Court Challenge of Parents' Right To Spank

The other shoe has dropped in the long-promised court challenge of S.43 of the Criminal Code which allows parents to spank their children if it is reasonable under the circumstances.

As discussed in Reality, January/February, 1998, "The Closed Doors at the Court Challenge Office," page 1, the tax-funded Court Challenge Program gave the Toronto-based Canadian Foundation for Children, Youth and the Law $45,000. to launch this court challenge. It gave a further $5,000 to Dr. Ailsa Watkinson of Saskatoon, teacher/social worker, to carry out research on the subject to assist the Foundation with its Court Challenge.

The Foundation officially launched its case this past November arguing that S.43 of the Criminal Court is unconstitutional as it fails to "give children the same rights and protections as adults."

Family-Coalition Formed

This court challenge, if successful in removing S.43 from the Criminal Code, will permit the state to directly intrude into family life, a coalition of family groups was formed to intervene in this case in order to argue that S.43 should be retained in the Criminal Code on the grounds that the family has the primary responsibility for the raising of children. The four groups forming this coalition, called the "Coalition for Family Autonomy," is comprised of REAL Women of Canada, Focus on the Family, the Canadian Family Action Coalition and the Home School Legal Defence Association of Canada.

The Coalition is arguing that the Charter of Rights encompasses a constitutionally protected liberty interest for parents and families under which:

a) parents bear the primary duty and responsibility for the education and upbringing of their children;

b) there exists a presumption that parents act in the best interests of their children; and,

c) parents are entitled to use reasonable corrective discipline for their children.

Further, the Coalition is arguing that the Charter does not create "autonomous rights for children" under which all legal differences between children and adults are eliminated. The Coalition is also arguing that S.43 of the Criminal Code is reasonable legislation which has worked well historically in that provincial child authorities and the courts monitor the difference between reasonable corrective discipline and child abuse.

The Children's Foundation has been preparing its case for some time (at taxpayers' expense, thanks to the Court Challenge Program) to support its argument. It has filed eight (8) volumes of evidence, including exhibits, studies and affidavits to support its case. The Family Coalition is hoping that this court action can be postponed until the fall of 1999 in order for it to obtain evidence to offset the Foundation's evidence.

This promises to be a difficult, uphill battle but we must be involved in this court case, in order to uphold the parents' right to retain the primary responsibility for the raising and disciplining of their children.

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