Repeal 43 Committee

News l Poulin Decision l Church of God Case l Randal Dooley Death l Superior Court Application/Decision l Court of Appeal Decision l National Child Day l Jeffrey Baldwin Death l Articles/Letters 1990 - 2008

Court of Appeal Decision

Jan 15/02 - The Ontario Court of Appeal dismisses the appeal from the judgement of Justice McCombs in the constitutional challenge to section 43 brought by the Canadian Foundation for Children, Youth and the Law. The Court heard the appeal from Sept. 10 to 12/01 and delivered judgement today.

Comment

Jan 15/02 Repeal 43 Committee News Release Ontario Court of Appeal decision - Mired in the 19th century

The Ontario Court of Appeal today unanimously rejected the application to strike down section 43 of the Criminal Code allowing "reasonable" assaults on children for their "correction". The application was brought by the Canadian Foundation for Children, Youth and the Law.

Among other submissions, the Foundation argued that section 43 of the Code violates the right of children to the equal protection and benefit of the law without discrimination based, among other things, on age. This right is guaranteed by section 15 of the Canadian Charter and can only be limited if the limitation can be "demonstrably justified in a free and democratic society".

The Court agreed that section 43 violates the rights of children but held that this violation was "clearly justified" under section 1 of the Charter. It stated that "there is no empirical evidence establishing a definitive long term causal link" between corporal punishment and poor outcomes for children. It went on to say that without section 43, parents and teachers would be prosecuted for "non-abusive physical punishment ". Further, that section 43 "does not approve or encourage corporal punishment", that the risk of physical harm to children is "modest ", and that "the state is vigorously pursuing educational programs to discourage physical punishment of children".

Corinne Robertshaw, Coordinator, Repeal 43 Committee, stated: "Once again, Ontario courts have missed an historic opportunity to uphold the fundamental rights of children and help prevent their abuse. Ample evidence linking corporal punishment with harmful outcomes, including a serious risk factor for actual injury, was before the court. Restrictions on tobacco and seat belt and safety helmet legislation are based on statistical correlation's. Proof of "definitive causal" links are not required. Neither should such proof be required to protect our children from the dangers of corporal punishment."

"Failing to strike down this 19th century defence to assault on the basis that doing so will automatically result in criminal prosecutions for all instances of corporal punishment ignores the many alternatives to prosecution. It is an alarmist notion that underestimates the flexibility of our justice system in which provincial guidelines can mandate diversion, counseling, and education rather than prosecution."

"Claiming that section 43 does not approve or encourage corporal punishment and that the risk of physical harm from such punishment is "modest " simply flies in the face of all the evidence presented in this case."

"The statement that the government is vigorously pursuing an educational campaign to discourage physical punishment not only overstates Health Canada's activities, but also ignores the fact that its message is directly contradicted by the legal "justification" of corporal punishment under section 43." "This license to hit defenseless children is a legacy of a bygone age that also allowed the physical "correction" of wives, servants, prisoners, and military personnel. Being adults, these classes of citizens have been able to end the law's approval of such "discipline". Children, however, must rely on others to protect their rights. Unfortunately, neither our political leaders nor our judges have yet seen the need to do so."

Jan.16/02 Article in Globe and Mail Children's rights take a blow - By upholding the right to spank, the courts are hurting the law's ability to protect children from abuse, says youth activist Matthew Geigen-Miller

Yesterday the Ontario Court of Appeal upheld Section 43 of the Criminal Code, which permits teachers, parents, and people acting in the place of a parent to use physical force to discipline a child. But don't break out your strap yet: It could be years before the inevitable appeal to the Supreme Court is completed, before clarity and closure are reached in the spanking debate. The Court of Appeal has resolved nothing; it has only deepened the controversy surrounding corporal punishment of children. It's now more important than ever for our federal government to resolve this problem in Parliament.

For 15 years, the National Youth in Care Network has been speaking about the harmful effects of hitting children. All our members and leaders are youth under 25 who have been in some government's care. Most of our members experienced abuse or neglect in their homes and were taken into the care of child-welfare authorities for protection.

