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Corporal Punishment & Child Protection

By Joan Braun, LLB

"If you hit your children the government will take them away" is a common belief among many parents, according to information gathered at a recent parent focus group. The purpose of this group was to determine the extent of knowledge held by immigrant parents about Canadian laws regarding child discipline.(1) Participants' answers clearly demonstrated confusion about Canadian child protection laws. However, such confusion is not reserved for immigrant parents. Whenever this topic is discussed in newspaper editorials or letters to the editor, similar confusion can be seen. Public opinion varies from a belief that the government does not do enough to protect children, to a belief that the government apprehends children far too often. Where does the truth lie? When does a parent have the right to use physical discipline on his or her children? This article will briefly examine this question, and discuss whether the legal standard is keeping pace with our societal ideals.

As a prelude to discussing the law in Canada, it is worth noting that, although there is no public consensus concerning whether or not parents should spank their children, there is a significant body of research which shows that spanking has little benefit, and actually can be harmful in some situations. In a recent case, the Ontario Court of Appeal (2) commented on expert evidence regarding the effect of spanking on children (3) . Some experts appeared for the plaintiffs, and some for the defense, but there were significant areas of agreement between the two groups - a fact which was commented on by the court. A partial list of these areas of agreement follows:

1. Corporal punishment of very young children: Hitting a child under two is wrong and harmful. With very young children, even mild spanking has no value and can destroy a child's sense of security and self-esteem - essential components of a healthy nurturing environment. A child under two will not understand why he or she is being hit.

2. Corporal punishment of teenagers: Is not helpful and [is] potentially harmful. There is a consensus that corporal punishment of teenagers achieves only short-term compliance and carries with it the danger of alienation from society, along with aggressive or otherwise anti-social behaviour.

3. Use of objects in corporal punishment: Corporal punishment using objects such as belts, rulers, etc., is potentially harmful, both physically and emotionally, and should not be tolerated.

4. A slap or blow to the head: Corporal punishment should never involve a slap or blow to the head.

5. Injury: Corporal punishment which causes injury (intended or unintended injury) is child abuse.

6. Resort to spanking for correction: None of the experts goes so far as to advocate or recommend spanking, or other forms of corporal punishment, as a form of child discipline. They agree that other forms of discipline, such as withdrawal of privileges or removing a child from the room, are equally effective in most cases.

7. Absence of evidence of benefits of spanking: There is general agreement among the experts that the only benefit of spanking to be found in the research is short-term compliance.

8. "Time out" as an effective alternative to spanking: The experts all endorsed the "time out" method as an effective and appropriate method of child discipline. [The "time out" method involves placing a child in a chair or room and requiring the child to remain there for a period of time until he or she calms down. .]

9. Spanking is not child abuse: Most of the social science witnesses and professionals agreed that spanking as defined here is not child abuse.

These comments provide an interesting illustration of social science research being examined and weighed in a court of law. Interestingly, even though the court agreed that the evidence shows few benefits to spanking, and that some forms of corporal punishment are harmful to children, parents' rights to use physical discipline on their children was upheld. (4)

This parental right is based on s. 43 of the Criminal Code which states "[e]very 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". In most circumstances, hitting another person (without permission) would be a criminal assault. However, s. 43 provides a parent with a defense against charges of assault, as long as the physical force used in disciplining a child is "reasonable under the circumstances". In the Canadian Foundation case, discussed above, the plaintiffs brought a constitutional challenge to s. 43, claiming that this provision violates the Constitutional rights of chidren, in specific s. 7, 12, and 15. These rights are set out in the Charter of Rights and Freedoms in the following words:

s. 7 Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

s. 12 Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

s. 15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

It is beyond the scope of this article to discuss the legal merits of each constitutional issue. However, some general comments about the case will be helpful in demonstrating what the Canadian law is in regard to physical discipline of children, and the intersection between the justice system and social science research on the issue of physical discipline. In the Canadian Foundation case, the court decided that s. 43 was not a violation of the constitutional rights of children. According to the court, Parliament instituted this provision with the intention of permitting "parents and teachers to apply strictly limited corrective force to children without criminal sanctions, so that they can carry out their important responsibilities to train and nurture children without the harm that such sanctions would bring to them, to their tasks and to the families concerned". The court was reluctant to interfere with parental responsibility for training and nurturing their children. The court was also reluctant to criminalize corporal punishment. The court expressed concerns that, if s. 43 was removed from the Criminal Code, parents could be charged for using non-abusive physical discipline. (5)

