[ql06] CRIM: SCC to abolish s.43 of Criminal Code?
- From: "Kenneth Campbell [QL06]" <2kc16@xxxxxxxxxxxxxxxx>
- To: <ql06@xxxxxxxxxxxxx>
- Date: Sat, 24 Jan 2004 16:28:46 -0500
Spanking decision may hit home
Supreme Court to rule Friday on whether to abolish controversial section
of Criminal Code Critics say law too vague
JOHN GODDARD
TORONTO STAR
Sat. Jan. 24, 2004
The law says it is wrong for a man to hit a woman, but okay for a parent
to hit a child.
A man who strikes a woman in a family dispute meets zero tolerance from
police, but a parent who strikes a child for misbehaving is seen as
acting properly.
Some people say that's crazy. If Canadian law protects women from
assault of any kind, why does it deny the same protection to children,
who are smaller and more vulnerable? The reason, other people say, is
that hitting a wife in anger is a lot different from spanking a child.
"I think the overall problem about this issue is that it is such a
deeply personal one," says Peter Newell, co-ordinator of global lobby
group End Physical Punishment of Children, based in London, England.
"Most people were hit as children," he said by phone recently. "Most
parents have also hit their own children. That makes it difficult for
people to come to a logical conclusion — that children and adults be
protected equally."
On Friday, the Supreme Court of Canada is to rule on the question.
Specifically, the court is to decide whether to abolish Section 43 of
the Criminal Code, which offers parents and schoolteachers legal
justification for physically disciplining a child.
A Toronto group called the Foundation for Children, Youth and the Law
argued in June that the statute violates a child's constitutional
rights, including rights to equality and security of person.
In response, federal lawyers agreed that spanking is bad parenting —
"It's never okay to spank children" — but said that Section 43 rightly
upholds a parent's authority to raise a child without undue government
interference. It would be absurd, government lawyers said, to expose
parents to the threat of criminal prosecution "for every trivial slap or
spanking."
So far, 12 countries — mostly in Europe — have changed laws to prohibit
parents from striking their children.
In October, a United Nations committee ruled that Canadian law violates
the U.N. Convention on the Rights of the Child, and that Canada should
"prohibit all forms of violence against children, however light." The
committee specifically called for abolishing Section 43.
But if the Supreme Court does strike down the section, a lot of parents
are in for a surprise. Spanking would be no different in law from any
other common assault, a criminal act punishable by imprisonment for up
to five years.
* * *
In Canadian law, any unwelcome touch is considered assault. Any
unwelcome force by one person against another, no matter how mild, is
illegal.
Historically, various exemptions have applied.
Under English common law, masters could once legally strike servants and
husbands could, in moderation, beat their wives. After the codification
of Canadian criminal law in 1892, employers could still legally hit
apprentices, and prison wardens were justified in flogging inmates with
a cat-o'-nine-tails.
Only two exceptions still remain. The law continues to offer a legal
defence to ship commanders who use force against sailors to maintain
order. Similarly, Section 43 of the Criminal Code offers a defence to
parents and schoolteachers who hit a child, provided that the purpose is
to correct the child's behaviour and that "reasonable" force is used.
The full text 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."
Critics view Section 43 as a relic from another age. "Culturally
anachronistic and historically outdated," Italy's top court called a
similar Italian statute in 1996, when declaring all physical punishment
of children in Italy illegal.
The word "reasonable" draws particular criticism. Even lower-court
judges have complained of loose wording.
In a 1996 child assault case, Mr. Justice Ian MacDonnell of the Ontario
Court of Justice (provincial division) complained of "the elusive nature
of the standard of reasonableness." Two years later, Mr. Justice Brian
Weagant of the same court cited "the wide variety of judicial
interpretations" of Section 43, and said the law "begs for legislative
reform."
Anne McGillivray, a law professor at the University of Manitoba, said in
a telephone interview that the vagueness makes Section 43 "a legal
lottery." The interpretation of "reasonable under the circumstances" is
subject to what she called "the judicial childhood test," meaning
subject to a judge's own childhood experience.
McGillivray cited the case of an 8-year-old Winnipeg boy who opened a
pack of sunflower seeds after his father told him not to. The father
kicked the boy several times and hit him across the shoulders, leaving a
mark. The father was convicted of assault causing bodily harm and
sentenced to anger management counselling. He appealed to the Manitoba
Court of Appeal and, in 1994, was acquitted.
