Repeal 43 Committee

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Superior Court Application/Decision

Application to Superior Court

Dec 6 to 10/99 A constitutional challenge to s. 43 by the Canadian Foundation for Justice, Youth and the Law is heard by Mr. Justice David McCombs of the Ontario Superior Court of Justice. The grounds of the application are that s. 43 violates the Charter and the UN Convention on the Rights of the Child. Justice McCombs reserves judgement.

Comment

Dec 5/99 Article in Globe and Mail It's time to stop hitting our kids

Incredibly, a law is still on the books in Canada that serves as a defence for even severe assaults on our most helpless citizens. On Monday, an Ontario court will be asked to strike down this defence to assault that has existed in our Criminal Code for more than 100 years. It allows teachers, parents and persons standing in the place of parents to use "reasonable" force for the "correction" of children and is se out in Section 43 of the Code.

The movement to strike down this archaic law has been in motion for more than six years, and an application by the Canadian Foundation for Justice, Youth and the Law will now, belatedly, be heard in court.

It's time to stop hitting our kids. Section 43 violates the security of the person and equal protection and benefit of the law guaranteed by our Charter of Rights and Freedoms, and the United Nations Convention on the Rights of the Child - ratified by Canada - requiring us to protect children from all forms of violence, injury or abuse.

Unfortunately, the constitutional challenge is opposed by the government, the Canadian Teachers' Federation and a group of organizations under the name Coalition for Family Autonomy, which includes Focus on the Family, the Canadian Family Action Coalition, the Home School Legal Defence Association of Canada, and Real Women of Canada. This opposition is based on the ridiculous notion that the absence of Section 43 would make proper discipline impossible. The challenge is supported by the Ontario Association of Children's Aid Societies - the only one of nine involved organizations given status to intervene on behalf of the applicant.

Section 43 of the Code and the English common law on which it is based have a long, sad history of flogging, caning and birching, not only of children, but also of apprentices, soldiers and sailors, prisoners and, with less violent forms of corporal punishment, of domestic servants and wives. English literature of the 18th and 19th centuries is replete with instances of such painful "correction" and reflects the authoritarian and undemocratic spirit of the age.

Over the years, the power to inflict corporal punishment on wives, domestic servants, soldiers and sailors ended. In 1892, however, when our criminal law was first codified, the correction of children, apprentices and persons convicted of certain crimes was still part of the common law. These powers were therefore incorporated in our Criminal Code. The power to correct apprentices and convicts has since been sensibly deleted from the Code. The only class of Canadians who can still be "corrected" by "reasonable force" are those most in need of our protection: children.

This remains despite numerous reports and studies that have recommended review or repeal of Section 43. Petitions and private member's bills have also urged repeal. The government, through Health Canada, advises parents that "spanking is a bad idea" and it is known to have harmful consequences, such as causing depression and low self-esteem, and sending negative messages about violence.

But a review of judicial decisions of the 1990s shows acquittals of teachers and parents for assaulting children with rulers, belts, karate chops, kicks, punches, face slapping, hitting with a hammer, and spanking that left marks and bruises. No such Section 43 defence could be raised if these assaults were committed on adults.

Section 43 must be ended to change the message that hitting a child is a necessary method of discipline. Teachers and parents need to understand that hitting is not appropriate and that non-violent options can be learned. Ending Section 43 would be a major step forward toward preventing the escalation of spanking to abuse and other harmful consequences.

The coalition that opposes this motion is on shaky legal and moral ground. Of those who support Section 43, the Canadian Teachers' Federation is against corporal punishment in schools and agrees that the section is not needed for self-defence, protection of others, and defence of property. But it contends that Section 43 is essential to allow teachers to remove pupils from a classroom or escort them to the principal's office. This is not so. Other provisions of the Criminal Code, common law and provincial education acts allow the use of reasonable force in these and similar situations.

The coalition argues that parents will be found guilty of assault for removing a "screaming child from a shopping mall or holding a child in one place against his will." This need of parents to restrain and control children is well recognized by the common law and is separate from the Section 43 power to hit children. The law would be, to quote Dickens, "a ass, a idiot" if it failed to recognize this power.

The coalition argues that spanking is legitimate. Focus on the Family not only recommends spanking for what it calls "wilful defiance" but advises that it should be carried out with a switch or paddle, on children as young as 18 months, and that it should be the first, not the last, resort for such "defiance". This is a strange bedfellow for a government that advises parents that "it's never okay to spank children."

The argument that without Section 43, teachers and parents will be exposed "to the incursion of state law enforcement for every trivial slap or spanking" ignores the rule that trivial breaches of the law are not to be prosecuted and the right of provincial attorneys-general to issue guidelines to avoid inappropriate prosecutions.

