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Top court slaps limits on spanking

By Meredith Macleod
The Hamilton Spectator

January 31, 2004

The Supreme Court of Canada upheld the so-called "spanking law" yesterday, but set limits on what is considered reasonable when physically punishing a child.

Age limits are also defined in the ruling and, for the first time, parents who spank their infants or teenagers could face a criminal charge.

Child welfare advocates had pushed for overturning Section 43 of the Criminal Code which allows parents, caregivers and teachers to use "reasonable force" in correcting behaviour. Critics of the law argued it is an open invitation to abusing and assaulting children.

They also said the law violates a child's right to security of person, the right not to be subjected to "cruel and unusual punishment" and the right to equality under the law.

In its 6-3 ruling, the court rejected the notion that spanking violates the rights of children. But it also took the step of mapping out appropriate punishment.

It would not be acceptable to spank children younger than two or older than 12, for example. Nor would it be reasonable to use an instrument such as a belt or wooden stick or to leave marks. The court also indicated that spanking should occur only on clothed buttocks or extremities, never the face or head.

The court also ruled that teachers do not have the right to spank children as punishment.

The Canadian Teachers' Federation opposed changing the law, saying it could create a situation where teachers could be charged for intervening in a fight or removing an unruly child from a classroom. The federal government also stood behind the provision, saying parents should have some discretion in punishment unless it crosses the line to abuse.

The court said applying the Criminal Code to spanking would subject children to the greater harm of broken families.

Local children's aid society officials said the ruling sends out the wrong message.

"Why don't we have the authority to spank another adult? Because it constitutes assault," said Dominic Verticchio, executive director of the Children's Aid Society in Hamilton.

What can begin as simple spanking can escalate into more serious forms of punishment if it doesn't have the desired effect, he said.

Rocco Gizzarelli, services director with the Catholic Children's Aid Society of Hamilton, said the court ruling could actually muddy the waters for parents and child welfare agencies.

"This could have a profound impact on people who think they have the right to do this. It could make it more difficult to teach people other forms of punishment. And parents who refrain from physical discipline may now think they have the right to do it."

But conservative parenting groups have argued throughout the spanking debate that parents deserve protection too.

"The intent of the decision is that parents are to be respected and that they are the best atmosphere for raising children," said Mike Martens, spokesperson for Focus on the Family, one of the principal groups arguing to uphold the law.

He said parents should be able to use a wide spectrum of tools to discipline their children.

"We do not advocate using spanking as a primary or even regular disciplinary tool but it can be done in a context in which the child is affirmed and can benefit from it."

Gary Direnfeld wholeheartedly disagrees. A Dundas-based social worker and child development expert who counsels parents, Direnfeld says it is never healthy to spank a child.

He says spanking instills anger and shame. It can make kids withdraw or harbour resentment. It teaches kids that it's OK to use violence to solve conflicts. It trains children to avoid getting caught doing wrong rather than to not do wrong in the first place.

"There is no teaching opportunity in spanking. I think it's uninformed parenting."

The majority of Canadian parents still support the right to spank because they fear being left with no disciplinary tools, says Direnfeld. But he says there are many more effective means to set limits. He advises parents to call the parenting centre at the YWCA for information. Direnfeld's book, Raising Kids Without Raising Cain, is also available for free reading on his website, www.yoursocialworker.com. 

Under the Criminal Code, any force used against another person without consent is considered assault. Exemptions in the last century included the right for husbands to physically punish wives, employers to beat servants, masters to hit apprentices and prison wardens to whip convicts. The only remaining exemption is the right for parents to spank their children.

Just as we look back on those past provisions as morally offensive, we will look back on today's ruling with scorn, said Lenore Lukasik-Foss, director of Hamilton's Sexual Assault Centre. "We're talking about a group with so little power. Children are already vulnerable and then we allow this. It's worrisome."

Yet kids seem unfazed.

An 11-year-old Hamilton boy said parents should be allowed to spank their children "as long as it's not hard."

Roslyn Levine, a lawyer for the federal justice department, called the court decision a balance between the rights of children and parents and was especially happy with the guidance offered to lower-court judges.