Anti-Spanking Extremists Turn Up The Heat
By Charles W. Moore

1999 Charles W. Moore
The war against the family heated up a few more degrees with the Quebec's Human Rights Commission's Feb. 10 recommendation that the Quebec government lobby Ottawa to repeal Section 43 of the Criminal Code, which permits the use of "reasonable force" in the corporal punishment of children.

Quebec's HRC thus joins a small but loud minority of activist advocates who believe that NO amount of force by way of corporal correction is "reasonable." Last November 2, a Toronto-based advocacy group, the Canadian Foundation for Children, Youth and the Law, filed an application with an Ontario court asking that Section 43 be declared unconstitutional, alleging that the law violates the ban on cruel and unusual punishment in the Charter of Rights and Freedoms.

In 1995, Health Canada’s Children’s Bureau spent $30,000 to fund a conference on the repeal of S. 43. A whopping 56 people attended -- nine of whom were staff from the federal Health and Justice Departments. This conference was organized and run by a 48-member Ottawa group called The Canadian Coalition for the Rights of Children, chaired by Senator Landon Pearson. One presenter was Corinne Robertshaw, spokesperson for the nine-member, Toronto-based “Repeal 43 Committee.” The thinly-attended conference recommended (surprise!) repeal of S. 43, either by law reform or Supreme Court challenge.

Section 43 provides 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."

It should be noted that Section 43 does not authorize child abuse, and specifically limits physical discipline to what is reasonable.

Back in 1976, a Commons Standing Committee concluded that S. 43 might imply tolerance of child-abuse, and in 1984, the Law Reform Commission recommended that S. 43 be repealed for teachers but not for parents.

The Commission said it wanted to prevent the intrusion of law enforcement into the privacy of the home "for any trivial slap or spanking." Most Canadians think that’s obvious common sense. While only 21 percent of Canadian parents corporally punish their children, a 1995 Toronto Star poll found that, by a ratio of almost 6 to 1, people said spanking was acceptable as discipline in certain situations. So did 73 percent of respondents to a 1995 Canadian Living poll. Over 80 per cent of the respondents to an informal CTV Sunday Report poll last year supported retention of Section 43. Even on the anti-spanking Family Education Network Web page, of 10,944 (self-selected) poll respondents (13/2/99), 77 percent favoured spanking as a means of discipline, with only 20 percent opposed.

The present law allows police and judges discretion to evaluate whether or not a parent's disciplinary behavior has exceeded the boundaries laid down in S 43. Ergo: Spanking is legal but violent spanking isn't. That seems perfectly reasonable to most people, but not to ideological zealots who seek to ban any form or degree of corporal punishment, and who have succeeded in that quest in six countries so far: Italy, Sweden, Finland, Norway, Denmark and Austria.

The Canadian Foundation for Children, Youth and the Law's Iegal challenge, which incidentally is funded by a $45,000 grant from the Federal Court Challenges program, is purportedly to "protect children who are otherwise vulnerable to physical abuse."

This is patent hogwash and smokescreening. Excessively violent and neglectful parents who abuse their children are already dealt with under Section 26 of the Criminal Code: "Everyone who is authorized by law to use force is criminally responsible for excess thereof according to the nature and quality of the act that constitutes the excess." No statutory reform is necessary, and the activists' campaign is a shameful waste of court time and taxpayers money.

According to Bruce Clemenger, national affairs director for the Evangelical Fellowship of Canada, if there is a problem with interpretation and application of S 43, "What may be needed is a better definition of reasonable forces and holding judges who apply the law poorly accountable."

Ultimately, this is a philosophical dialectic, with no clear-cut science backing either side. Two studies on corporal punishment published by an American Medical Association journal last year contradicted each other: one indicating that spanking increases incidents of misbehavior, the other concluding that spanking either lowers or leaves unaffected children's aggression levels.

"This is a matter of social policy and the courts are a terrible place to decide this issue," Toronto Liberal MP John MacKay told ChristianWeek, adding that the anti-spanking legal challenge is a "Kalfkaesque experiment" and an "encroachment into matters of the family."

© Copyright 1999 Charles W. Moore
All Rughts Reserved

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