"The discipline administered to the boy in question in these
proceedings," said the appeal judge, "was mild indeed compared to the
discipline I received in my home. There were times when I thought my
parents were too strict, but in retrospect I am glad that my parents
were not subjected to prosecution or persecution for attempting to keep
the children in my family in line."
Because of the ruling, McGillivray said, fewer child-abuse cases are
coming to court in Manitoba. To get a conviction, prosecutors know they
must prove that parental force was more severe than punching and
kicking.
Similarly, the Toronto-based Repeal 43 Committee, the country's foremost
lobby group on the issue, says parents are successfully invoking Section
43 as a defence for child abuse. The committee compiled a list of 22
such precedents set between 1990-2001.
In Newfoundland two years ago, a father who struck his 14-year-old
daughter with a belt, leaving welts and bruises on her legs, was
acquitted under Section 43. In Ontario two years ago, a father who
struck his 11-year-old son with a belt leaving a buckle-shaped mark on
his thigh was similarly acquitted.
In Saskatchewan in 1987, in a case McGillivray cited, a man and a woman
who stripped their two nieces, 13 and 14, to their underwear, tied their
hands to a basement clothesline and strapped them across their buttocks,
were judged to be carrying out "corrective" and "reasonable" punishment.
"We see (Section 43) used (in cases where) parents not merely spank
their children, they use weapons," Paul Schabas, lawyer for the
Foundation for Children, Youth and the Law, told the Supreme Court
judges. "They use implements on children. They cause injury. They strip
children and hurt them."
Apart from the vagueness of "reasonable," children's advocates said in
interviews, the law wrongly puts its seal of approval on spanking.
"Parents interpret Section 43 not as a defence against assault but as a
general permission to use force against children," said Alfred Mamo,
lawyer for the Children's Aid Society in the high-profile Church of God
case, in which seven children were found to be in need of protection
last March after being punished with objects by their parents.
"Section 43 sends parents and teachers the message that it's okay to hit
children, that it's `justified,' which in law means `morally correct'
and `rightful,'" said Corinne Robertshaw, founder and national
co-ordinator of the Repeal 43 Committee. "We say there is a connection
between giving that message and the fact that a lot of children are
injured during the course of corporal punishment."
Sometimes, studies have found, parents don't realize how hard they are
hitting. And sometimes a child can build tolerance to pain so that the
parent must hit harder to get results. Physical punishment, in such
cases, can result in abuse.
"Most cases of child physical abuse occur during episodes of physical
punishment," says a Joint Statement on Physical Punishment of Children
and Youth, signed by more than 70 Canadian health and child care
organizations, including Toronto Public Health.
"Physicians should actively counsel parents about discipline," the
Canadian Pediatric Society said in a new policy directive yesterday,
"and should strongly discourage the use of spanking."
For people coming late to the Supreme Court of Canada case, often the
biggest surprise is that Ottawa, while defending Section 43, also takes
an anti-spanking position.
"Personally and professionally, not one of the attorney-general's
witnesses advocates the use of physical discipline," Roslyn Levine, the
lead federal lawyer in the case, said in her written brief to the high
court. Among professionals in the field, there is "stunning agreement"
that spanking is an objectionable method of child-rearing, she also
said.
Levine did take exception to some of the anti-spanking arguments raised.
"Spanking is not abuse," she said. And there is no evidence, she also
said, "that the use of physical punishment causes child abuse." But
Levine explicitly endorsed Health Canada's position: "It's never okay to
spank children. It's a bad idea and it doesn't work."
For the federal government, the case is not about whether spanking is
good or bad. Rather, for the government, the case is about the need to
protect parents and schoolteachers from unnecessary interference from
the criminal justice system.
If any unwelcome force, no matter how mild, is a criminal act, Levine
argued, then the Section 43 defence is necessary. It protects parents
from criminal prosecution for administering what in Canada is a broadly
accepted child-discipline method.
"(Abolishing Section 43) would be opening the doors to invasion from the
state," said Gwen Landolt, national vice-president of REAL Women. The
group has intervener status in the court case as one of four
self-defined conservative organizations collectively calling themselves
the Coalition for Family Autonomy.
"If somebody didn't like you and reported that you spanked your
children, your children were crying and screaming, you would have to be
investigated," Landolt said in an interview. "There would be a legal
obligation to investigate you and every family would be vulnerable."
