Corporal punishment of children - spanking

A Canadian lawsuit: The Canadian Foundation
for Children, Youth and the Law v.
The Attorney General of Canada.

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This topic is continued from the previous essay

Overview:

Canadian parents are allowed to use mild corporal punishment during the disciplining of their children. The dividing line between allowable violence and criminal abuse is defined in Section 43 of the Criminal Code. This law applies throughout Canada:

One problem with this law is the rather vague phrase:  "...what is reasonable under the circumstances." Some groups have attempted to have Section 43 repealed. One lawsuit, launched by The Canadian Foundation for Children, Youth and the Law was considered by the Supreme Court of Canada. They found that Section 43 is constitutional. However, the court did define reasonably specific limits on the allowable levels of violence that parents can use.

Lawsuit before the Ontario Superior Court of Justice:

On 2000-JUL-05, the Ontario Superior Court of Justice issued a ruling in the case: "The Canadian Foundation for Children, Youth and the Law v. The Attorney General of Canada."

• The Foundation attempted to have Section 43 of the Criminal Code declared unconstitutional. They argued that corporal punishment violates children's rights to security of the person, and equality. Also, they argued that corporal punishment is cruel and unusual punishment. The Ontario Association of Children's Aid Societies supported the Foundation's position. 
• The Attorney General argued that Section 43 reflects a fair balance among the interests of children, their parents and Canadian society; the federal government does not condone either the physical discipline of children nor the criminalization of parents for disciplining their children through the use of reasonable corporal punishment. The federal government had the support of the Canadian Teachers' Federation and the Coalition for Family Autonomy. The latter is composed of a number of conservative social and religious groups: Focus on the Family, Canada; the Canadian Family Action Coalition; the Home School Legal Defence Association of Canada; and REAL Women of Canada).

The court found that the use of "reasonable" force to discipline children was constitutional. According to the federal Department of Justice, the test of reasonableness: "...involves an examination of a variety of factors including the age and character of the child, the nature of the child©s behaviour calling for correction, the degree and gravity of the punishment, and the circumstances under which the force was applied. These factors are assessed against the contemporary Canadian community©s standard of reasonableness and not against the rules or practices of an individual family. The court provided additional guidelines, based on expert evidence led in the case, to aid in interpreting and applying section 43 in accordance with the Charter. These guidelines relate to the corporal punishment of very young children and teenagers, the use of objects in corporal punishment, injury, and effective alternatives to corporal punishment, among others." The "charter" referred to is the Canadian Charter of Rights and Freedoms, Canada's constitution.

They also determined that Section 43 does not apply where the use of force "is part of a genuine effort to educate the child, poses no reasonable risk of harm that is more than transitory and trifling, and is reasonable under the circumstances." For example, force can be used to remove a child from a dangerous situation, or to separate two children who are fighting. ₁

Appeal to the Ontario Court of Appeal:

2002-JAN-15: In its case #29113, the Ontario Court of Appeal upheld a lower court ruling which found that Section 43 of the Criminal Code of Canada is constitutional. The Government argued that allowing limited corporal punishment does not harm children, and that it "balances the societal interest in sustaining the family unit with the charter rights of the child."

Appeal to the Supreme Court of Canada:

The Supreme Court of Canada heard the appeal on 2003-JUN-06. It was their case #2004 SCC 4. 

The court noted that:

"The application was not based upon any factual circumstance but was heard with special permission of the court because it raised a serious legal question and there was no other reasonable or effective way for the issue to be raised. No witnesses testified, however volumes of affidavit evidence by experts and cross-examination transcripts were filed."

"The Appellant argued, inter alia, that...[Section] 43 sanctions assault against society's most vulnerable members even though the weight of evidence is that physical punishment does not benefit children and may be harmful. It teaches children that physical aggression is an appropriate response to frustration. The Appellant contends that the use of the word "justified" in...[Section] 43 sends a message that the law regards corporal punishment as rightful behaviour and undermines efforts to educate against the use of punitive force."

"The Respondent argued that while there have been cases in which judges have used...[Section] 43 to acquit people of causing serious harm to children, those cases reflected values of an earlier time, or were wrongly decided. The Respondent submitted that...[Section] 43 excuses parents and teachers from only a narrow range of mild to moderate corrective force, which normative or customary forms of physical punishment are acknowledged by most experts not to be child abuse." ₂

The Canadian Foundation for Children, Youth and the Law's had argued their belief that Section 43:

• Violates section 7 of the Canadian Charter of Rights and Freedoms because it fails to give procedural protections to children, does not further the best interests of the child, and is both overbroad and vague;
• Violates section 12 of the Charter because it constitutes cruel and unusual punishment or treatment.
• Violates section 15(1) of the Charter because it denies children the legal protection against assaults that is accorded to adults.  ₃

The Supreme Court handed down their decision on 2004-JAN-30. ₄ The court upheld the ruling of the lower court. They found that Section 43 was constitutional. It does not infringe on the rights of children as they are guaranteed by sections 7, 12 and 15(1) of the Canadian Charter of Rights and Freedoms.

