Vancouver Sun, July 6, 2000

Ontario judge upholds so-called spanking law
By James McCarten

TORONTO (CP) - Canadian parents, teachers and guardians can continue to physically discipline children with the blessing of the Criminal Code, an Ontario judge has ruled.

But it's time for clearer rules governing the use of corporal punishment, Judge David McCombs said in a ruling Wednesday that threw out a constitutional challenge of the 108-year-old law.

"The evidence shows that public attitudes toward corporal punishment of children are changing," Judge David McCombs said in a written decision.

"There is a growing body of evidence that even mild forms of corporal punishment do no good and may cause harm."

Children's rights advocates wanted McCombs to strike down Section 43 of the Code, which grants parents and guardians the right to use force in correcting a child that is "reasonable in the circumstances."

The section has been part of the Criminal Code since 1892 and predates even the Charter of Rights and Freedoms.

The Canadian Foundation for Children, Youth and Law had argued that the section violates a child's right to equality and security and sanctions the use of cruel and unusual punishment.

But Parliament has left the section alone, said McCombs, because it recognizes the need for parents and teachers to use their own discretion in deciding when force is necessary.

"Parents and teachers require reasonable latitude in carrying out the responsibility imposed by law to provide for their children, to nurture them, and to educate them," he wrote.

"That responsibility . . . cannot be carried out unless parents and teachers have a protected sphere of authority within which to fulfil their responsibilities."

McCombs was quick to point out, however, that while parents are entitled to use reasonable force, it must always be used with the best interests of the child at heart.

"In a very real sense, parental liberty interests and the best interests of children are opposite sides of the same coin."

Cheryl Milne, one of the lawyers who brought the challenge on behalf of the foundation, said she plans to take the case to the Ontario Court of Appeal.

"It leaves children vulnerable," Milne said of the ruling.

"It doesn't provide sufficient guidance for the interpretation of the section to protect children, and it means the use of force against children is still something that's sanctioned by society."

McCombs threw out the idea that the section discriminates against children on the basis of age - it defines children as anyone under the age of 18 - even though it acknowledges that force must not be used against teens or children under the age of two.

"It's my view that Section 43 is too broadly worded," Milne said. "'Reasonable force' doesn't give sufficient guidance."

Milne also took little comfort from the concerns expressed by McCombs in the ruling about the need for more hard and fast rules to help parents and guardians interpret the section and use force more judiciously.

"The problem is we don't have (those rules) at this point," she said.

"The Canadian government has been told for years that it needs to be more specific in Section 43 and provide more guidelines, but has refused to do so."

Rights advocates like Milne have long argued the law creates a defence for teachers, parents and babysitters charged with assaulting youngsters, and has been used to justify hitting children and teenagers with belts, electrical cords and plastic rulers.

Children are the only group of citizens who can legally be assaulted for reasons unrelated to self defence or the protection of others, they argue.

But the law is a critical tool for educators, said Ontario Teachers Federation president Barbara Sargent, who for one is glad it survived the challenge.

"What Section 43 did and will continue to do is enable teachers to maintain some kind of discipline and balance in the classroom," Sargent said.

"Teachers will be able to work with children as a parent would - in a fair and equitable way."

In arguments against the challenge, lawyers for Canada's attorney general said Parliament must recognize the family as a fundamental unit in Canadian society and parents shouldn't be criminalized for the form of discipline they choose.

In its court brief, however, the federal government said it shared the child advocacy groups' goal of protecting children and agreed parents should not be advised to strike kids in the name of discipline.