Top court sets limits on spanking

By KIRK MAKIN
From Saturday's Globe and Mail

Parents can spank or use force on their children provided it is minimal and
not the product of frustration or rage, the Supreme Court of Canada ruled
yesterday.

While the majority of judges were unwilling to prohibit the use of force
altogether, they declared corporal punishment off-limits for children under
the age of 2 and for teenagers. And they outlawed the use of objects such
as rulers or belts, as well as slaps or blows to the head. Teachers can no
longer use any form of corporal punishment, the court added, although they
may restrain pupils to gain compliance with their instructions.

The judgment went a long way toward meeting the concerns of critics of
spanking, while at the same time leaving intact a Criminal Code defence
that can be used by parents or teachers charged with assault who establish
they used "reasonable force" on a child.

Chief Justice Beverley McLachlin said the defence will apply only in cases
of "sober, reasoned uses of force that address the actual behaviour of
the child and are designed to restrain, control or express some symbolic
disapproval of his or her behaviour. Degrading, inhuman or harmful conduct
is not protected."

Chief Justice McLachlin said that had the court foreclosed the defence
altogether, teachers could potentially be dragged off to jail and parents
forced into the criminal justice system, "with its attendant rupture
of the family setting."

Opponents of spanking had argued that any exemption is an open invitation
to assault and blatantly discriminates against children. They expressed
disappointment yesterday that the court did not go all the way. "If
they were going to reduce the defence to these limits, one has to ask why
they didn't just strike it down," said lawyer Paul Schabas, who
represented the Canadian Foundation for Children, Youth and the Law in the
case.

Mr. Schabas speculated that the judges may have been worried that striking
down the law would precipitate a renewed attack on their judicial activism.
"Today is a sad day for child rights, and we are extremely
disappointed that spanking is not regarded as abuse," said Rita
Karakas, executive director of Save the Children Canada. "Children are
routinely physically abused in almost all societies, which has come to be
regarded as an acceptable response to a child's behaviour."

Her view was shared by two judges, Madam Justice Louise Arbour and Madam
Justice Marie Deschamps, who said the exemption is too broad to protect
such a vulnerable group. In another split, a member of the majority, Mr.
Justice Ian Binnie, said the exemption should apply to parents, but not to
teachers. "The logic for keeping criminal sanctions out of the schools
is much less compelling than for keeping them out of the home," he
said.

Queen's University Professor Nicholas Bala, an expert witness who testified
for the federal government, said the court majority carefully avoided
endorsing or advocating the use of corporal punishment. "I think the
majority correctly recognized that parents and teachers need to have a
certain degree of discretion," he said. "We don't want the state 
particularly criminal law to be intruding into the family in an overly
intrusive way."

The constitutional challenge alleged that the exemption under the Criminal
Code charge of assault allows children to be harmed in a way that adults
cannot be. The court heard social science evidence showing that physical
punishment produces no beneficial outcomes for children apart from
short-term compliance.

During the appeal, Mr. Schabas cited several assault acquittals in recent
years that were based on the vague defence, including a man who bound his
16-year-old sister-in-law naked to a post while "babysitting" her
and then struck her 10 to 12 times with a wooden paddle.

Ranged against the challengers were teachers and the Department of Justice,
arguing that judicious use of corporal punishment can play an important
role in the school setting and in the home. They said parents can currently
slap lightly or move an erring child, but no more than that.

Yesterday, Chief Justice McLachlin said the exemption is based not on a
devalued view of a child's worth, but in a concern that charging parents
with assault can ruin lives and break up families  "a burden that in
large part would be borne by children and outweigh any benefit derived from
applying the criminal process."

While children need a safe environment, she said, they must also depend on
parents and teachers for guidance and discipline, to protect them from harm
and to promote their healthy development within society. "The force
must have been intended to be for educative or corrective purposes,
relating to restraining, controlling or expressing disapproval of the
actual behaviour of a child capable of benefiting from the
correction," Chief Justice McLachlin said.



--- GoldED/W32 3.0.1