Timeline 2000 to now:

• 2000-JUL-05: Court decision: The Ontario Superior Court of Justice issued a ruling on Section 43 of the Criminal Code, in the case: "The Canadian Foundation for Children, Youth and the Law v. The Attorney General of Canada." They found mild violence against children to be constitutional. ₁
  
  
• 2001: Children taken into care; private member's bill:
  • Seven children from Alymer, ON , aged six to 14, were taken in to care on JUL-04. Their fundamentalist Christian parents who attend the Church of God had allegedly spanked them with paddles, a hairbrush, a belt, a wooden stick, the wire handle of a fly swatter and electrical cords....The children were struck for talking loudly [while] sitting on a desk, playing in the street, spending too long in the bath, and going outside with messy hair. ₂ In their belief system, parents are not allowed to strike their children with their hands. The children were later returned home after their parents promised to suspend spanking. This became a high-profile case that was given heavy coverage in the media, possible because of the The Canadian Foundation for Children, Youth and the Law lawsuit. Many conservative Christian groups were outraged at the treatment of the parents.
  • M.P. Libby Davies introduced her third private member's bill: C-329. It did not proceed.
    
    
• 2002-JAN-15: Court ruling: The Ontario Court of Appeal upheld the year 2000 lower court ruling which found that Section 43 of the Criminal Code of Canada is constitutional.

  About a week later, Leger Marketing conducted a cross-Canada survey of adults' beliefs concerning spanking.

  • To the question: "Should the government pass legislation to ban parents from spanking their children:"
    • 69% of Canadian adults said "no."
    • 21.9% said "yes."
    • 9.1% didn't answer.
  • To the question: "Is a light slap an effective way to make a child think?"
    • 46.9% said "yes."
    • 46.6% said "no."
    • 6.5% didn't answer.

  Joan Durrant of the University of Manitoba's family-studies department criticized the second question. She said: "It...doesn't ask them if they think its the best way or the right thing to do, so the question really doesn't tell us a whole lot about what people think." She reported on a survey that she had conducted in the 1990's. It showed that 65% of respondents would support a legal prohibition of spanking if it were proven to reduce injuries to children. ₃

• 2002-DEC: Anti-spanking web site opens: The Committee to Repeal Section 43 of the Criminal Code of Canada -- commonly called the Repeal 43 Committee placed their web site online. See: http://www.repeal43.org/
  
  
• 2003-JUN-06: Court decision: The Supreme Court of Canada heard the appeal of the Ontario Court of Appeal's decision.₄
  
  
• 2004-JAN-30: Court decision: The Supreme Court handed down their decision.  ₅ They determined that Section 43 is constitutional. However, they interpreted the troublesome "reasonable under the circumstances" phrase in order to give specific guidance to families and the courts as to what is allowable force, and what is criminal abuse. ₆
  
  
• 2004-DEC: Private member bill: Senator Celine Hervieux-Payette (Liberal) introduced a private member bill in the Senate. Bill S-21 would forbid parents spanking children. Clause 1, Section 43 of the Criminal Code of Canada would be repealed. It currently 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." ₉
  
  
• 2005-JUN-05: Bill discussed by Senate committee: The Senate Committee on Legal and Constitutional Affairs debated S-21.
  
  Senator Anne Cools was opposed to the bill because eliminating Section 43 of the Criminal Code would lead to frivolous charges against parents who have nothing but the best interests of their children at heart. She said:

  "The potential for mischievous and vexatious prosecutions is enormous. This country has had a plethora of wrongful convictions in the last many years, and a plethora of false accusations, particularly in the field of family violence. This concerns me. ... What concerns me is that ordinary parents who may slap a child as a manner of correction, and not even in excessive rage, will suddenly find themselves subject to the risk of prosecution. It is an act of arrogance on our part to believe we can place laws and then say to people, 'Follow them, because we are so enlightened that we will teach you how to be good, kind and gentle people'. I hate to tell you, but despite the existence of all laws against assault and against murder, there is still that child abuse, and there is no law that will stop that. I do not believe that every parent who may slap a child is an abusive parent or a parent who should be exposed to the weight of criminal prosecution." ₉

• 2005-JUN-15: Department of Justice lawyer gives presentation to committee: Carole Morency appeared before the Committee on behalf of Justice Minister, Irwin Cotler. She said that the government opposes capital punishment but does not want to have a "mild, non-injurious spank" prosecuted as a crime.
  
  
• 2005-JUN-16: Presentations by various groups forming the "Coalition for Family Autonomy:" The coalition is made up of four fundamentalist Christian groups: Realwomen of Canada, Focus on the Family Canada, the Home School Legal Defence Association and Family Action Coalition. All opposed Bill S-21 and favored allowing parents to use corporal punishment to discipline children.
  
  
• 2006-JAN: Parliament was defeated: The bill did not proceed.
  

• 2006-APR-05: Bill first reading: Senator Hervieux-Payette's bill S-207 "An Act to amend the Criminal Code (protection of children)" was given its first reading. It is the ninth private-members bill to attempt to repeal Section 43. It would allow the government 12 months in which to mount an educational campaign to educate parents and coordinate activities with the provinces. It did not proceed. ₇
  
  
• 2006-APR: The Standing Senate Committee on Human Rights issued a final report titled: "Effective implementation of Canada's international obligations with respect to the rights of children." Their second recommendation was that the government take steps to eliminate corporal punishment in Canada. They stated that this should include:

  "The immediate launch of an extensive public and parental education campaign with respect to the negative effects of corporal punishment and the need to foster enhanced parent-child communication based on alternative forms of discipline;
  
  Calling on the [Federal] Department of Health to undertake research into alternative methods of discipline, as well as the effects of corporal punishment on children;
  
  Repeal of section 43 of the Criminal Code by April 2009; and
  
  Calling on the Department of Justice to undertake an analysis of whether existing common law defences "... such as necessity and the de minimis defence" should be made expressly available to persons charged with assault against a child." ₈

• 2006-MAY-11: Senator Hervieux-Payette moved second reading of S-207: She cited recommendations by the UN Committee on the Rights of the Child, the Council of Europe, as well as legal reforms in Germany, Statistics Canada data, and statements by the Law Commission of Canada and Toronto Public Health in support.
  
