Just as families have evolved across generations, so too have our ideas about parenting, children and the social norms regarding discipline. While there is always diversity in what people feel is appropriate, there has been a significant shift across generations away from authoritarian parenting styles toward a more compassionate view that treats children as rights-bearing individuals rather than property.
Despite this societal shift, the use of corporal punishment in the form of “spanking”((The term “spanking” is used in this article to include corporal punishment and the use of “corrective” physical force against children.)) is legally protected under section 43 of Canada’s Criminal Code, also known as the “spanking law.” Section 43 reads as follows:
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. R.S.C., 1985, c. C-4
This defence first appeared in the Criminal Code in 1892 and has changed little since.((Laura Barnett, “The ‘Spanking’ Law: Section 43 of the Criminal Code,” Parliamentary Information and Research Service (June 20, 2008), http://bit.ly/2d3ZvWi.)) Discussions about what to do with section 43 have an interesting and active history stretching back to the 1970s and earlier, but it is still on the books today.
“Spanking” in the Courts
Section 43 has been challenged a number of times over the past 30 years. In 1998, the Canadian Foundation for Children, Youth and the Law started a rights-based legal action in the Ontario Superior Court to challenge the constitutionality of section 43 of the Criminal Code on the basis that it violates the Canadian Charter of Rights and Freedoms and the United Nations’ Convention on the Rights of the Child.
The challenge was dismissed by the Ontario Superior Court and the Ontario Court of Appeal. Despite the dismissal, the government argued that physical force should be discouraged as a normative technique of correction. The case then moved on to the Supreme Court of Canada, but, in its January 2004 decision, the Supreme Court held that section 43 did not infringe on the Charter. It did, however, set out a series of judicial limitations (which do not appear in the Criminal Code) on corporal punishment:
- Only parents may use reasonable force solely for purposes of correction.
- Teachers may use reasonable force only to “remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment.”
- Corporal punishment cannot be administered to children under two or to teenagers.
- The use of force on children of any age “incapable of learning from [it] because of disability or some other contextual factor” is not protected.
- Discipline by the use of objects or blows or slaps to the head is unreasonable.
- Degrading, inhuman or harmful conduct is not protected, including conduct that raises a reasonable prospect of harm.
- Only minor corrective force of a transitory and trifling nature may be used.
- The physical punishment must be “corrective, which rules out conduct stemming from the caregiver’s frustration, loss of temper or abusive personality.”
- The gravity of the precipitating event is not relevant.
- The question of what is “reasonable under the circumstances” requires an objective test and must be considered in context and in light of all the circumstances of the case.((“What’s the Law?” Corrine’s Quest, accessed September 27, 2016, http://bit.ly/2dwYIJ2.))
The current legal context has led to confusion and conflict due to contradictions between the definitions of assault outlined in criminal law and definitions of child abuse found in provincial and territorial law, as outlined by the Ontario Public Health Association:
“… a provincial or territorial child welfare authority may investigate a report of parental physical abuse of a child, conclude that she is at risk in her family and apprehend her. When this happens, police may lay a charge of assault. However, section 43 provides parents with a legal defence against such a charge. This has led to situations which seem to defy logic, in which the definition of “a child in need of protection” in provincial and territorial law leads to the child’s apprehension, but the protection afforded to parents under section 43 of the Criminal Code leads to their being acquitted of assault.”
There have been many legislative attempts to have section 43 repealed or amended, with 17 private member’s bills being tabled in Parliament since 1994, though none have succeeded. Senator Céline Hervieux-Payette has introduced numerous bills; however, to date, all have died at various stages of reading due to elections and prorogations of Parliament.((Coalition on Physical Punishment of Children and Youth, “Physical Punishment Update #16,” Joint Statement on Physical Punishment of Children and Youth (March 2016), accessed September 27, 2016, http://bit.ly/1WJKWEN.))
Pressure to repeal section 43 has also mounted from the international stage since Canada signed the UN Convention on the Rights of the Child. Article 2 of the Convention states that signatories “take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.”((United Nations, “Convention on the Rights of the Child,” Treaty Series (November 20, 1989), http://bit.ly/1fGCcXV.))
In response to reports from Canada regarding the action it has taken to meet the requirements of the Convention, the United Nations Committee on the Rights of the Child recommended that physical punishment of children in schools and families be prohibited and that section 43 be removed from the Criminal Code. However, no action was taken and the law remains on the books. To date, 51 countries have banned the physical punishment of children in all settings.
