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THE CONTROVERSY OVER SPANKING - SETTLED AT LAST

A child advocacy organization, The Canadian Foundation for Children, Youth and the Law, which has been provided generous funding from the federally funded Court Challenges Program, brought a legal challenge through the Canadian Courts, one level after the other, demanding that the disciplining of children by corrective force such as spanking be regarded as a criminal act. To obtain this objective, the Foundation argued that S.43 of the Criminal Code, which currently provides that parents and guardians and teachers may discipline a child by corporal punishment if it is reasonable under the circumstances, be declared unconstitutional.

On January 30, 2004, the Supreme Court of Canada finally settled the matter by declaring once and for all (thank heaven) that S.43 of the Criminal Code is constitutional with the result that parents may spank their children, if it is reasonable and it is used for educative or corrective purposes.

The Supreme Court decision was 7 - 2 in support of the constitutionality of S.43 of the Criminal Code with the two dissenting judges being Madame Justice Louise Arbour and Madame Justice Marie Deschamps. The majority decision was written by Chief Justice Beverley McLachlin. The majority concluded that a person applying the force against a child, however, must intend it to be for educative or corrective purposes, and designed to restrain, or express disapproval of the child's behaviour. It is important, however, according to the court, that the child be capable of benefiting from the correction so that the child has the capacity to learn and the possibility of learning from the correction.

For this reason, the majority concluded (paragraphs 37, 40 and 46) that there is no corrective value in administering corporal punishment on children under two years of age or teenagers (the latter being harmful) because it can induce aggressive or antisocial behaviour. Also, it stated that using objects such as rulers or belts, is physically and emotionally harmful as are slaps or blows to the head. These types of punishment, therefore, will be construed by the courts henceforth as an unreasonable use of corporal punishment.

The court's decision to uphold the law was based on the fact that children need a safe environment, and must depend on parents and teachers for guidance and discipline to protect them from harm and to promote their healthy development within society. It decided, therefore, that S.43 of the Criminal Code accommodates both these needs.

To remove S.43 from the Criminal Code, the court concluded would risk ruining lives and the breaking up of families - a burden which in large part would be borne by the children. That is, according to the court, introducing criminal law into children's families and educational environments would harm children more than help them.

Common sense at last from the Supreme Court!

Hopefully, this is the end of the spanking controversy. REAL Women and Focus on the Family and the Home School Legal Defence Association, under the name, "Coalition for Family Autonomy," have spent a great deal of time, money and effort in defending S.43 in the Criminal Code and the protection it provides families. It was worth it.

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