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Strike Laws, Not Children By Heather-jane Robertson

DURING THE summer of 1997, Canadians followed the unusual case of an American who was vacationing in London, Ontario, and publicly spanked his 5-year-old daughter's bare buttocks with enough force that a witness complained to the police. According to the girl's father, David Peterson, he had "placed" his daughter across the trunk of his car because she was successfully resisting his attempts to spank her inside the car. He was punishing her, he said, for intentionally slamming the car door on her little brother's fingers.

Peterson was charged with assault, strip-searched, and jailed for a day until his wife, a first-grade teacher, posted a cash bond. After the evidence was presented, Judge John Menzies dismissed the charge of assault against Peterson, stating that his court was "not a court of social justice. It is the law that a parent may physically discipline a child." The judge went on to describe the Petersons as "responsible, reasonable, and caring parents." Subsequently, the "parents' rights" lobby cheered that they had been vindicated and demanded that a national apology be extended to the Petersons. The "children's rights" lobby retorted that the judge's decision proved, once and for all, that the Canadian law fails to protect children from assault.

A shaken Mr. Peterson, relieved to be heading home to Illinois, told the press, "I think a large public debate sort of landed on us. We were just passing through, and we stepped into it."1

Judge Menzies based his decision on Section 43 of the Criminal Code of Canada, which has remained unchanged since 1892: "Every school teacher, parent or person standing in place of a parent is justified in using force by way of correction toward a pupil or a child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances."

Since the turn of the century (the last one), parents and teachers have successfully invoked Section 43 hundreds of times as a defense against the charge of assault. Defense lawyers argue that the adult's use of force was "reasonable under the circumstances," which is the standard set by Section 43. Every decision involving Section 43 has therefore been colored by the particularities of the situation and subject to a single judge's interpretation of "reasonable." While appeals could challenge the appropriateness of the court's ruling, the law itself could not be disputed. Now, however, the law itself is on trial.

When the Canadian Charter of Rights and Freedoms was proclaimed in 1982, the federal government established an independent fund to enable citizens to challenge laws that were seen to "offend" the charter. In early 1999, a coalition of child advocacy groups calling itself the Canadian Foundation for Children, Youth, and the Law used this route to obtain leave to argue that Section 43 of the Criminal Code was inconsistent with the charter and should therefore be struck down. Organizations that could persuade the court that they had a legitimate interest in the outcome of the decision have now submitted their written arguments to Justice David McCombs of the Ontario Superior Court. His judgment must side with one of two very different points of view.

The government of Canada, as it has when other federal statutes have been challenged, takes the position that Section 43 is constitutionally and practically sound and should be retained. The federal government has been joined by the Canadian Teachers' Federation (CTF), which has become a vocal advocate of the existing law. While the CTF has adopted policy that opposes the use of corporal punishment in schools, it warns that the repeal of Section 43 would quickly lead to chaos in the classroom.

Members of parents' rights groups, who perhaps believe that anarchy already rules in schools, argue for the retention of Section 43 for different reasons. The Coalition for Family Autonomy, organized specifically to oppose the repeal of Section 43, is outraged by the idea of the state's gaining yet another excuse to interfere in family life. The coalition's position is that it is up to parents, not the state, to decide how children should be treated. Teachers thus find themselves in an uncomfortable (albeit temporary) liaison with certain family values extremists, some of whom encourage their members/followers to instill obedience in "willful" children by hitting them regularly, beginning at the age of 15 months.2

The pro-repeal activists who make up the Canadian Foundation for Children, Youth, and the Law view Section 43 as blatantly protecting the rights of the powerful to forcibly coerce and control the least powerful. They claim that such a statute is -- or should be -- a shameful anachronism in a country that positions itself as an international advocate for children's rights. After all, the rights of males, masters, and prison guards to strike their wives, apprentices, and prisoners are no longer established in Canadian law. Even the rights of animals, wild and domestic, to be free from inflicted pain and cruelty have become entrenched. Children are the only class of individuals who are subject to the use of force "for purposes of correction."

The foundation argues that Section 43 violates three sections of the Charter of Rights and Freedoms: it permits children to be physically assaulted, contrary to Section 7; it permits corporal and therefore "cruel and unusual" punishment, contrary to Section 12; and it discriminates against children, contrary to Section 15. Although Section 1 of the Charter permits exceptions to its provisions that can be "reasonably justified in a free and democratic country," the foundation holds that no such justification exists. It points to three decades of Canadian reports, many of them commissioned by governments themselves, that have singled out Section 43 as an affront to the legal and moral integrity of the criminal code. The foundation contends that, as a signatory to the U.N. Convention on the Rights of the Child, Canada is obliged to make the physical punishment of children an offense.

