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ANOTHER WIN IN THE SPANKING CASE

The Ontario Court of Appeal handed down its decision on January 15, 2002, on the challenge to S.43 of the Criminal Code which permits parents (and teachers) to discipline children by spanking them if such discipline is reasonable. The Canadian Foundation for Children, Youth and the Law, backed by a $35,000 grant from the Court Challenges Program brought this action, claiming that the spanking of children victimizes and discriminates against children contrary to S.15 of the Charter because of their age, and their "security of person" under S.7 of the Charter.

The Ontario Court of Appeal in a unanimous decision, did not agree with the Foundation's arguments. Instead, it supported the views of REAL Women and the other pro-family groups, Focus on the Family, the Home School Legal Defense Fund and the Canadian Family Action Coalition (CFAC) which intervened under the name of the Coalition for the Autonomy of the Family. We argued that to remove the protection of S. 43 from the Criminal Code would result in parents being charged with a criminal offence if they disciplined their children by way of spanking them. According to Mr. Justice Goudge, who wrote the decision on behalf of the court, "no country in the world has criminalized all forms of physical punishment of children by parents," which position would be the case if the Foundation arguments had prevailed. The Court also said that removing S.43 from the Criminal Code would limit parents in their important responsibilities to train and nurture children. Finally, the court stated that it was in the state's interest to avoid harm to family life that would come from criminalizing the conduct of parents who spank their children.

In his judgment, Mr. Justice Goudge, however, accepted the findings of the lower court judge, McCoombs, J. re the guidelines to determine whether the force used on the child was "reasonable" under the circumstances. Mr. Justice Goudge summarized the expert evidence of social scientists which would serve as a test of whether the spanking was "reasonable." The guidelines included:

• Hitting a child under two years of age is wrong and harmful;



• Corporal punishment of teenagers is not helpful and is potentially dangerous;



• Corporal punishment using objects such as belts, rulers, etc., is potentially harmful and should not be tolerated;



• Corporal punishment should never involve a slap or blow to the head;



• Corporal punishment, which causes injury to a child is abusive;



• Spanking is not child abuse (spanking is defined as the administering or one or two mild to moderate "smacks" with an open hand on the buttocks or extremities which does not cause physical harm);



• Not every instance of physical discipline by a parent should be criminalized as extending the reach of the criminal law would have a negative impact upon families and hinder the nurturing of children;



• Withdrawal of privileges on removing a child from the room, are equally effective in most Cases; and



• Experts agree that the only benefit of spanking is short-term compliance.

Effect of Decision

The effect of this decision is that parents have the right to spank their children as a means of discipline provided it is "reasonable" within the guidelines. The decision does prevent interference by social workers from invading the privacy of the home to investigate or second-guess any parental decision in regard to discipline by spanking. In this regard, it is noted that one of the interveners on the side of the appellant Foundation, was the Ontario Association of Children's Aid Societies. If the case had gone the other way and prohibited all spanking of children, by removing S.43 from the Criminal Code, the result would have been a vast increase in the power and jurisdiction of Children's Aid Societies across Canada. The latter would then have been required to employ legions of social workers to monitor and investigate private family life in order to "weed out" parents who violated the law by spanking of children as a method of discipline. It is one thing for vigilant social workers to prevent the abuse of children, but is quite another to give them the power to arrogantly investigate everyday family discipline matters.

Canadians Support Court Decision

It appears that Canadians decidedly agree with this court decision. A Leger Marketing survey carried out about a week after the decision was handed down, found that 70% of Canadian are against having the government pass a law that would prohibit parents from spanking their children. Only 21.9% of the 1,516 respondents wanted spanking to be banned.

Costs of the Case

It is interesting to note that the court ordered the Foundation to pay the costs of the federal Attorney General in this case, if the latter requested costs. This gives rise to the peculiar situation of the Foundation having to hand over the taxpayers' money it received for the legal challenge from the notorious federal Court Challenges Program, to cover the costs of the tax-supported Attorney General's department.

Needless to say, none of the pro-family interveners were awarded costs. As usual, we defended family life in Canada out of our own pockets. In this regard, we are deeply grateful to our wonderful members who made our intervention possible.

The Canadian Foundation for Children, Youth and the Law, is now considering a possible appeal to the Supreme Court of Canada, providing of course, they obtain yet another grant of $35,000 from the Court Challenges Program. If so, here we go again.

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