The Media’s Response
The Globe and Mail commented on the Court’s decision in the Foundation case:
In upholding the legality of mild spankings yesterday, the Supreme Court of Canada recognized that the protection of children also requires protection of their families from the State. But that was the status quo — and some judges have in the past made questionable decisions that left children unprotected from abuse. (A Manitoba appeal court judge once allowed a kick in the rear, saying that he had suffered worse as a child.) So the court wisely drew a line between the mild spanking and the abusive one.
It is not easy to define the boundary between reasonable force to correct a child’s behaviour and abusive force that harms a child. The 7-2 judgment will not, alas, provide perfect protection for all children. Many instances of corporal punishment will remain at the borderline of what is legal, and of what most Canadians would consider tolerable. Most people have seen assaultive behaviour — a twist to the wrist or the cartilage of an ear, a slap to the back of the neck, a series of hard blows to a small child’s back — engaged in by other people in public, or perhaps by themselves at home after a sleepless night. It will remain for the lower courts to define the boundary more precisely, using the Supreme Court’s guidelines. [Here follows a summary of the Court’s guidelines.]
No one should read the [Court’s] judgment as a kind of official sanction for hitting children. Rather, the ruling recognizes what Chief Justice Beverley McLachlin called the “blunt hand of the criminal law” should not be brought down on families, except as a last resort, lest it harm the children in doing so.
A couple of generations ago, it was not uncommon for parents to use belts, straps or sticks on their children. A generation ago, it was permissible to strike children hard enough to leave them in pain for a few days; that is no longer permitted. Yesterday’s ruling, by narrowing the definition of reasonable force, marks a small but important step in society’s advance (“Spanking Is Permitted, but Mind the New Rules” 2004).
Another Point of View
Globe and Mail columnist Margaret Wente also commented on the Court’s decision regarding spanking:
Anti-spankers pretend that little children are rational beings, like the rest of us, and that disciplinary measures should be designed to make them “think.” Actually, little children are more like puppies, most of which are innately loving and aim to please, but need to internalize the norms of civilized conduct. Brute force is a last resort, but sometimes a smack with a rolled-up newspaper wouldn’t hurt. In fact, the principles of training dogs and training children are more or less the same, and it strikes me that if parents were required to attend dog-training courses, we’d all be a whole lot better off. There’s nothing worse than being around a dog that’s got its owner cowed, unless it’s being around an eight-year-old who likes to scream, “You’re not the boss of me!”
In a culture that has elevated violence against children to the greatest of all human evils (and redefined violence to include just about everything), the harm that spanking does has been ridiculously exaggerated. [Some of] the happiest and most grounded kids I’ve ever met belong to families that believe in physical discipline. I know equally splendid kids whose parents never laid a finger on them. It’s not the spanks or lack of them that matter. It’s the clear expectations, the consistency, the ability to set boundaries, the time their parents spend with them, and the steady love. The best parents I know are the ones who spend great amounts of time attending — really attending — to their children. They put in the mileage, and there’s no substitute for it (Wente 2004).
CHALLENGE QUESTION
Are Children Equal
Before and Under the Law?
Q: Does section 43 of the Criminal Code offend section 15 of the Charter?
Here is the context for this question:
The Charter is part of the Constitution of Canada, and as such it is the supreme law of the land. No statute can stand if it offends the Charter.
Section 15(1) of the Charter provides for equality rights with these words: “Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.”
A violation of section 15 of the Charter can be excused if it meets the terms of section 1 of the Charter, which provides: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
The Foundation argued that section 43 decriminalizes the offence of assault against children. As such, a message is sent that a child is less worthy of recognition or value as a human being, or as a member of Canadian society.
Chief Justice McLachlin, for the Court, rejected the argument. There is a difference between the Charter requirement of equal treatment and identical treatment. That Parliament chose section 43 reflects its desire to protect the need of children for safety and security “in an age-appropriate manner.” She wrote:
The difficulty with this argument [that of the Foundation], as we shall see, is that it equates equal treatment with identical treatment, a proposition which our jurisprudence has consistently rejected. In fact, declining to bring the blunt hand of the criminal law down on minor disciplinary contacts … reflects the resultant impact this would have on the interests of the child and on family and school relationships. Parliament’s choice not to criminalize this conduct does not devalue or discriminate against children, but responds to the reality of their lives by addressing their need for safety and security in an age-appropriate manner….
Children need to be protected from abusive treatment. They are vulnerable members of Canadian society and Parliament and the Executive act admirably when they shield children from psychological and physical harm. In so acting, the government responds to the critical need of all children for a safe environment. Yet this is not the only need of children. Children also depend on parents and teachers for guidance and discipline, to protect them from harm and to promote their healthy development within society. A stable and secure family and school setting is essential to this growth process.
Section 43 is Parliament’s attempt to accommodate both of these needs. It provides parents and teachers with the ability to carry out the reasonable education of the child without the threat of sanction by the criminal law.
The criminal law will decisively condemn and punish force that harms children, is part of a pattern of abuse, or is simply the angry or frustrated imposition of violence against children; in this way, by decriminalizing only minimal force of transient or trivial impact, section 43 is sensitive to children’s need for a safe environment. But section 43 also ensures the criminal law will not be used where the force is part of a genuine effort to educate the child, poses no reasonable risk of harm that is more than transitory and trifling, and is reasonable under the circumstances. Introducing the criminal law into children’s families and educational environments in such circumstances would harm children more than help them. So Parliament has decided not to do so, preferring the approach of educating parents against physical discipline.
This decision, far from ignoring the reality of children’s lives, is grounded in their lived experience. The criminal law is the most powerful tool at Parliament’s disposal. Yet it is a blunt instrument whose power can also be destructive of family and educational relationships.…
I am satisfied that a reasonable person acting on behalf of a child, apprised of the harms of criminalization that section 43 avoids, the presence of other governmental initiatives to reduce the use of corporal punishment, and the fact that abusive and harmful conduct is still prohibited by the criminal law, would not conclude that the child’s dignity has been offended in the manner contemplated by section 15(1).
Children