Canada’s Archaic Spanking Law
There is considerable debate in Canada whether parent’s have a right to discipline their children using corporal punishment. The ‘spanking law’ is section 43, Correction of Child by Force, in the Criminal Code. It reads that every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction if the force does not exceed what is reasonable under the circumstances. In 2004, the Canadian Foundation for Children, Youth and the Law (CFCY) took Canada all the way to Supreme Court. They claimed that section 43 infringes on children’s rights by violating sections 7, 12 and 15 of the Charter of Rights and Freedoms. This article will look at the judicial interpretations of these Charter sections. It will also show how Canada needs to repeal section 43 to comply with United Nations recommendations.
Section 7 in the Charter reads that everyone has the right to life, liberty and security according to the principals of fundamental justice. The CFYC argued that laws affecting children must be in their best interests, and that section 43 as a criminal sanction, does not meet this standard. The majority tested the principals of fundamental justice according to R. v. Malmo-Levine, at paragraph 113. The three criteria for this test with their judgements are: (1) Does section 43 provide meaningful content for the section 7 guarantee of life, liberty and security? Yes, all parties agreed that ‘the bests interest of the child’ is a legal principal. (2) Is there sufficient consensus that the alleged principle is vital or fundamental to our societal notion of justice? The majority answered that the legal principle of the “best interests of the child” may be overruled, parental authority and privacy rights are dominant over the best interest of children. (3) Is the alleged principle capable of being identified with precision and applied to situations in a manner that yields predictable results? Here the majority shifts responsibility away from courts saying that, Canada has other policies in place to protect the best interest of children (Canadian Foundation for Children youth and the Law v. Canada, 2004) The judge refers to the United Nation’s Convention of the Rights of the Child (UNCRC), and that those in close contact with the children act in their best interest. Finally, the majority stated, the best interests of the child is a legal principal but it is not a principal of fundamental justice” (CFCY v. Canada, 2004, at para.10). Therefore, section 43 is not in violation with section 7 of the Charter.
Justice Arbour in her dissent, wrote that section 43 “is rooted in an era where deploying reasonable violence was an accepted technique in the maintenance of hierarchies in the family and in society” (CFCY v. Canada, 2004, at para 173). Interestingly, as stated in the case, the previous 1892 Criminal Code reads that 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 under his care, provided that such force is reasonable under the circumstances (CFCY v. Canada, 2004). In 1892, children were considered property, being owned by their caregivers. Looking at the wording in the Criminal Code from that time, it is clear that not much has changed as far as what is criminal behavior in light of disciplining children.
Katie Sykes, a lawyer from McGill University, agrees with Judge Arbor’s dissent. In her paper, Bambi Meets Godzilla she writes, “[t]he common law parental right of custody and control— even to the point of holding the power of life and death over the child imposes powerful constraints on the state’s capacity to act in the realm of family policy” (Sykes, 2006. p.135).
Section 12 of the Charter reads that people are protected from cruel and unusual punishment, such as punishment that degrades human dignity. The majority stated at paragraph 58, that section 43 allows corrective force by parents and since a family is not the state, there is no Charter violation. Teachers, however, may be employed by the state. This is where there is changes to section 43, teachers now are only legally able to use force to remove children instead of for corrective discipline purposes.
Syke’s writes, “[that] it is an instructive exercise to try to conjure up in one’s mind an image of a calm, rational parent hitting his or child without a trace of anger” (Sykes, 2006, p.155). She goes on to say that trial courts have a confusing task, namely, trying to identify the content of a category that arguably does not exist (Sykes, 2006).
What is reasonable in considering using violent force upon a child seems moot to even need discussion. The research is large against violence in families. Dr. Murray Straus, a childhood discipline expert, found that even mild physical punishment is comparable to abuse in its long term effects. Physical punishment contributes to adolescent depression, violence in school, juvenile offending, and domestic violence (Straus, 1994).
Section 15 of the Charter gives people equal benefit and protection of the law without being discriminated against. However, section 43 permits an adult to assault children, if done to an adult they would be prosecuted. The question of age discrimination was agreed by all parties in this case. However, the majority defended this infringement by saying that equal treatment is not the same as identical treatment. Since kids are not fully matured they require different treatment under the law than adults (CFCY v. Canada, 2004).
The majority continued to defend its stance by meeting the test in Law v. Canada, to justify violating section 15 of the Charter. They stated that children are vulnerable and the act of discipline itself will remove their rights. The court also stated that parent’s actions pose no reasonable risk of harm and that the correction is more “transitory and trifling”, and within the law. The majority said that the weight of considering giving parental right to use force and protecting the best interest of children is met through section 43 (CFCY v. Canada, 2004, at para 59).
Katie Sykes commented in this by saying, “[t]his analysis of “correction”, sends trial judges off on a quest to find a mythical beast: in this case, “sober, reasoned” applications of force by a parent who is not angry or frustrated to a child who will learn and “benefit” from being hit” (Sykes, 2006. p.155).
It has been 27 years since Canada signed onto the United Nation’s Convention (UNCRC). The Convention states that parties must protect children from all forms of physical or mental violence (Convention, 1990). In 2012, Canada was asked by the UNCRC to report on measures taken to incorporate the Convention into national law. Canada’s reply to this question appears to justify the archaic state of section 43. The reply reads, “Canada’s approach is to ensure that domestic legislation, policies and practices comply with the human rights treaty prior to its ratification” (Treaty Bodies Countries, 2012).
The spanking law made the news recently when the Aboriginal Truth and Reconciliation Committee announced their 94 Calls to Action. They asked the federal government to repeal section 43. The new Liberal government has since said they would follow all recommendations of the committee.
Hopefully, Canada upholds its promises to children, Aboriginal People and the United Nations. The archaic spanking law is no longer a value most Canadians hold.