Is it legal to spank a child in Canada? Yes, but maybe not for long

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There is no justification for keeping an archaic criminal code provision that allows parents in Canada to legally spank, slap or otherwise physically discipline their children, argues a commentary just out in the Canadian Journal of Psychiatry.

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“There is no medical or scientific reason to support CP (corporal punishment) as a child-rearing tool,” wrote the authors, who argued Canada’s “spanking” law is based on a false dichotomy between spanking and abuse “that legitimizes physical aggression against youth.

“In fact, there is some irony in discipline attempts that try to reduce externalized behavior — such as aggression — by using spanking,” senator and psychiatrist Stan Kutcher, and Dr. Jean-Francois Carmel of the University of Montreal wrote.

Kutcher has introduced a bill in the senate to repeal Section 43 of the Criminal Code, a contentious passage that permits the use of “minor force that is reasonable under the circumstances.” The Senate voted Tuesday night to send bill S-251 to the standing senate committee on legal and constitutional affairs.

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The NDP has also tabled a bill seeking to have Sec. 43 abolished. All told, there have been 18 legislative attempts over the years to have the section scrapped.

The National Post’s Sharon Kirkey explains what’s behind the drive to get child-spanking off the books.

What does Section 43 say, exactly?

As it stands now, Sec. 43 of the Criminal Code reads: “Every school teacher, 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.”

First drafted in 1892, the law remains virtually unchanged, though it no longer includes “masters and apprentices” among the relations covered by the defense. The law also no longer allows husbands to use reasonable force to “correct” a wife.

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Has the spanking law been legally challenged?

In 2004, the Supreme Court of Canada upheld the law after Saskatoon social work professor, Alisa Watkinson, in partnership with the Canadian Foundation for Children, Youth and the Law, challenged the law as unconstitutional and a violation of children’s security.

While the top court refused, in a 6-3 decision, to repeat Sec. 43, it sets limits as to the type and degree of force that may be used.

The court clarified that what is “reasonable” means force that’s “transitory and trifling in nature,” that it may only be used against children between ages two and 12, the head must not be struck, and it can’t involve objects like rulers or belts and can’t cause physical injury. Parents also can’t be motivated by “anger,” “frustration” or “an abusive personality.”

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Writing in the Canadian Journal of Psychiatry, Kutcher and Carmel cite a recent study that suggested “most cases of substantive physical abuse in Canada would still fall within the guidelines provided by the Court.”

“Most cases of maltreatment involve the parents, with most children being usually between 2 and 12 years of age. These cases also usually do not result in physical injury and do not involve the use of an object.”

In 2015, Prime Minister Justin Trudeau pledged to implement the 94 recommendations made by the Truth and Reconciliation Commission, one of which, recommendation six, was to abolish Sec. 43.

“Corporal punishment, as a way of correction, was introduced to Indigenous Society in Canada en masse through the use of Residential Schools and Federal Indian Day Schools,” the Native Women’s Association of Canada wrote to Kutcher in a letter supporting Bill S-251. “For the punishers, they believed their actions to be reasonable under the circumstances, a fundamental tenant to what is now codified in s. 43.”

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What are the arguments for repudiation?

“In Canadian law children are the only group of citizens who can be legally subjected to corporal punishment,” Kutcher and Carmel wrote in the Canadian Journal of Psychiatry.

Numerous organizations and agencies have condemned spanking and physical punishment of children as a violation of children’s human rights, as well as their charter rights to security of the person and equal protection of the law, regardless of age.

At least 65 countries have abolished all physical punishment of children. A meta-analysis published in 2018 that reviewed five decades of research found corporal punishment was associated with increased aggressiveness and antisocial behavior like bullying and was linked to the same harms as physical abuse.

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Other studies have linked spanking with an increased risk of childhood depression and anxiety, and slower cognitive development.

There’s no evidence improving it a child’s behavior, and Canadians’ attitudes are shifting, opponents argue, with polls suggesting fewer parents are using, or approve of, spanking.

In Quebec, corporal punishment of children in families dropped from 48 per cent in 1999, to 26 per cent in 2018. A Research Co. a poll released in February found 58 per cent of adult Canadians surveyed overall agreed with allowing parents to physically discipline children. However, 61 per cent of those aged 18 to 34, and a majority (53 per cent) of those aged 35 to 54 want to see an end to the use of force to discipline children.

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A 1999 Angus Reid poll found only 16 per cent of Canadians said it should be a criminal offense for a parent to spank their child.

What would be the legal effects of scrapping Section 43?

It’s not necessary to make spanking a crime, Kutcher and Carmel said. “According to many, any legal prohibition should not be punitive, but geared towards providing additional resources for parents and families in need, especially when (corporal punishment) is part of traditional cultural disciplinary methods,” they wrote.

According to a federal research paper on the “spanking” law, if 43 were repeated, the Criminal Code’s general assault provisions would apply “to anyone who uses force against a child without the child’s consent.

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“A defense based on ‘reasonable chastisements’ would no longer hold for parents, teachers or guardians.”

That’s worrying, to some. Could a parent be charged or prosecuted for minor spanks or slaps, for example, spanking a child who runs out into traffic?

However, the de minimis defense (a common law defense) would likely preclude criminal convictions and punishment for minor breaches of the law, according to the federal research paper. Countries that have prohibited spanking and other forms of physical punishment have not seen an increase in criminal charges for parents, or more child welfare investigations.

“Law enforcement officers already have discretion to decide when assault is too trivial to merit the full force of the law, and this applies to children as well,” John Fletcher, then editor-in-chief of the Canadian Medical Association Journal wrote in an editorial in 2012 calling for a repeal of Sec. 43.

As long as 43 stands, “it is a constant excuse for parents to cling to an ineffective method of child discipline when better approaches are available,” said Fletcher, who called spanking an “anachronistic excuse for poor parenting.”

National Post

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