Once brought into the care of the child-welfare system, some young people continue to experience maltreatment, and, in some cases, further abuse. To protect other children from facing such experiences, our members speak out about their encounters with family violence, neglect, and the shortcomings of the child-welfare authorities. A law that allows caregivers to hit children concerns us deeply. Our experience shows that hitting children has terrible consequences.

There are many good reasons to do away with legalized corporal punishment of children. But Canada's Department of Justice has chosen not to act to change Section 43. Instead, our government has left this decision to the courts. Given our depth of experience with this issue, it made sense for us to recount cases we're familiar with.

Michelle from Ontario: She views spanking and similar punishments not as the consequence of misbehaviour, but as a gateway to harmful physical abuse. "It escalates," she says. "Sometimes, I would try to fight back because I was being violated, physically. And that would further enrage my mom. And, of course, the adult is stronger in the end, and will end up inflicting the most damage."

Responsible parents who are in favour of corporal punishment often say that they would never hit or spank a child while angry. Unfortunately, there are countless cases where a parent in an emotionally charged situation began to hit and ended up abusing. By eliminating Section 43, we stop encouraging a discipline method that is known to be a gateway to abuse.

Stacy from Alberta: Her experiences with corporal punishment were not limited to the family home that the child-welfare system took her away from but carried on in foster homes. "It was my first foster home and I was really scared" she recalls. "If I'd get angry, [my foster mother] would pick me up and she'd throw me. I went to school with a bruise on my forehead because she slammed my head into the wall. The police came [but] didn't do anything."

Children are not only vulnerable to corporal punishment from their families. Section 43 allows teachers and "persons acting in the place of a parent" to use force to correct a child. This is especially troubling for children and youth in care who can be subjected to abuse in a foster home. Eliminating the Section 43 defence for foster parents and other substitute caregivers will help to ensure that the child-protection system really does protect.

Richard from British Columbia: He was finally taken into care and placed in a foster home in his early teens, long after child-welfare authorities had investigated his home for abuse. His stepfather's "discipline excuse", Richard says, kept him from getting the protection he needed sooner. "There were investigations but they were dropped because my stepfather said I was lying and that I was only hit for discipline."

Section 43 obscures child abuse investigations, making it difficult for police and child-protection workers to make a legal distinction between abuse and discipline. It can also discourage the police from pursuing child-abuse complaints, because of the view that Section43 undermines both the mandate and legal grounds to prosecute any child-abuse case that could be justified as discipline.

Removing Section 43 from the Criminal Code will give police, crown prosecutors and child-protection workers more power to investigate and prosecute child-abuse cases. It will allow them to make decisions to prosecute based on the community standard - not the standard set by a 109-year-old law. So here's our message to Martin Cauchon, the new federal Justice Minister: Don't wait for the courts to do the work for you. Introduce legislation to repeal Section 43 this spring.
Matthew Geigen-Miller, 22, is director of education and communications for the Ottawa-based National Youth in Care Network, an advocacy group for the more than 62,000 children and youth in care in Canada.

Jan 17/02 Letter to Globe and Mail Using reasonable force
How disappointing that the Ontario Court of Appeal ruled that parents and teachers can spank children under their care without violating the Charter of Rights (Ontario Court Upholds Parents' Right to Spank - Jan. 16).

It is amazing how much confidence the court is placing in the ability of parents and their surrogates to truly understand exactly what amount of force "does not exceed what is reasonable under the circumstances". If it hurts just " a little" is that reasonable?

The use of force to discipline children is simply wrong. It accomplishes nothing but physical harm and psychological damage and is an impulsive reaction resulting from an adult's inability to control his or her anger and frustration. And what of the adult who takes the time to assess the amount of "reasonable" force to be exerted? How frightening for a child to be living with such an individual. Discipline is not to be taken lightly, but surely by now we know that violence simply begets violence and that there are better ways.
Cindi Milne Resnick, Ottawa

Jan 20/02 Letter to Toronto Star The hypocrisy of child abuse laws
Re: Second ruling upholds spanking and "From head to toe. From back to front." Jan.16 . These two sad stories were juxtaposed in your paper. One was about the little boy beaten to death by his parents in the name of discipline, and the other was about the Ontario court of Appeal's refusal to strike down an archaic section of the Criminal Code, which allows parents and others to strike children in the name of discipline.

