The federal government has no immediate plans to review section 43 of the Criminal Code, despite renewed calls to repeal Canada’s so-called spanking law.
The Code states “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.”
In a landmark case, the Supreme Court of Canada upheld the law in 2004 in a 6-3 decision.
The court was clear that there are limitations to the use of force: it cannot involve children under two or over 12 years of age, or a disabled child of any age; it cannot be “degrading, inhuman or harmful” or include the use of objects like belts or rulers; it cannot involve “slaps or blows to the head.”
“These types of punishment, we may conclude, will not be reasonable,” the majority of judges agreed.
Spanking that is “only minor corrective force of a transitory and trifling nature” is allowed, the court ruled, concluding that the provision does not violate the Charter of Rights and Freedoms because it does not infringe a child’s rights to security of the person or a child’s right to equality, and it does not constitute cruel and unusual treatment or punishment.
The B.C. group Corinne’s Quest hopes a new regime in Canada will spell the end of section 43.
“We’re trying to live in a country we say is non-violent and yet we’re permitting assault on children legally, and that doesn’t make sense to me,” chair Kathy Lynn told Yahoo Canada News on Thursday.
“We believe it is actually a human rights issue,” Lynn said.
The group has contacted Minister of Families, Children and Social Development Jean-Yves Duclos, as well as Justice Minister Jody Wilson-Raybould and the Minister for Youth — which is Prime Minister Justin Trudeau — calling for Canada to join countries like Ireland, New Zealand, Venezuela, Norway and 43 others in banning all corporal punishment of children.
“We have over 30 years of research that show the hitting of children carries risk factors, and they can carry into adulthood,” Lynn said.
Corinne’s Quest and other campaigns have the backing of the Canadian Bar Association (CBA).
Last year the CBA wrote to then prime minister Stephen Harper and his justice and health ministers, and called on the government to act on recommendations it received in 2012 from the UN committee that oversees the Convention on the Rights of the Child.
The committee’s report “contained serious criticisms of Canada’s failure to more fully implement the Convention…. It also expressed grave concern that s. 43 of the Criminal Code continues to condone corporal punishment of children,” wrote the CBA, which says it represents 37,500 lawyers and legal scholars.
Earlier this year, the Truth and Reconciliation Commission included repealing section 43 in its “calls to action.”
Several attempts to strike down section 43 have been proposed and defeated in Parliament.
The most recent was a Senate bill introduced by Liberal Sen. Céline Hervieux-Payette in October 2013.
“We legitimized the use of violence in child rearing because, in the absence of science, we relied on beliefs and empirical data that, for some, date back to the Old Testament,” Hervieux-Payette said in her speech to the Senate last year.
The Canadian Medical Association, which represents 80,000 doctors and medical professionals, threw its support behind Bill S-206, which got through second reading in the Senate and was referred to committee, where it died.
Hervieux-Payette, who says she was only ever spanked once, when she was three, and it stuck with her, plans to re-table the bill before Christmas.
“We have worked quite extensively over the last two years to find more evidence of the catastrophic effects on children who are repeatedly suffering physical correction,” she told Yahoo Canada News in an interview.
It will be her seventh attempt to get the legislation passed since 2005, but she thinks it will succeed this time, thanks in part to revelations from the inquiry into Native residential schools of harms done to children who were routinely beaten.
Whether a Liberal government will revisit the issue is unclear.
A spokesman for newly appointed Wilson-Raybould declined to say whether there were plans to review or repeal section 43.
“At this point, we can’t speculate on potential legislative or policy changes on this issue,” Ian McLeod said in an email Wednesday to Yahoo Canada News.
Canada’s Department of Justice says the law protects parents, caregivers and teachers from prosecution over using “force to respond to a child's behaviour.”
“However,” the ministry’s website says, “section 43 is not a defence for every action a parent, teacher or caregiver may take. A parent, teacher or caregiver may only use reasonable force. And they may only use that reasonable force when it is connected to their duties to the child. Section 43 cannot be used as a defence, for example, when a child has been harmed or abused.
“The use of force to correct a child is only allowed to help the child learn and can never be used in anger.”