The Legal Side of Canada’s Spanking Debate

In the old days “spare the rod and spoil the child” was considered an adequate parenting technique. It was based on the notion that not beating your kids would ruin them by making them lazy, rude, disobedient and unable to assume responsibility. Times have changed, and in light of the Truth and Reconciliation Commission’s 2015 Calls to Action, the Trudeau government is being pressured to repeal Canada’s spanking law.

This law relies on two sources: Section 43 of the Canadian Criminal Code, and the Supreme Court’s 2004 decision in Canadian Foundation for Children, Youth and the Law v. Attorney General in Right of Canada.

Section 43 of the Criminal Code says that:

“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.”

If you take the Criminal Code article by its words alone, parents, teachers and anybody acting in the parent’s place can get out of an assault charge against a child by claiming that the use of force was reasonable under the circumstances and used “to correct.” This defense has been used in the past to exonerate parents and teachers from physically assaulting children, even in cases where the amount of force was so severe the victims were left with bruises and marks that lasted a day or more.

In 2004, a majority in the Supreme Court upheld Section 43 of the Criminal Code. The Canadian Foundation for Children argued that spanking violated children’s protection under the Canadian Charter of Rights and Freedoms. They said the law makes children unequal before the law and constitutes cruel and unusual punishment that violates their security of the person, and argued that the law is so vague it gives too much discretion to judges when faced with parents charged with assault against their kids.

The majority judges said the law isn’t vague. Section 43, they claimed, “sets real boundaries” by limiting corporal punishment to correcting children who are capable of benefitting from that kind of correction. The majority Justices agreed that a child under the age of two wouldn’t benefit from spanking because at that age people are incapable of understanding why they’re being spanked. Teenagers age 12 and up wouldn’t benefit from corporal punishment because it encourages aggressive anti-social behavior instead of deterring it.

They agreed that spanking using any kind of object such as a ruler or belt would be considered unreasonable, and that any kind of force used to degrade or that is inflicted as a direct result of the caregiver’s frustration, loss of temper, or abusive personality, would not be covered under the defense provided by Section 43. They further justify Section 43 by saying that sending parents to jail would hurt families more than spanking the kids.

trudeau truth and reconciliation commission
Prime Minister Justin Trudeau repeats his promise to honour the recommendations of the Truth and Reconciliation Commission in December (image CBC)

The dissenting judges in the case had a rather different opinion. Two out of three agreed that Section 43 should be struck down. Two out of three agreed that the law is too vague. They all agreed that Section 43 protects parents from prosecution for charges they would have been punished for had the victim not been a child.

Justice Binnie said Section 43 shouldn’t apply to teachers, as they’re no longer considered a substitute for the parents. Justice Arbour said the rule has been inconsistently applied by the courts and violates a child’s right to safety and security. Justice Deschamps attacked the majority judges for upholding the law, saying that it perpetuates the notion that children are the property of their parents, and sends the message that their physical security can be compromised according to their parents’ will.

People in favor of keeping Section 43 in force argue cultural sensitivity; that making parents and teachers susceptible to assault charges would disproportionately affect ethnic and immigrant communities. They encourage paranoia about parents being charged left and right for disciplining their kids. Some will even go insofar as to say that social services and child welfare advocates are skilled enough to detect child abuse, making the abolition of Section 43 unnecessary.

It should be noted that the existence of a cultural practice doesn’t necessarily make it acceptable in Canada. Many cultures advocate the mistreatment of women and LGBT people, despite the fact that these are widely recognized as unacceptable in Canada. When people come to Canada, they agree that they may practice their faith and culture within the confines of respecting and obeying Canadian law. If Section 43 were abolished, the same agreement they made to obey the law would include refraining from beating their kids.

Parents who occasionally use force against their children wouldn’t be arrested willy-nilly if Section 43 were abolished. No matter the law, prosecutors still have a modicum of discretion when deciding who to indict, and parents and teachers would still be able to use the typical defenses for an assault charge. Such defenses include that the use of force was inadvertent to protect themselves or someone else, and the de minimus notion in which the defense would have to prove that the offense wasn’t serious enough to be punished.

If you think social workers and child welfare advocates are skilled enough to detect abuse, remember that such workers couldn’t detect the abuse in the Shafia household, and four women died as a result.

Studies say that spanking only corrects behavior in the short term. In the long term, it limits opportunities to learn non-violent ways of resolving conflict, resulting in kids who bully, do badly in school, and increases the likelihood of mental health problems.

It should be noted that the Trudeau government has never explicitly said they’ll repeal Section 43. What the government said is that they are committed to following the recommendations of the Truth and Reconciliation Commission. Whether that includes the call to abolish Section 43 of the Criminal Code remains to be seen.

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