And what is the greater harm? The possibility of an inappropriate prosecution or the certainty that the abuse and harm experienced by thousands of children as a result of corporal punishment will continue? Society pays a high price in human suffering and expense in dealing with the results of this licence to hit children. It is time to end it. By doing so, the court can usher in a kinder and gentler era for Canada's children.
Corinne Robertshaw is a retired lawyer and federal public servant, and founder of the Repeal 43 Committee.

Dec 14/99 Letter to National Post What about the children?
In your editorial Abusing the Constitution (Dec.9) you state that child abuse cannot be tolerated. The Canadian Foundation for Children, Youth and the Law, the organization bringing the constitutional challenge to Section 43 of the Criminal Code, would agree with you. This 1892 defence allows "reasonable" assaults on children for "correction" - thereby giving the message that hitting is a rightful form of discipline.

It is not enough, however, to pronounce that abuse "cannot be tolerated". Action to prevent it is required. Credible evidence shows a correlation between corporal punishment as a method of discipline and actual abuse. Ending the section is not about prosecuting parents for "spanking". It's about changing the message.

The attorney-general of Canada argues that child protection legislation is sufficient to protect children from abuse. This complacent assumption requires a reality check. Ontario's children's aid societies receive and essentially confirm at least 10,000 reports of physical abuse each year. This is the tip of the iceberg. Some tip. Some iceberg. By ending this section 43 seal of approval on hitting, some of these injuries - and deaths - can be prevented. It is not the Constitution that is being abused. It is the children.
Corinne Robertshaw, Coordinator, Repeal 43 Committee, Toronto.

Decision of Superior Court

July 5/00 Mr. Justice David McCombs of the Ontario Superior Court of Justice issues a 28 page judgement dismissing the constitutional challenge to s. 43 brought by the Canadian Foundation for Justice, Youth and the Law.

Comment

July 6/00 Repeal 43 Committee News Release Corporal punishment does more harm than good, says judge

In spite of finding a growing consensus that corporal punishment does more harm than good, that even mild corporal punishment may cause harm, and that section 43 "seems to have sanctioned violent child abuse", Judge McCombs has upheld this 1892 section of the Criminal Code; the section that allows parents and teachers to hit children for "correction". The question of whether this defence violates a child's right to the equal benefit and protection of the law guaranteed by the Charter was disposed of in half a page of his 28 page judgement. Section 43 is not discriminatory and does not increase the vulnerability of children, said the judge - children can be protected though Parliament amending the section. Such an amendment would apparently provide specific criteria as to how, when, where, with what, and at what age, a child could be hit.

The overriding concern of Judge McCombs is protecting parents and teachers. He fears inappropriate prosecutions, but not does address the possibility that these can be avoided through the rule against trivial prosecutions, the issuing of prosecutorial guidelines and the existence of diversion programs. The judge simply accepts the argument that without section 43, putting an unwilling child to bed or administering a single slap to the bottom would become "criminalized", and that section 43 must therefore remain. This remote possibility is apparently more important than the harm caused by the law's approval of corporal punishment.

Judge McCombs also fails to address the point that teachers and parents can use reasonable force for restraint and control without having to rely on section 43 because this power already exists under common law . Further, that other sections of the Code allow force for self-defence, defence of others, and defence of property.

"Judge McCombs has missed an historic opportunity to strike down a harmful and discriminatory section of the Code", said Corinne Robertshaw, Coordinator, Repeal 43 Committee. "The law shouldn't be putting its seal of approval on hitting children. It's wrong in principle and harmful in practice. If the government fails to strike down this relic of the past, we are confident that an appellate court will do so."

The Repeal 43 Committee is a national, multi-disciplinary, volunteer committee of professionals involved with children. It was established in 1994.

July 7/00 Letter to Globe and Mail Spank the judge
An Ontario judge has decided that hitting children should remain legal, but that it's only okay to use "appropriate" force. The only problem is that nobody knows what this is, and the law does not define it. There is no good evidence that spankings works, but there is lots of evidence that it doesn't.

When do you start spanking? At birth? And when do you stop? Is there a size of child who is appropriate for hitting? If hitting is a safe effective technique of dealing with problem people, then why don't we allow it in schools, in marriage or in the army?

Most parents, including myself, are not perfect, and we will sometimes feel like swatting a child out of sheer frustration - and we often do it. But surely the right thing to do is to make hitting children illegal, in principle at least. There are effective, non-violent ways to raise responsible, disciplined and motivated children. Why do we not systematically teach parents these concepts and give them the support they need to do their job?
David C. Rainham, MD, Kitchener, Ont.

July 7/00 Article in The Record (Kitchener - Waterloo) Ruling is absurd: If society preaches non-violence, why can parents still hit their children?