It is to Canada's shame that such a law exists. The court acknowledged that hitting children to discipline them is both ineffective and wrong, but couldn't find the courage to strike down Section 43.

In your editorial on Jan.17 (Balance needed), you buy the absurd argument made by the court that parents could be charged for putting an unwilling child in a car seat. The police and the courts have discretion in charging and prosecuting. These are not the situations that need prosecution. Much worse is done to children and charges are never laid.

Canadian children deserve the same protection from assault as the rest of us. Health Canada publications tell parents that hitting children is wrong, but the Department of Justice gives the opposite message, that it is lawful and justified to hit children. What hypocrisy.
Ruth Miller, Toronto

Jan 22/02 Letter to Globe and Mail Scrap Section 43
It is Canadian Teachers Federation president Doug Willard, (letter - Jan.17) who is wrong, not Matthew Geigen-Miller (Children's Rights Take A Blow - Jan 16) in responding to the Ontario Court of Appeal ruling on section 43 of the Criminal Code. Teachers do not need section 43 to prevent criminal prosecutions for returning a student to line, restraining or removing a student, separating a bully from a victim, or putting an uncooperative child on a school bus. Sections 25 to 42 of the Criminal Code allow reasonable force to be used in all these situations.

Section 43 is being used, not for these purposes, but to allow teachers to hit students on the head, slap them in the face, and "karate chop" them on the arms and shoulders. It is these assaults that must no longer be approved by our law.

European countries, including Britain, have ended this 19th. century defence to assault by teachers. The CTF should stop trying to defend the indefensible and accept that Canada, too, must enter the 21st. century. A zero tolerance for violence must apply to teachers, not just students.
Corinne Robertshaw, Repeal 43 Committee, Toronto

Feb 19/02 Letter to Montreal Gazette Spanking survey mislead respondents
The Leger Marketing survey posed the wrong question when it asked "Should the government pass legislation to ban parents from spanking their children ?" (Gazette, Feb. 11, "Few back spanking ban: poll") This was not the question before the Ontario Court of Appeal when it upheld section 43 of the Criminal Code. Nor is this advocated by the appellant in the case, our committee, or the more than 70 organizations that have urged Ministers of Justice to repeal this section of the Code.

Section 43 is a defence to assault on children by parents and teachers if the assault is "reasonable" and for "correction". Ending this defence, which dates back to 1892, is very different from enacting new legislation specifically making corporal punishment an offence. Doing so would target this behaviour and indicate an intent to prosecute and punish it. Repealing section 43 carries no such implications. It would simply give children the same legal protection as adults.

Asking the wrong question unfortunately elicits the wrong answer. If the right question had been asked, the results would have been quite different.
Corinne Robertshaw, Repeal 43 Committee, Toronto

National Child Day

The United Nations Convention on the Rights of the Child was adopted by the General Assembly in 1989 and ratified by Canada in 1991. Among other things, it requires signatories to protect children from all forms of violence, injury or abuse, and to make the Convention widely known by adults and children alike. In 1993, the Canadian govt designated Nov 20 each year as National Child Day to promote the Convention and the rights of children.

Nov 20/07 National Child Day Open Letter to Senators calls for repeal of s. 43 and passage of Bill S-209

Nov 20/06 National Child Day Open Letter to MPs calls for repeal of s.43

Nov 20/05 National Child Day Open Letter to Prime Minister call for repeal of s. 43

Nov 20/04 National Child Day Open Letter to Prime Minister call for repeal of s. 43

Nov 20/03 National Child Day ad in Globe and Mail calls for repeal of s. 43

Nov 20/03 Article in Toronto Star National Child Day Time to Spare the rod

Despite U.N. pleas to change, our Criminal Code still permits violence against children by adults in the name of correction

Ruth Miller

Today is National Child Day. Our federal government has designated Nov. 20 to commemorate the 1989 United Nations Convention on the Rights of the Child. Canada was a leading promoter of the Convention and ratified it in 1991.

Our support for this U.N. initiative makes me proud.