The foundation cites six countries, most of them Scandinavian, that are combining legal reform with parental education to change public opinion and private conduct when it comes to striking children. These governments correctly assume that, as the public becomes better informed about the well-established link between the physical punishment of children and heightened aggression among children and youths, attitudes toward disciplining children will change. Parents do want to change, it turns out, and although most of them spank their children at least occasionally, most of them also feel guilty about it. (As an aside, calling the act of striking a child "spanking" infuriates some children's advocates. We don't call hitting Granny "spanking" her; we call it assault. Women who are hit are called "abused women," not spanked women. Good point.)

But the crux of the foundation's case relies on the shock value of reminding the court how Section 43 has been interpreted by judges with a unique take on what constitutes "reasonable force." In 1993 a Quebec judge found that even though a teacher had grabbed a 15-year-old boy by the hair and banged his head onto his desk for talking in class, Section 43 prohibited only the "excessive" use of force, not its "disgraceful" use. A Manitoba stepfather who was arguing with his stepson over sunflower seeds kicked the child down the stairs and pulled a clump of hair out of his head. An appeals court judge ruled in 1993 that the application of Section 43 exonerated the stepfather, who had demonstrated restraint and "reason" by removing his shoe before he began kicking.

According to Section 43's critics, decisions such as these normalize the kind of violence against children that all too easily becomes pathological. Physical abuse is second only to sudden infant death syndrome as the leading cause of death among Canadian children between the ages of 1 and 6 months, and it is the leading cause of death among children aged 6 to 12 months. More than two-thirds of the children murdered in Canada during the 1990s were killed by a parent.

All of this is certainly appalling, the other side agrees, but striking down Section 43 is not the way to educate the public, to deal with parents or teachers who cannot control their rage, or to remediate judges who get sentimental feelings about the strap. As anxiety about school violence spirals, sending any message that can be interpreted as restricting teachers' ability to control students could further undermine public confidence in the safety of schools -- perhaps for good reason. It is all very well for outsiders to imagine that sweet persuasion will always break up disputes in the cafeteria, but the real world tells a different story. Repealing Section 43 would actually endanger children rather then protect them, because it would tie the hands of responsible adults who understand that managing excitable, immature, or even dangerous youths sometimes requires physical restraint.

Those opposing repeal also point out that because Section 43 permits only the reasonable use of force, it does not shield true child abuse. Responsible teachers use appropriate "force," such as a restraining hand on the shoulder or an escort to the principal's office, thousands of times every day not because the law permits it, but because common sense dictates it. Perhaps too many parents or teachers are acquitted under Section 43 for actions that exceed "reasonableness" in the minds of most adults, but the fact that some judges make poor decisions is no reason to strike down the law. And finally, interveners claim, Section 43 wisely allows police officers and judges the discretion to apply common sense and to refuse to proceed when complaints are trivial or malicious.

Without Section 43, charges of assault could be laid whenever a child or student is touched without permission, irrespective of the circumstances. Teachers could no longer break up schoolyard fights, put their arms around little children running in the halls, or even defend themselves from physical attacks. The trauma of criminal charges would irreparably damage careers and reputations.

Nonsense, reply the pro-repealers, who call these projections alarmist and absurd. Section 43 deals only with the use of force as punishment -- as a means of "correction." Parents and teachers who use appropriate force to prevent harm to themselves or others or to protect property are amply covered by other sections of the criminal code. Teachers and their lawyers have used Section 43 because the statute is convenient and the results favorable, not because it is their only available defense.

These assurances sound naive to educators, just as the call to maintain the status quo "for the good of the children" rings hollow to the reformers. There is little love lost on either side of this debate. It hasn't helped that the justice minister, whose department is leading the fight to keep Section 43, has just introduced legislation that would markedly stiffen penalties for animal abuse. She explained to the media that there is "a growing body of scientific evidence that suggests animal abuse is a warning sign for potential further violence and criminality."3 The forces opposed to Section 43 claim that pets now have more rights than children.

Legal arguments have just concluded. Mr. Justice McComb is not expected to render his decision for several months, which happens to coincide with the tourist season. If a certain Mr. Peterson from Illinois decides to return to Canada this summer, he may experience a sense of dèjá vu. Whichever way the court rules, the debate over Section 43 will not be over.

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Last updated 10 March 2000
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