It is very disturbing that an Ontario judge has decided that hitting children should remain legal, especially given some recent statistics. In the last two years, referrals to Family and Children's Services have increased 21 per cent, the number of referrals needing investigation has increased by 58 per cent, one in three boys is physically abused in Ontario and local child welfare expenses have grown from $13 million in 1997 to $20.6 million in 1999 - a 56 per cent increase.

It's true that expert opinion is divided about whether spanking is a good idea. Is there a logical answer? Either hitting is a good discipline technique or it is not. If it is not, then why should it not be as illegal as any other assault?

Certainly all parents sometimes feel the urge to spank or hit, and most parents do, perhaps because no one has ever taught them, or given them a better alternative. Many parents have only the vaguest notion of child development and few strategies planned for disciplining with consistency.

Lots of people say "Stay out of my life please, let me run my family the way I want. I was spanked and it never did me a bit of harm..." etc., etc.

People who believe in "physical discipline" say it's OK if done calmly and without anger. This makes sense because hitting a child in anger involves no thought, and is essentially a parental temper tantrum. But if hitting is done calmly and logically, is it a reasonable thing to do, or is it just being a bully? Spanking advocates usually say "do it only when you really need to" - an often-quoted example is a child running into the road and nearly getting killed. The parent runs up and hits the unhurt kid to show how loved they are. Great logic. I think the urge to hit probably comes from anger at themselves for not watching the child properly.

Pro-spankers say it's only OK to use "appropriate" force, but the only problem is that no one knows what this is and the law does not define it. There is no good evidence that spanking works, but there is lots of evidence that it doesn't. Evidence shows that when schools used the cane, it was the same 10 per cent of children who got hit over and over.

Almost all violent criminals have been abused as children. And if you ask a child who has been spanked what it was for, very rarely can they remember - except to say "You were mad," or "I was bad." So how does this help them change their behaviour? A single spank may interrupt an annoying behaviour for a few moments, but it teaches nothing. It means "I've run out of patience." You'll probably have to do it again, but when the amount and intensity of the spanking increases, or other means such as straps and belts are used, the message is "I'm bigger than you and I cannot spend the time and effort to learn to deal with you without violence." It's so easy for a stressed, impaired or ignorant parent to cross the line into major beatings that make you sick when you see them in the newspaper.

But, you say, spanking is effective ! So when do you start? At birth? And when do you stop - is there a size of child who is appropriate for hitting? Most parents stop when the child is big enough to hit them back, or when the child just laughs at you. Either way, when the child is no longer afraid of you, you have lost all power unless you escalate your violence, or you have developed other discipline techniques - in which case you did not need to hit the child in the first place.

If hitting is a safe, effective technique of dealing with problem people, then why don't we allow it in schools, in marriage, or in the army? If you upset me, am I allowed to come over and hit you without being charged for assault - as long as I am bigger than you? I don't think so.

We rightly condemn violence against women and make it illegal, so why are children the only members of our society that we can hit? This is absurd. Most parents, including myself, are not perfect, and we will sometimes feel like swatting a child out of sheer frustration - and we often do it. But surely the right thing to do is to make hitting children illegal, in principle at least. This will reinforce the important message that there are effective, non-violent ways to raise responsible, disciplined and motivated children.

Children need unconditional love, structure, limits, rules and consequences. They do not need - or deserve - to be physically assaulted. Raising a child is the most difficult and the most important job that most of us will ever have. Why have we not taught present and future parents how they can do it without violence, and given them the support they need?
Dr. David Rainham, a Kitchener physician, is co-founder of Action for Children, an organization dedicated to abolishing child abuse and neglect.

July 7/00 Article in Globe and Mail A blow against justice for children - The decision that spanking is constitutional is strikingly retrograde, says a lawyer

Mr. Justice David McCombs has missed an historic opportunity to uphold the right of children to the same legal protection from assault that we adults take for granted. He's the Ontario Superior Court judge who has just ruled that spanking does not violate the constitutional rights of children.

We adult Canadians assume that no one has the right to hit us in order to correct our behavior. And we assume that the law respects this right. Children, however, do not have this protection and cannot assume that the law grants it. This is because section 43 of our Criminal Code gives parents, teachers and substitute parents the power to use corporal punishment for "correction" by making it a defence to a charge of assault.

This section was incorporated into our Criminal Code in 1892. It is itself a legacy of past centuries of English common law that sanctioned the corporal punishment, not only of children, but also of wives, servants, apprentices, persons convicted of crimes, and others.

Adults subject to such correction were able over the centuries to assert their right to legal protection from such "corrective" assaults. Children had to wait until the 1970s - and in particular the United Nations International Year of the Child - before a sufficient number of adults began to question this antiquated legacy. It has been questioned and discussed by commissions, legislators, and the judiciary in a number of countries. But not in Canada.