The effect of this decision is that s. 43 was left intact in the Criminal Code. However, this should not be seen as a court endorsement of corporal punishment. It merely reflects a judicial preference for dealing with incidents of abuse under provincial child protection legislation, rather than criminalizing all physical discipline. In the words of the court: (6) "There is a framework in place in each province and territory to monitor the family and deal with issues of child protection as they arise. The framework addresses such issues in a flexible manner with the goal of assisting families. The provincial framework reflects the reality that criminalization is often too blunt and heavy-handed an instrument with which to address many of the problems concerning the welfare of children."

In order to understand the court's rationale, it is important to understand the difference between child protection legislation, and criminal law. These two are fundamentally different. Under criminal law, a person is charged with having committed an offense in the past. At trial, the focus is on whether or not the offender has committed a criminal act, and, if so, what the punishment should be. If, for example, a parent is charged with assaulting his or her child, that parent will either be found guilty or innocent. (7) Child protection legislation is far more nuanced in its language. Under child protection legislation, the focus is not on whether the parent is guilty or innocent of abusing a child, but rather, on whether a child is at risk of being harmed and needs protection. If the child is believed to be in need of protection, appropriate measures are taken to protect the child. A broad range of interventions can be employed - from giving the family support services to apprehending the child. It is typically not necessary to prove a child has been harmed to find a child in need of protection, only that a child is at risk of being harmed. Emotional as well as physical factors are taken into account. It is not likely that a mild smack on the bottom by a parent's hand would lead to government intervention unless the child was hurt. However, intervention could occur after a spanking if the court determined that the surrounding circumstances warranted it. For example, in one B.C. case (8) the court determined that when a child is subjected to excessive yelling, spankings, and discipline the child is in need of protection, and that this constitutes emotional abuse rather than physical abuse.

It is unfortunate that the court in Canadian Foundation reached the decision that it did because, from a social science perspective, the court's approach was flawed. The court stated that children should be protected from abusive discipline (presumably by provincial child protection legislation), but wanted to avoid criminalizing non-abusive discipline. However, research tells us that abuse cannot be prevented by an approach that divides discipline into two distinct categories - the abusive and the non-abusive. According to one author:

Research no longer supports the notion of a dichotomy between "normal" and "abusive" parenting. A recent Ontario study showed, in fact, that parental attempts to discipline children using corporal punishment were involved in 85% of the substantiated cases of child physical abuse. In the suspected cases, it was difficult to distinguish between corporal punishment and abuse. The line between sanctioned corporal punishment and unsanctioned child abuse is therefore ambiguous and the use of physical punishment clearly places children at a higher risk.(9)

One of the arguments raised by the plaintiffs in Canadian Foundation was that s. 43 should be declared unconstitutional because "reasonable in the circumstances" is vague, and doesn't provide enough guidance to courts in regard to what is reasonable. As a result, s. 43 has provided protection to parents who have used harsh forms of physical discipline. Unfortunately, the court rejected this argument. The court stated that cases such as R v. Dupperon (10) provide objective standards of reasonableness, which an increasing number of courts are following. As set out in R. v. Dupperon (11) : the court will consider, both from an objective and subjective standpoint, such matters as the nature of the offence calling for correction, the age and character of the child and the likely effect of the punishment on this particular child, the degree of gravity of the punishment, the circumstances under which it was inflicted, and the injuries, if any, suffered.

It is ironic that the court in Canadian Foundation referred to the objective factors of reasonableness set out in R. v. Dupperon, but did not take note of the fact that the court in R. v. Dupperon found reasonable force was used when a child was strapped on the bare bottom with a leather belt, resulting in several bruises. Ironically, the form of discipline that the court in R. v. Dupperon determined to be reasonable is a type of discipline that the court in Canadian Foundation identified as abusive. In Canadian Foundation, the court stated that corporal punishment that causes injury is abuse.

There are many cases following R. v. Dupperon where the s. 43 defense was successfully applied in situations that would meet the criteria of abusive corporal punishment according to the experts in Canadian Foundation. For example, the s. 43 defense has been successfully used in a situations where a child was repeatedly slapped, punched and kicked, (12) where a child was struck with an extension cord on various parts of her body, leaving superficial abrasions and broken skin, (13) where a child was struck with implements such as a belt and spoon,(14) and where a child was struck in the mouth causing a swollen lip. (15)

Criminal sanctions would provide a strong deterrent to utilizing parenting methods such as these. Unfortunately, the court's reluctance to potentially criminalize "commonly accepted forms of physical discipline" left open the possibility that s. 43 will continue to successfully be used as a defense by parents in situations where children have been physically harmed.