  
• 2006-JUN-26: Senator Cochrane spoke against S-207: Senator Ethel Cochrane, a former teacher and school principal, expressed concern that any restraint of a child could be prosecuted as a crime under the bill. Most commentators suggest that the bill would allow parents, teachers, etc. to use reasonable force to restrain or moving a child.
  
  
• 2006-DEC-14: Bill S-207 given second reading and is referred to committee: The bill was referred to the Standing Senate Committee on Human Rights.
  
  
• 2007-JUN-4: Senate committee starts hearings. The committee heard eight witnesses: five in favor of the bill and three against. Representatives for:
  
  
  • The Canadian Teachers' Federation expressed concern that a specific exclusion be written into the law to allow teachers to use reasonable force when moving or restraining students.
    
    
  • The Canadian Coalition for the Rights of Children, Justice for Children and Youth, the Repeal 43 Committee, Joan Durrant of the Department of Family Social Studies of the University of Manitoba, Ron Ensom, co-author of the Joint Statement on Physical Punishment of Children and Youth all supported the bill. Ensom quoted a 2003-AUG survey in Toronto, ON that showed 51% supported repeal of Section 43. This rose to 72 to 80% if the bill would avoid inappropriate prosecutions and research showed that physical punishment harmed children.
    
    
  • Dave Quist, executive director of the Institute of Family and Marriage Canada -- a policy research arm of the fundamentalist Christian group Focus on the Family Canada opposed the bill, citing a survey that showed that 72% of Canadian adults favored keeping spanking as a legal option.
    
    
• 2007-JUN-19: The Senate Committee referred bill for 3rd reading.
  
  
• 2007-SEP: Parliament was prorogued: The bill died.
  
  
• 2008-MAY-14: Senator Hervieux-Payette introduced Bill S-209. It was identical to previous bills: S-21 and S-207. The Standing Senate Committee on Legal and Constitutional Affairs (LCAC) began hearings. Senator Hervieux-Payette testified that spanking is not educational. It does not favour the development of confidence, autonomy and self-respect in the child. Also, Canada has an international obligation to uphold a child’s right to physical integrity.
  
  Mark Lapowich, representing the Council of Criminal Defence Lawyers testified that Section 43 should be retained. It adequately prevents violence against, and abuse of, children. To repeal it would introduce a problem, in that our broad assault laws would criminalize not only corporal punishment by parents and teachers, but would also make mild restraint and confinement illegal.
  
  
• 2008-JUN-05: Further testimony began before the Standing Senate Committee on Legal and Constitutional Affairs on S-209. This led to minor amendments.
  
  
• 2008-SEP: Federal election called. S-209 dies.
  
  
• 2009-JAN-27: Senator Hervieux-Payette reintroduced S-209 to the Senate as earlier amended.
  
  
• 2009-JUN-22: Bill S-209 receives its second reading: It is re-assigned to the Senate Standing Committee on Legal and Constitutional Affairs.
  
  
• 2010-MAR-10: Senator Hervieux-Payette introduces a new bill, S-204, to repeal s. 43. It is a copy of the original bill S-21.
  
  
• 2010-JUN-10: Bill S-204 receives its second reading. She said that those who say that a repeal of S. 43 would result in parents and teachers being criminally charged for trifling reasons are arguing in bad faith. She noted that 26 countries have banned the use of violence in the discipline of children. None has experienced this problem. ₁₀

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. "FACT SHEET: Section 43 of the Criminal Code (Corporal Punishment)," Department of Justice, Canada, 2004-JAN-30, at: http://canada.justice.gc.ca/
2. John Goddard, "When spanking kids crosses the line," The Toronto Star, 2003-MAR-22. Online at: http://www.familyaid.org/
3. Donald McKenzie, "Right to spank backed in poll," Canadian Press. Published in the Toronto Star, 2002-FEB-11, Page A6.
4. "Supreme Court of Canada - Agenda," 2003-MAY-26, at: http://www.lexum.umontreal.ca/
5. "Supreme Court of Canada -- Judgment in Appeal," 2004-JAN-30, at: http://www.lexum.umontreal.ca/
6. "[2004] 1 S.C.R.," Supreme Court of Canada, 2004-JAN-30, at: http://www.lexum.umontreal.ca/
7. Senator Hervieux-Payette "Bill S-207 An Act to amend the Criminal Code (protection of children), Senate of Canada, at: http://www2.parl.gc.ca/
8. Standing Senate Committee on Human Rights, "Effective implementation of Canada's international obligations with respect to the rights of children." Senate of Canada, at: http://www.parl.gc.ca/
9. "Canadian Liberal Senator Seeks to Criminalize Spanking as a Form of Discipline," LifeSiteNews, 2005-JUN-08, at: http://www.lifesitenews.com/
10. "Senate Bills to repeal S. 43," Repeal 43 Committee, at: http://www.repeal43.org/

Copyright © 2002 to 2010 by Ontario Consultants on Religious Tolerance
Originally written: 2002-SEP-09
Latest update: 2010-JUN-28
Author: B.A. Robinson

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