The court ruled that Section 43 "is not unduly vague or overbroad; it sets real boundaries and delineates a risk zone for criminal sanction and avoids discretionary law enforcement. The force must have been intended to be for educative or corrective purposes, relating to restraining, controlling or expressing disapproval of the actual behaviour of a child capable of benefiting from the correction. While the words 'reasonable under the circumstances' on their face are broad, implicit limitations add precision. Section 43 does not extend to an application of force that results in harm or the prospect of harm. Determining what is 'reasonable under the circumstances' in the case of child discipline is assisted by Canada's international treaty obligations, the circumstances in which the discipline occurs, social consensus, expert evidence and judicial interpretation. When these considerations are taken together, a solid core of meaning emerges for 'reasonable under the circumstances', sufficient to establish a zone in which discipline risks criminal sanction." ₄

The court cited a statement by the Law Reform Commission of Canada which pointed out that repealing Section 43 or declaring it unconstitutional "could have unfortunate consequences, consequences worse than those ensuing from retention of the section. [It  would] expose the family to the incursion of state law enforcement for every trivial slap or spanking. [I]s this the sort of society in which we would want to live?" ₅

Defining what is "reasonable" force:

The Supreme Court ruled that the immunity provided to parents by Section 43 is limited. There are many situations where punishment becomes a criminal act:

• Who can inflict punishment:
  • "The phrase 'person standing in the place of a parent' has been held by the courts to indicate an individual who has assumed 'all the obligations of parenthood'."
  • Corporal punishment is forbidden In schools, both private and public. The court ruling stated: "The logic for keeping criminal sanctions out of the schools is much less compelling than for keeping them out of the home." The Supreme Court has altered legislation by in effect, removing the word "schoolteacher" from Section 43. However, teachers can use force to remove or restrain a child in appropriate circumstances.
• Reasons for the punishment: The parent must intend the punishment to be for "...educative or corrective purposes..." only.
• Age limits for punishment:
  • The child must be capable of benefiting from the correction. Thus, corporal punishment of children under the age of two is not permitted. A parent who followed the advice of James Dobson -- child psychologist and founder of the fundamentalist organization Focus on the Family -- to use corporal punishment on an infant at the age of 18 months would be committing a criminal act.
  • "Corporal punishment of teenagers is harmful, because it can induce aggressive or antisocial behaviour."
• Degree of punishment: It can result "...neither in harm nor in the prospect of bodily harm. This limits its operation to the mildest forms of assault."
• Forbidden forms of punishment:
  • "Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful."
  • "Corporal punishment which involves slaps or blows to the head is harmful."
  • "Degrading, inhuman or harmful conduct is not protected."
• Other considerations: "A child may also be incapable of learning from the application of force because of disability or some other contextual factor." Thus, punishment of a developmentally delayed child may be forbidden. ₄

Some observations:

The incidence of corporal punishment by parents is decreasing throughout North America. This trend is expected to accelerate in the future as the public realizes the serious negative effects that spanking has on children's development and later mental health as adults.

The court's ruling in the case initiated by The Canadian Foundation for Children, Youth and the Law referred to "harm or the prospect of harm" on the part of the child. They seem to have concentrated on forbidding punishment which causes actual physical injury at the time of the violence. The court did not appear to consider the long-term affects of spanking which has been found in several mass studies. This includes the rise in addiction to alcohol and other drugs, the increase in depression, anxiety and anti-social behavior among adults who were spanked as children. Some group may well launch a future lawsuit that is based on the long-term harm caused by corporal punishment.

Books advocating criminal behavior:

The Repeal 43 Committee noted in mid-2005 that James Dobson, Founder and President of Focus on the Family had published an updated version of his 1978 parenting book "New Strong-Willed Child." ₆ They wrote:

"Beginning with his same story about beating the family dog into submission with a belt ('The only way to make [him] obey was to threaten him with destruction'), he believes this highly relevant to raising children, because just as a dog will challenge authority, so will a little child 'only more so'."

"His first rule in childrearing is to teach respect for authority. As he writes in a 1992 book, this will be the cornerstone for the child©s respect for other authority figures later in life. To instill this respect, spanking can begin at 15 months with a 'neutral object' such as a switch or paddle, rather than the hand, which is 'an object of love'." ₆

"This advice violates Canadian law as interpreted by the 2004 Supreme Court decision and should be dealt with as any other writing that counsels a violation of our Criminal Code." ₇

It is worthwhile noting that the Amazon.com web site contained 59 reviews of this book by individuals who had purchased it. Their average rating was 2 stars out of 5 -- a very low value. One reviewer recommend a different book "Christian Parenting & Child Care by Sears & Sears."  ₈ When she abandoned Dr. Dobson's philosophy both as a teacher and parent, she noted a significant improvement in her students' and children's behavior.

A personal note:

When writing essays on this web site, I try to just "tell it like it is" without allowing my personal beliefs to intrude. I would like to make an exception here, because I feel that the adverse consequences of spanking children appear to be very serious. I strongly recommend that parents find alternative methods to discipline children. Please read my comment on the spanking menu.

This topic continues in the next essay

References:

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. "Supreme Court of Canada - Agenda," 2003-MAY-26, at: http://www.lexum.umontreal.ca/
3. "[2004] 1 S.C.R.," Supreme Court of Canada, 2004-JAN-30, at: http://www.lexum.umontreal.ca/
4. "Supreme Court of Canada -- Judgment in Appeal," 2004-JAN-30, at: http://www.lexum.umontreal.ca/
5. "Working Paper 38, Assault," Law Reform Commission of Canada, (1984), Page 44.
6. James Dobson, "The New Strong-Willed Child: Birth Through Adolescence," Tyndale House, (2004). Read reviews or order this book safely from Amazon.com online book store
7. "2005 James Dobson: new book - same bad message," Repeal 43 Committee, 2005-JUN, at: http://www.repeal43.org/
8. William Sears, "Christian Parenting and Child Care," Thomas Nelson, (1095). Although it is out of print, used copies were available for under $3.00 plus shipping on 2005-SEP-08 at the  Amazon.com online book store

Copyright © 2005 to 2007 by Ontario Consultants on Religious Tolerance
Originally written: 2005-APR-17
Latest update: 2007-JUN-27
Author: B.A. Robinson