But each year as this day approaches I think about whether we actually live up to our obligations as a signatory and just how willing we are to honour this commitment to our children, especially when it concerns the issue of corporal punishment.

Article 19 of the Convention obliges signatories to protect children from all forms of physical and mental violence. But our Criminal Code contains a section that permits physical violence against children by parents and teachers in the name of correction. It is section 43.

The United Nations has established a Committee to monitor the progress made by countries that have ratified the Convention. Twice, Canada has been asked by the Committee to remove this section of the Code. The U.N. first asked in 1995 and then again in October of this year.

But we have not done so. And the Committee has expressed its "deep regret " at this lack of action. Instead of upholding the right of children to protection from assault, our government has chosen to support this license to hit them.

This despite evidence that corporal punishment has no benefit, and much evidence that it is harmful. And moreover, in spite of urging by more than 70 Canadian organizations to repeal this 19th century section of the Criminal Code.

This does not make me proud.

The Government seems unwilling to face the wrath of groups who not only believe that parents should have the right to strike their children, but that they actually have an obligation to do so.

So, child advocates have turned to the courts to address this issue, maintaining that section 43 is unconstitutional and violates a childÿs basic right to security and equal protection of the law.

The government has fought this challenge in the Ontario courts. It is now before the Supreme Court of Canada and a ruling is expected any day. Whatever the results of the case, it is apparent that Canadian attitudes about corporal punishment are changing.

This makes me hopeful.

A recent survey of Canadians by Decima Research for Toronto's Public Health Department found that 69% of respondents believe teachers should not be allowed to physically punish children and 51% believe parents should not be allowed to use physical punishment as a disciplinary measure. This opinion increases to 60% if guidelines are in place to prevent prosecution for "mild spanking."

Section 43
Correction of Child by Force
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.

What is even more encouraging is that support for ending corporal punishment of children is higher among people age 18-34, and among women, usually the primary caregivers of children. Support for the idea of ending corporal punishment increases if people can be assured that research shows it has harmful effects, and can be a precursor to child abuse.

So Canadians generally want to do the best for children. But it is not always clear to them what the best is. Many Canadians equate discipline with physical punishment and cannot see other, positive ways to help children "behave".

That is why it is so important to remove legal support for corporal punishment as a means of discipline and educate parents and caregivers in effective and humane methods of childrearing.

It is ironic that the Federal Government is at odds with itself on this issue. While the Department of Health discourages corporal punishment, pointing out that it is not effective and in fact harmful, the justice department maintains that section 43 is necessary and, in fact, rightful.

This makes me question the government's sincerity.

Twelve nations have so far banned corporal punishment of children. Sweden was the first to do so. Iceland the most recent. These countries recognize that children are as worthy of protection from assault as are adults.

Canadian children deserve no less.

I look forward to the day when Nov. 20 can be a true celebration of children and when Canada is once again recognized as a leader on issues of human rights - including the rights of children - our most precious and vulnerable citizens.

Ruth Miller is a member of the Repeal 43 Committee, which is dedicated to repealing the section of the Criminal Code dealing with corporal punishment for children. She is also a children's author who worked for 20 years for Toronto Public Health.
www.repeal43.org

Nov 20/00 Article in Toronto Star It's time for parents to stop hitting kids

Today is National Child Day in Canada. It marks the eighth anniversary of Canada's ratification of the United Nations Convention on the Rights of the Child. Article 19 of the Convention requires signatories to take appropriate legislative measures to protect children from "all forms of physical or mental violence, injury or abuse". In Canada, Section 43 of the Criminal Code states that parents, schoolteachers, and caregivers standing in place of parents are "justified in using force by way of correction" against a child. This section was codified in 1892 and is the last remaining relic of common law that also allowed husbands to physically punish their wives.

The Liberal government has refused to repeal Section 43 despite the section's continued violation of the UN Convention and our own Charter of Rights and Freedoms, despite the fact that its own Health Canada rejects spanking, and despite the fact that 11 European countries - most recently Germany and Israel - have already passed legislation prohibiting the corporal punishment of children.