Most recently, the Truth and Reconciliation Commission (TRC) recommended repealing section 43 as the sixth of its final report’s 94 calls to action. “The Commission believes that corporal punishment is a relic of a discredited past,” it reads, “and has no place in Canadian schools or homes.”((Truth and Reconciliation Commission, “Canada’s Residential Schools: The Legacy,” The Final Report of the Truth and Reconciliation Commission of Canada (December 2015).)) The federal government has since committed to accepting all calls to action outlined in the TRC report.
“…corporal punishment is a relic of a discredited past, and has no place in Canadian schools or homes.”
– Final Report of the Truth and Reconciliation Commission
A most compelling body of research has been developed around the question of physical punishment of children. In June 2016, Dr. Elizabeth Gershoff, Associate Professor at the University of Texas at Austin, and Andrew Grogan-Kaylor, Associate Professor of Social Work at the University of Michigan, published a literature review that includes a wide range of studies on corporal punishment of children. They found that the research has been consistent. Spanking is at best ineffective and at worst harmful to children.((Elizabeth Gershoff and Andrew Grogan-Kaylor, “Spanking and Child Outcomes: Old Controversies and New Meta-Analyses,” Journal of Family Psychology, 30:4 (June 2016), doi:10.1037/fam0000191.))
A series of meta-analyses have demonstrated that in addition to increases in aggressive behaviour in children, spanking has been associated with increases in mental health problems into adulthood, impaired parent–child relationships, delinquent behaviour and criminal behaviour in adulthood.((Elizabeth Gershoff, “Corporal Punishment by Parents and Associated Child Behaviors and Experiences: A Meta-Analytic and Theoretical Review,” Psychological Bulletin, 128:4 (July 2002), doi:10.1037//0033-2909.128.4.539.)) There is also research showing that a risk that initial “corrective” spanking can progress to child abuse.((Joan Durrant et al., “Punitive Violence Against Children in Canada,” Centre of Excellence for Child Welfare (March 31, 2006), http://bit.ly/2czf1mO.))
The research shows that hitting children is ineffective – instead of teaching children the reasons their behaviour needs to change, it simply causes the child pain and engenders fear. Studies have shown that children need to internalize reasons for behaving in appropriate ways.((Elizabeth Gershoff, “Spanking and Child Development: We Know Enough Now to Stop Hitting Our Children,” Child Development Perspectives 7:3 (July 10, 2013), doi:10.1111/cdep.12038.)) Spanking teaches them to behave in order to avoid physical punishment. When the threat of physical punishment is gone, children find no reason to behave appropriately. Spanking can lead to some children considering violence toward others as a problem-solver. A violent attitude can also work to reduce family cohesion.
The future of “spanking” in Canada
Evidence shows that children do not learn appropriate behaviour from being physically hurt. While children need to be accountable for their behaviour, modelling positive behaviours and teaching them to self-regulate, communicate their feelings and ask for help are more effective. Parents play an important role in socializing children, teaching how certain actions and behaviours are not acceptable and providing opportunities to develop the skills to function well in society.
For teaching children to grow and mature into responsible, capable and contributing adults, spanking is not the way. Violence against children should be against the law, not defined by it. We know there are more compassionate and effective ways to raise children to be capable young adults.
Corinne Robertshaw: A Committed Advocate
Corinne Robertshaw was a lawyer with the federal government in the 1970s. She became concerned about injuries and deaths of children caused by parents. She determined that section 43, which provides legal defence for assault against children, was a factor contributing to these injuries and deaths. She produced a study on child deaths caused by physical punishment (Discussion Paper on Child Protection In Canada, February 1981).
In 1990, she retired and dedicated the rest of her life to seeing the repeal of section 43. She created a national, multidisciplinary committee to mobilize Canadians interested in the issue and to continue to develop evidence and arguments in favour of repeal. She died in January 2013 and Corinne’s Quest: End Physical Punishment of Children was formed to continue her work and honour her legacy.
Kathy Lynn is a parenting speaker, author and chair of Corinne’s Quest.
This article was reviewed by Rina Arseneault, C.M., Associate Director of the Muriel McQueen Fergusson Centre for Family Violence Research (MMFC) at the University of New Brunswick.
Published on November 15, 2016