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Liberals promise to get rid of 'spanking' provision in Criminal Code

By Deborah Gyapong
Canadian Catholic News

01/20/2016

OTTAWA (CCN) — The Liberal government has promised to abolish the so-called “spanking” provision of the Criminal Code that allows parents and teachers to use reasonable force in disciplining children.

The move is in conjunction with Prime Minister Justin Trudeau’s promise to implement every one of the 94 Calls to Action of the Truth and Reconciliation Commission’s report on the legacy of Indian residential schools.

Under the heading of Education, Call to Action #6 asks for the repeal of Section 43 of the Criminal Code of Canada but exactly how the recommendation will be reflected in legislation remains to be seen.

“The Government remains committed to implementing all of the Truth and Reconciliation Commission’s 94 calls to action,” said Andrew Gowing, a spokesperson for Canada’s Attorney General Jody Wilson-Raybould in an email: “At this point, however, it would be premature to comment on the potential legislative or policy approaches that may be taken to address this particular issue.”

Section 43 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.”

Canadian Catholic Bioethics Institute executive director Moira McQueen said the use of the word “reasonable” is key. If the law says no physical force is to be used, “it could be very dangerous in some situations,” she said.

A special education teacher she knows has often been “kicked and pummeled by a fairly strong young fellow with disabilities,” she said. A teacher should be allowed to restrain someone in self-defense or to prevent them, say, from jumping out a window. This is different from using the strap as a punishment, she added.

The word “reasonable” allows people to work out how in different situations to prevent harm to the students and to the teachers, she said.

“In the home situation, I think it’s awfully overdone to say minor reprimands should be illegal, or to put a label on a parent either driven to distraction by a kid not old enough to listen to reason, or holding a kid very closely to prevent him from damaging himself or someone else,” she said. “It could look very violent to other people, but necessary for the situation.”

At the same time McQueen raised concerns about corporal punishment. “I think that it is dangerous, I do have a problem with that, especially if people are angry. There should be a balance.”
Sometimes a “reasonable spank may be the best thing, even to bring someone to his or her senses,” she said.

Section 43 has withstood 10 attempts in Parliament to abolish it, as well as a court challenge that went all the way to the Supreme Court of Canada in 2004. REAL Women of Canada along with Focus on the Family intervened in those court cases.

“Our main concern is the protection of parents and teachers,” said REAL Women of Canada researcher Diane Watts. “The section of the Criminal Code is not really a debate about spanking, whether it is good or bad, although the Superior Court of Ontario determined spanking is not child abuse.”

“The section is concerned protection of parents and teachers from being criminalized, from being charged with assault with using reasonable force in directing, teaching, correcting children in the home and schools and in playgrounds and in public,” Watts said. “There are situations that call for intervention with physical force, such as removing a child from the situation.”

Institute of Marriage and Family Canada (IMFC) executive director Andrea Mrozek said they oppose removing Section 43 because it could lead to “state intrusion and infringement on the family and will, in effect, criminalize very good parents.”

“What we know from the research, there is a very clear distinction to be made between abuse and spanking being used as a disciplinary tool,” she said.

At the same time, Mrozek said she would personally not put spanking at the top of any tool box for disciplining children. Based on following the latest research on how children attach to parents and how good attachment makes children want to imitate please their parents, Mrozek said, “I am no fan of spanking.”

But the danger of eliminating Section 43 means “a risk good parents will be getting visits from the Children’s Aid Society,” she said. It could also pit children against parents.

Criminalizing the use of force, as has happened in other countries, such as Sweden, has led “to a great increase in removing children from the family and putting them in foster care,” Watts said.

Last February, Pope Francis raised the issue of spanking in one of his weekly general audiences. “One time, I heard a father in a meeting with married couples say ‘I sometimes have to smack my children a bit, but never in the face so as to not humiliate them,’ ” Pope Francis was quoted as saying.

The pope said the father showed he respected his children’s dignity. “He has to punish them but does it justly and moves on.”

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