Repealing Section 43 will mean that individuals charged with assault on a child will no longer have access to this legal defense to justify their actions (under Section 43 individuals have been acquitted of what most of us would consider to be extreme acts of violence against kids). Under the law, parents, teachers and caregivers will continue to enjoy legal protection to physically intervene in a wide range of situations (for parents to stop a child from running onto the road or for teachers to break up a fight, for example). Under the de minimus rule of common law, parents who slap or spank their child will not be criminally charged, as trivial breaches of the law are not prosecuted under our system. Spanking doesn't resolve any behavioural problems

Irrespective of the current legal situation, however, we as individuals can make the choice now to stop hitting children as a method of discipline. Ample evidence exists to justify this choice. A 20-year body of research literature has documented a list of negative outcomes for children who receive physical punishment. Short-term effects evident during childhood include increased aggression, defiance, behavioral problems, developmental delays, and hyperactivity. The research literature directly contradicts historical conventional wisdom about spanking: Spanking doesn't resolve behavioral problems, it creates them.

Long-term outcomes for adults physically punished as children include depression, anxiety, low self-esteem, antisocial behaviour, delinquency, abuse of one's own children, and increased risk for spousal assault. A recent large-scale Canadian study found that even kids who received mild to moderate slaps and spanks are much more likely to experience lifetime anxiety, depression, drug and alcohol abuse and emotional problems.

The correlation between corporal punishment and negative outcomes has been consistent over time and across research methodologies - an academically accepted testament to the reliability of findings. Notably, no positive outcomes have been found for kids who are physically punished. These research findings make intuitive sense when we allow ourselves to go back to our own experiences of corporal punishment. Being hit by one's parent either out of anger or in that age-old ritualized spanking practice is humiliating, traumatic, physically painful, and frightening. Every day in my counseling practice I see the destructive legacy of physical punishment: Adults who are depressed, afraid to pursue life goals because of a deeply ingrained fear of making a mistake or making someone angry, and chronically anxious because of growing up in a constant state of fear that they could be hit at any time. I also see individuals who have become hardened, angry, and unable to trust in relationships. I believe that most parents who spank their kids are trying to be good parents. In fact, in times past you weren't doing your job as a parent if you weren't spanking your kids. Often parents are at the end of their rope, or they have no other ideas for disciplinary techniques that work. However, times are changing, and innumerable simple, practical, nonviolent parenting techniques now exist. Parenting books and magazines, mental health professionals, health and children's organizations, and professional associations now overwhelmingly reject spanking and are actively encouraging more effective, constructive, nonviolent alternatives. Most important, many parents are taking a stand and making the choice not to hit.

Section 43 must be repealed to end the abuse. But the law doesn't need to change in order for us to stop hitting now. Let's make the commitment to ourselves and our children to put an end to this outdated, damaging cultural legacy. Let's start today.
Social Worker Carole-Anne Vatcher is an individual and couple therapist in private practice in Toronto. She is a member of the Repeal 43 Committee.

Nov 29/98 Article in Ottawa Citizen Hitting Children must be outlawed

Today is National Child Day. This day commemorates the 1989 adoption of the United Nations Convention on the Rights of the Child. Our federal government has suggested that Canadians plan events to honour and celebrate the nation's children. I have a suggestion for the government.

One of the best - and least expensive - gifts our government could give Canadian children is to repeal Section 43 of the Criminal Code that allows corporal punishment of children for "correction." This section violates Article 19 of the UN Convention on the Rights of the Child, which requires signatories to protect children from all forms of violence, injury or abuse.

Section 43 has been in the Criminal code since 1892. It states that "every school teacher, 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".

Canadian courts have decided that "reasonable" force includes hitting children with straps, belts and other objects causing bruises, welts and abrasions. To maintain that these assaults on children are not violence simply ignores the facts. Canadians surely agree that striking an adult is a violent act. Why then are children, our most vulnerable citizens, not accorded the same protection against such violence?

The United Nations committee overseeing implementation of the Convention on the Rights of the Child recognizes this duty to protect children from all forms of violence and has therefore recommended an end to legal approval of corporal punishment. On June 1995, it specifically asked the Canadian government to review Section 43 in light of this recommendation.

