On correcting children

Letters to the Editor (The Guardian)
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The law allows parents to spank their kids, with conditions

Guest Opinion: Generally it is a criminal offence to intentionally apply force to another person without their consent. However, Canadian law [section 43 of the Criminal Code] provides a narrow zone of immunity from criminal liability for persons who use reasonable force to correct a child under their authority.

The immunity only applies to three groups: (1) parents, (2) persons who have assumed all obligations of parenthood, and (3) schoolteachers.

To qualify for immunity the force must be for a corrective purpose and must be reasonable in the circumstances.

According to a 2004 Supreme Court of Canada decision, the immunity is only with respect to minor corrective force of a trifling and transitory nature used for the genuine purpose of educating or disciplining the child. If the force is applied out of anger or frustration the protection does not apply. Immunity only applies to sober, reasoned uses of force that address the actual behavior of the child and are designed to restrain, control or express some symbolic disapproval of his or her behaviour.

The purpose of the use of force must be educative. There is no immunity for the use of force when the child because of age or disability lacks the cognitive development to benefit from it. In such cases force is not corrective.

The immunity only applies when the amount of force used is reasonable in the circumstances. The gravity of the child’s act is not a relevant consideration in determining what corrective force is reasonable in the circumstances.

There is no immunity for those who apply force that causes harm or raises a reasonable prospect of causing bodily harm. Thus the protection is only for the mildest forms of assault.

The following types of punishment have been identified as unreasonable by the Supreme Court of Canada:

(1) corporal punishment of children under two years of age because it has no corrective value;

(2) corporal punishment of teenagers because it can induce aggressive or antisocial behavior;

(3) corporal punishment using items such as rulers or belts;

(4) corporal punishment involving blows to the head;

(5) corporal punishment by schoolteachers and;

(6) physical correction that harms or degrades a child.

Teachers may sometimes use corrective force to restrain children or remove children from classrooms or to secure their compliance with instructions. However, the use of force for corporal punishment by teachers is unreasonable. Section 73 of the P.E.I. School Act prohibits the use of corporal punishment as a disciplinary measure.

An editorial in the Sept. 4, 2012, issue of the Canadian Medical Association Journal called for repeal of section 43 of the Criminal Code and an outright ban on spanking of children.

The editorial writer, Dr. John Fletcher, maintains section 43 sends a wrong message. He states: “ While section 43 stands it is a constant excuse for parents to cling to an ineffective method of child discipline. It is time for Canada to remove this anachronistic excuse for poor parenting from the statute book”

 

Gerard Mitchell of Charlottetown is a retired chief justice of the Supreme Court of P.E.I.

 

 

Organizations: Supreme Court of Canada, PEI School, Canadian Medical Association Journal

Geographic location: Canada, Charlottetown

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