In court, Levine made the same point.
"The criminal law is a blunt instrument in the family context," the
government lawyer said. (She did not argue the case of schoolteachers).
"Parents need the ability, without fear of criminal sanction, to
exercise ... their responsibilities."
Canadian Teachers Federation lawyer Allan O'Brien said the Section 43
defence is needed for another reason. If any unwelcome force is a
criminal act, he argued, then a teacher "physically removing a student
from a classroom by the arm," would otherwise be subject to criminal
prosecution.
One Supreme Court judge gently mocked the suggestion.
"Well, there is an offence in the Criminal Code for uttering threats,"
Madam Justice Louise Arbour said. "I do not know of any floodgates of
prosecutions for uttering threats." A "principle of restraint" operates
in criminal law enforcement, she said, meaning that fear of arrest for
restraining a student would be taking the law too literally.
Ultimately, both main parties to the Supreme Court case agree on two
fundamental issues. Both agree that spanking is bad parenting. And both
agree that to criminally prosecute a parent or teacher for spanking
would be wrong.
Disagreement comes only over predications as to what might happen if
Section 43 were abolished.
The children's advocates argue that scrapping Section 43 would send a
clear message to parents and teachers: "It is never okay to spank a
child," a point on which all main parties agree.
The federal government argues that getting rid of Section 43 would
expose widely accepted family child discipline practices to criminal
prosecution, something everybody agrees would be wrong.
The solution, say children's advocates, is to send a clear message and
enact other measures to prevent criminal prosecution.
"Prosecution is not the way to go," Robertshaw of the Repeal 43
Committee said in an interview. But if Section 43 were abolished, she
said, trivial acts of spanking would no more be prosecuted than
motorists are fined for breaking the speed limit by 5 km/h.
In cases of more than trivial significance, "the best way to handle them
would be for the Children's Aid Society to get involved and to help the
parents understand that disciplining a child (by spanking) is
potentially harmful," Robertshaw said.
Michael Menear, a lawyer in London, Ont., who acted for the father in
the Church of God case, said he trusts parents to use reasonable force
on children more than he trusts authorities to deal reasonably with
parents. The Ontario Association of Children's Aid Societies, he pointed
out, is actively anti-spanking.
"I think there is a fairly activist mentality among social workers, more
so than police, to right the wrongs of the world, to social engineer, to
tell parents they know more about how to parent their kids than the
parents themselves," Menear said at his London office.
"That (activism) is going to break out in some form or another at some
time. The question is whether the law reins that in (through Section
43), or whether it is allowed to express itself."
Academic researchers said prosecution of parents for mistreating their
children has not increased in countries that have prohibited spanking.
Sweden was the first country to ban spanking in 1979. Finland, Denmark
and Norway followed, along with Austria in 1989, then Cyprus, Italy,
Latvia, Croatia, Germany (2000), Israel (2000) and recently Iceland.
"In Sweden, it was never the idea to prosecute," said Joan Durant, head
of family studies at the University of Manitoba and an expert witness
for the Foundation for Children, Youth and the Law.
"The idea was to send a clear message and to change attitudes. Once in a
while, a (Swedish) parent might still make a mistake and spank a child,
but that's how it is viewed — as a mistake."
Susan Bitensky, a Michigan State University law professor and a leading
international scholar in the field, holds a similar view.
"The experience in all of the countries that have in one way or another
banned corporal punishment of children," she said, "is that parents or
other adults have not been hauled into court and prosecuted. There has
not been a breakdown of the parent-child relationship. The criminal
courts have not been overloaded. In all of those countries, the basic
approach has been prosecutorial restraint."
In the Supreme Court of Canada, three main outcomes are possible.
The court could uphold Section 43, retaining the status quo. The court
could abolish the section and recommend guidelines on how police and
prosecutors might deal with child assault as discipline.
Or, guided by a lower-court finding, the judges could recommend to
Parliament how to rewrite Section 43 to permit only certain types of
spanks and hits to certain body parts.
One thing is certain: Until Section 43 is abolished, criticism will
continue from the UN committee monitoring the Convention on the Rights
of the Child. "The Committee is deeply concerned that (Canada) ... has
taken no action to remove Section 43 of the Criminal Code," it wrote to
Canada in October.
The committee is systematically taking up the spanking issue with all
other signatories to the convention as well.
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