Nevertheless, our current and former justice ministers claim to see no problem with Section 43. This attitude is held despite a 1995 review of corporal punishment, funded by the federal departments of Health and Justice, that found corporal punishment to be associated with increased levels of aggression and a predictor of delinquency, violence and crime in later life. It was also identified as a risk factor for child abuse.

The report recommended the repeal of Section 43. In addition, other government-sponsored reports and numerous agencies and individuals concerned with the welfare of children have urged repeal of this outdated section of the Criminal Code.

People who maintain that corporal punishment is not violence and believe it to be a necessary part of child-rearing appear to be unaware of the harmful potential of this form of discipline. Perhaps they are also unaware of the alternatives. That is why, along with repeal of Section 43, it is important that the government undertake a campaign to help parents become aware of these alternatives. As Penelope Leach, a psychologist and respected writer on child-rearing says: " It is time to start disciplining with our heads and our hearts rather than with our hands and belts."

A constitutional challenge to Section 43 will soon be filed on the basis that the section violates the fundamental human rights of children as guaranteed both by our Charter of Rights and Freedoms and by the United Nation s Convention on the Rights of the Child.

What better way to honour and celebrate the nation's children today than for our government to uphold our international commitments to protect children from violence by repealing Section 43 - rather than waiting to be forced to do so by the courts.
Ruth Miller, a health educator in Toronto, is a member of the Repeal 43 Committee

Nov 16/96 Repeal 43 Committee News Release Legal assaults on Canadian children continue despite Canada's ratification of the UN Convention on the Rights of the Child

The UN Convention on the Rights of the Child came into force in Canada in January 1992. Article 19 of the Convention requires signatories to take legislative measures to protect children from all forms of violence, injury or abuse.

Section 43 of our Criminal Code allows teachers, parents, and those standing in the place of parents to use "reasonable force" for the "correction" of children. Judicial decisions in the 1990s continue to permit Canadian children to be hit with hands, rulers and belts, and slapped, kicked and bruised in the name of "correction" because of section 43.

The UN Committee overseeing the Convention has clearly stated that legal approval of physical punishment of children is incompatible with the Convention and has recommended that it be prohibited. In June 1995, the UN Committee asked our government to review s. 43 in light of this recommendation. Our Minister of Justice apparently sees no problem with section 43 in spite of the UN Committee's recommendation and current judicial decisions.

"Legal approval of hitting children as a means of discipline legitimates violence against those most in need of legal protection", stated Corinne Robertshaw, Coordinator of the Repeal 43 Committee. "Violence is not a family value. This 1892 section of the Code is a dangerous, harmful and discriminatory legacy of the past. If we are truly serious about upholding fundamental human rights and reducing violence in the family and society, it must be repealed. We ask the Minister of Justice to show leadership on this issue."

Nov 14/95 Repeal 43 Committee News Release Repeal 43 Committee calls on government to end legal assaults on children. Corporal punishment contravenes the UN Convention

The Repeal 43 Committee again asks Canada to honour its commitment to the UN Convention on the Rights of the Child and commemorate National Child Day by repealing section 43 of the Criminal Code and launching an educational campaign to promote positive, non-violent methods of discipline.

Article 19 of the Convention requires signatories to protect children from all forms of violence, injury or abuse. The UN Committee overseeing the Convention recommends that physical punishment of children in the home and elsewhere be prohibited as incompatible with the Convention. In June/95, the UN Committee asked our government to review s. 43 of the Code in light of this recommendation.

In an April/94 brief to federal ministers, Corinne Robertshaw, lawyer and coordinator of the Repeal 43 Committee, cited judicial decisions showing that section 43, which permits teachers and parents to use "reasonable" force for "correction", allows children to be slapped, kicked, hit with straps, belts, sticks, and extension cords even where this causes bruises, welts and abrasions.

In recent talks in Windsor, Edmonton and Vancouver, she stated " In spite of numerous submissions and overwhelming evidence of the harmful effects of section 43, our government continues to put its legal seal of approval on violence as an acceptable method of teaching and training children."

By endorsing these legal assaults on children", she continued, "Canada is contravening one of the most fundamental articles of the Convention as well as its own Charter of Rights and Freedoms. It is time to end this relic of a bygone age."