This year, attention is being focused on the Canadian law that protects parents’ and educators’ rights to discipline children using reasonable force — the so-called “spanking law.” The Liberal government has committed to follow the recommendations of the Truth and Reconciliation Commission, in which is a suggestion to repeal Section 43 of the Criminal Code (i.e. Liberals might make spanking a crime punishable by law).

The current law that protects parents and teachers from charges of assault when they use certain types of limited force against children reads as follows:

“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.”

The law has already come before the Supreme Court of Canada this century when in 2004 the Canadian Foundation for Children, Youth and the Law sued Canada to repeal the law, claiming that the law was unconstitutional on the grounds that it violated a child’s rights to security of person, equality, and freedom from cruel and unusual punishment. The nation’s court decided that the law was not unconstitutional by a majority of six to three.

The majority reasoned that Section 43 protected parents, schoolteachers and other people who have assumed all of the obligations of parenthood. They also opined that the protection only existed for parents so long as the force was educational or corrective, and maintained the limits to which force could be used.

In order for force to be protected, they stated, it must be sober and reasoned, address actual behaviour, and be intended to restrain, control or express symbolic disapproval. Force could not be used against children under two years of age or against children with particular disabilities, because they did not have the capacity to understand and benefit from the correction. Force against teenagers is also not allowed because it creates resentment, the judges asserted.

The limits to force also ensure that parents cannot legally use force without a serious reason, and the force must match the seriousness of the wrongdoing. No force can be used against the head of a child, and objects like belts and rulers cannot be used.

Further, the majority reasoned that although the law applied to teachers as well as parents, force was not reasonable in the school context in general but could be used to remove children from classrooms or secure compliance with instructions.

The three dissenting justices stated that children’s rights were violated by corrective force.

One justice said that children’s equality rights were violated by the law, but this was a justified infringement on their rights because of the “free and democratic society” provision of Section 1 of the Charter. She opposed the use of force by teachers being protected, however.

A second dissenting justice believed that Section 43 violated a child’s right to security. She found that there was not clear enough judicial consensus on what exactly constitutes “reasonable” force under a given set of circumstances.

A third dissenting justice believed that “only very minor applications of force” were justified to impair the rights of children, and would have Section 43 struck down.

Canadian opinion is divided on the issue. Fifty-one percent of Canadians polled said they wanted the law struck with regards to parents and teachers. A significant majority said they wanted the law struck just with regards to teachers.

Science on the subject is also divided. Some studies have found that forceful punishment has detrimental effects on children, including contributing to mental health issues, poor relationships with parents, and increased levels of aggression. Other researchers have disputed the veracity of these findings.

Editors note: When discussing a law, it sometimes helps to remember the actual effect of the law. For example, spanking might be something you believe helps or hurts the effort to raise children effectively, but decisions about what is better or worse are not matters of law; A law against spanking effectively means any time a parent spanks a child and police hear of it the justice system must then prosecute that parent for a crime. In this case, those found guilty of spanking would likely have their children taken from them and placed in a care system where — it would be hoped — the children would be safer from spanking.