Unfortunately, Judge McCombs's overriding concern is to protect parents and teachers rather than children. While finding that there is a growing consensus that corporal punishment does more harm than good, that even mild corporal punishment may cause harm, and that section 43 "seems" to have sanctioned violent child abuse, he nevertheless finds that the section does not violate the rights of children - indeed is actually in their best interests, and is therefore constitutional.

He accepts the government's argument that it has a rational "strategy" to allow parents and teachers to use corporal punishment. Yet even as the Minister of Justice is advising that the corporal punishment allowed by section 43 is quite acceptable, the Minister of Health is advising that it's "a bad idea" .

This contradiction is accepted because of concern that parents could face criminal prosecution for using reasonable force to put an unwilling child to bed or administering a single spank to a child's bottom. Parents must have a "protected sphere of activity" even if the corporal punishment allowed by the section has resulted in kicks, bruises and beatings.

How realistic is the judge's concern? Already inappropriate prosecutions can be avoided in several ways. The de minimus rule prohibits prosecutions for trivial breaches of the law. Provincial attorneys-general can issue guidelines to avoid prosecution where better alternatives exist. These guidelines can be further refined by police, prosecutors and child-protection workers in consultation with other relevant community groups. Even where severe assault occurs, the case can still be diverted from the criminal justice system and an alternative followed.

Judge McCombs also appears to accept the argument of the Canadian Teachers Federation that section 43 is needed to allow teachers to restrain unruly students and to remove them from the classroom. The counter argument - that teachers already have such power under the common law, the Criminal Code, and provincial education statutes - is not dealt with. It seems that teachers require every possible available defence, even if the Section 43 defence also contributes to the problem of child abuse. The "chilling" effect on teachers of removing section 43 is more important, in the judge's opinion.

Judge McCombs solution to the problems posed by section 43 is to have Parliament set out specific criteria to ensure that only mild or moderate spankings would be allowed. These criteria would apparently indicate how, when, where, with what, at what age, and, presumably, how often, a child could be hit for "correction".

I'd argue that this does not answer the problem. For one thing, it retains the principle that hitting is a legitimate form of discipline. Further, it increases, rather than decreases, the need for prosecutions as prosecutors attempt to test the limits and parameters of the criteria.

The rational way to deal with the anachronistic and dangerous defence of Section 43 is to get rid of it. The rights and protection of children would thus be upheld, and parents and teachers given a clear message that hitting is no longer an acceptable method of correction. And Canada would not be breaking new ground in doing this. Since 1979, ten countries have repealed this defence by legislation or judicial decision. These include Austria, Italy, and Israel.

At a time when research shows that at least 10,000 cases of physical abuse occur each year in Ontario alone, and that almost all begin with attempts at "correction" by corporal punishment, it is time to address one of the major roots of the problem. It's difficult to understand how Judge McCombs can hold that section 43 does not increase the vulnerability of children and is in their best interests. Canada's children will have to wait a little longer to have their needs recognized. If the government doesn't do so, an appellate court will.
Corinne Robertshaw is a retired lawyer and founder of the Repeal 43 Committee

July 17/00 Letter to Toronto Star Judge's views flawed on spanking
Re your editorial, Rethink spanking law (July 8). You quote Mr. Justice David McCombs' belief that without Section 43, a parent or teacher who spanks a child, puts an unwilling child to bed, or removes him from the classroom could be charged with an offence. These are totally unrealistic scenarios.

Criminal charges are laid only if there is clear evidence an offence has been committed and it is in the public interest to do so. In the case of an open-handed spank, the rule against prosecution for trivial breaches of the law and prosecutorial guidelines from provincial attorneys-general are sufficient safeguards against such charges.

Putting an unwilling child to bed or removing him from class is allowed by common law as reasonable force for restraint and control. This is such an obvious part of child-rearing it was probably considered unnecessary to spell it out as a defence in the Criminal Code.

Not so with the power to hit a child as punishment for purposes of "correction". This is a clear departure from the right to security of the person and equal protection of the law and had to be specifically set out as a defence. It is this power that is embodied in Section 43 of the code and is now being challenged. It surely can be ended without affecting the defence of restraint. If these fears are the reason for the opposition to ending Section 43, the section could be replaced by adding the defence of restraint to the code; providing it is made clear that it did not include corporal punishment for correction.

In the final analysis, we must decide which is the greater problem - the harm caused to the thousands of children by the laws approval of corporal punishment or the unlikely possibility of inappropriate prosecutions.
Corinne Robertshaw, Coordinator, Repeal 43 Committee, Toronto