High court to rule Friday on whether spanking violates rights of children

Canadian Press, Jim Brown, Sunday, January 25, 2004

OTTAWA --The Supreme Court of Canada is set to decide whether a parental smack on a childish bottom -- a disciplinary measure specifically permitted by federal law for more than a century -- is a violation of the Charter of Rights.
The high court has scheduled this Friday as judgment day in a constitutional challenge mounted by children's rights advocates who want the so-called spanking law struck down.

"We're looking forward to the decision,'' says lawyer Paul Schabas. "It's been a long battle.''

Schabas and co-counsel Cheryl Milne represent the Canadian Foundation for Children, Youth and the Law, which began its campaign to outlaw spanking four years ago.

"Hitting people breaks fundamental rights of respect for human dignity and physical integrity,'' they argued when the case finally reached the country's highest court last June.

"Children are people too.''

At issue is Section 43 of the Criminal Code, which in one form or another has been on the books since 1892.

It provides that parents, teachers and other caregivers cannot be found guilty of assault for physically correcting a child -- as long as the force they use is "reasonable.''

Many have in fact been convicted for going beyond what judges deemed to be reasonable. But opponents say as long as the law remains in force it's an invitation to excess.

"This case is about the right of children not to be hit, a right that in a modern, 21st century democracy should be unquestioned,'' Schabas told the high court during oral arguments.

He condemned Section 43 as discriminatory, a violation of children's security of the person and a legal green light for cruel and unusual punishment.
The federal Health Department has published brochures advising parents that spanking is not an effective means of discipline and ought to be avoided.
Lawyers for the Justice Department have balked at turning those who ignore the advice into criminals. They say education is a more effective tool than prosecution in most cases.

"The criminal law is a blunt instrument,'' federal lawyer Roslyn Levine told the court. "Changing the criminal law does not necessarily change attitudes.''
Levine also maintained that parents need a "certain limited autonomy'' in raising their children and argued the state should not interfere unless discipline crosses the line and becomes abuse.

She urged the nine judges to uphold the law, but invited them to lay down ground rules to guide lower courts.

For example, she noted, most experts agree spanking is unacceptable for children aged under two, or for teenagers.

Using implements other than the open hand, striking children on the face or head and leaving bruises or other lasting injuries should also be beyond the pale, Levine suggested.

Critics say judicial guidelines will do little to protect children at risk from abusive parents -- or from well-meaning ones who go too far in the heat of the moment.
Supporting the government in its defence of the law was the Coalition for Family Autonomy, a collection of conservative lobby groups, and the Ontario Teachers Federation.

The teachers say they don't favour corporal punishment, but they fear they could face assault charges merely for physically restraining an unruly student if the law is struck down.

The Ontario Coalition of Children's Aid Societies joined the Foundation for Children, Youth and the Law in challenging Section 43.

The law was upheld in July 2000 by Justice David McCombs of Ontario Superior Court, who said parents and teachers must have some leeway in carrying out their duties.

The Ontario Court of Appeal unanimously agreed in January of last year that the law was constitutional, but cautioned that it must be read as allowing only "strictly limited force.''

The Supreme Court ruling will be the final legal word.

 Copyright 2004 Canadian Press