The court could have taken a different approach by asking parliament to redraft s. 43 to explicitly state which methods of discipline are protected, and which are not, rather than leaving it to the courts to determine what is "reasonable" in each circumstance. Some experts would argue that parents should not be allowed to spank under any circumstances, but this proposition would not likely be agreed to by a majority of people (16) . The debate over spanking will likely continue for a while. In the interim, it is important to do all we can to protect children from forms of physical punishment that experts agree are clearly harmful. Making it impossible for parents who have harmed their children to use s. 43 as a defense would assist in this effort.

Some conclusions can be drawn from the above cited court cases. First, they demonstrate that it is a myth that the government will apprehend children simply because they have been spanked. Second, these cases demonstrate that court decisions are somewhat out of step with psychological research. Although the court in Canadian Foundation acknowledged that experts agree that some types of parental discipline are harmful, the court declined to remove the protection that s 43 potentially provides to parents using these methods. However, this provision has been successfully used as a defense to prosecution by parents who have harmed their children, and, therefore, it is hoped that at a future date, this clause will be redrafted or removed from the Criminal Code.(17)

Notes

1 The information elicited from the focus group will be used to develop a video and curriculum for ESL classes about Canadian laws concerning child discipline.

2 Canadian Foundation for Children, Youth and the Law v. The Attorney General of Canada [Jan. 15, 2002], Doc. CA C34749 (Ont. C.A.), online: Ontario Court's Homepage http://www.ontariocourts.on.ca/decisions/2002/january/CanadianC34749.htm [hereinafter Canadian Foundation] para 2

3 In this case all the social science witnesses accepted a definition of spanking as "the administering of one or two mild to moderate "smacks" with an open hand, on the buttocks or extremities which does not cause physical harm.".

4 It is important to note that Canadian Foundation is an Ontario case. As such, courts in other provinces are not required to follow this decision. However, this decision is very important because it is the first case heard by a court of appeal in any province on the question of whether s. 43 of the Criminal Code infringes on a child's constitutional rights.

5 The court doesn't explicitly provide a definition of "non- abusive" physical discipline. Presumably this would include "spanking", which the court defined as a mild to moderate hit on the bottom of a child with a hand and which did not harm the child.

6 Canadian Foundation at para 2 citing the trial court decision.

7 S. 43 means that if the parent hit the child with the intention of disciplining the child, and the force used was reasonable in the circumstances, the parent will be found "not guilty".

8 C. (H.R.), Re [1997] B.C.D. Civ. 360.20.70.00-02 (B.C. Prov. Ct.)

9 Sharon Greene,"The Unconstitutionality of Section 43 of the Criminal Code: Children's Right to be Protected from Physical Assault, Part 1"(1998) 41 Criminal Law Quarterly 288 at 289-291.

10 (1984), 16 C.C.C. (3d) 453 (Sask C.A.);

11 at 460

12 R. v. K.(M.) (1993), 16 C.R. (4th) 121 (Man C.A.)

13 R. v. Burtt (1986), 75 N.B. R. (2d) 259 at 270 (Q.B.) see Greene, supra, footnote 3 for further discussion of the cases cited in footnotes 5-8.

14 O (Re), [1978] 3 W.W.R. 1 (Alta Y. Ct.) 15 R. v. L.(V.), unreported, file No. D.R.S. 95-20489 (October 31, 1995, Ont. Ct. (Prov. Div.); it is worth noting that not all courts have been so lenient in their interpretation of reasonable. For example, in R. v. Harris [2000] BCD Crim 250.30.00-01 the court stated that "reasonable in the circumstances means 'moderate or not excessive'". The court stated that hitting a child on the head with a hard object was not reasonable because of the danger of doing permanent damage (B.C.S.C.).

16 In fact, seventy to seventy-five percent of Canadian parents report having administered physical punishment to their children (Greene, at 289)

17 It is worth noting that an application to appeal the decision in Canadian Foundation has now been filed with the Supreme Court of Canada. A decision has not yet been reached on whether leave to appeal will be granted.