Wednesday, January 16, 2002

Spank law upheld
By IAN MCDOUGALL, TORONTO SUN


Parents and teachers can still spank their kids, so long as they don't do it with a belt or hit the child on the head, the Ontario Court of Appeal has ruled.

The Court of Appeal upheld a lower court decision yesterday on the so-called spanking law -- outlining restrictions parents and teachers can use in punishing children, but leaving the law in the books.

The federal government opposed the appeal of Criminal Code Section 43, and their lawyer was pleased with yesterday's decision.

Section 43 allows parents and teachers to use reasonable force to discipline children without facing criminal charges.

"Parents can physically discipline their children ... that's what the court has found," said Roslyn Levine, lawyer for the Attorney General.

"It provides a balance between what parents need to raise their children and what children need to protect their constitutional rights."

The Canadian Foundation for Children Youth and the Law launched the appeal of Section 43 in 2000 on behalf of Saskatoon mother Ailsa Watkinson.

'USING FORCE'

The foundation and Watkinson were concerned Section 43 gave abusive parents and teachers freedom to hurt kids without facing criminal charges. Watkinson said then that she launched the challenge after hitting her own kids and questioning why such an act is considered acceptable.

The foundation may decide to take the case to the Supreme Court of Canada after considering the Court of Appeal's decision, said foundation lawyer Paul Schabas, adding there are some parts of the appeal ruling that are good.

"It's a very strong statement about using force on children," added lawyer Cheryl Milne, who worked on the foundation's appeal.

"If they're hitting children in the head or using weapons ... that's clearly unreasonable," she said.

The appeal court left the law intact, and underlined restrictions on what force can be used on kids.

Parents and guardians should not strike children under the age of two; they should not use force on teens; using a belt, ruler or other object to spank kids is not to be tolerated; anything that causes an injury is forbidden, the court stated in its ruling.

A look at section 43 of the Criminal Code, also known as Canada's spanking law:

* What it says: "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."

* Origins: First included in the Criminal Code in 1892, the section originally allowed the use of corrective force against wives, employees and prisoners as well as children.

* Critics say: It's too open to interpretation, treats children as second-class citizens, violates their right to security of the person and constitutes cruel and unusual punishment.

* Proponents say: It strikes a fair balance between the constitutional rights of children and the right of parents to raise their kids the way they see fit.

* The courts say: Reasonable force does not include the use of objects like belts, rulers or paddles, blows to the head, or blows that cause injury. There is no evidence that spanking works; no experts advocate its use. The section does not permit spanking a teenager or a child younger than three.