Caution urged as feds ponder axing 'spanking law'
Published Tuesday, December 22, 2015 6:03PM EST
OTTAWA -- Repealing a provision of the Criminal Code that shields parents from facing assault charges for hitting their children would affect more than just First Nations communities, legal experts say.
It would also affect many immigrant and minority parents caught in a legal haze when it comes to child-rearing.
Section 43 of the Criminal Code gives parents and teachers a legal defence when they physically discipline children, most often seen as legalizing spanking. Removing the section was one of the 94 recommendations from the Truth and Reconciliation Commission that examined the legacy of Canada's residential schools, including rampant abuse.
The Liberal government has committed to implementing all of the recommendations.
Defining what crosses the line between spanking and abuse is not always easy and has raised critiques for years that Parliament should review the provision and either rewrite it, or do away with it.
"Should Parliament address this issue? Absolutely. Should it have a simple blanket repeal that could expose parents in many situations to criminal prosecutions for very minor touching, or conduct that is not clearly proven to be harmful? I would say no, but that's not to say that we don't need action in this area," said Nick Bala, a law professor from Queen's University in Kingston, Ont.
Spanking is accepted parenting in some cultural and immigrant groups, many of whom are already disproportionately targeted in criminal proceedings. Bala said parents from those groups, as well as aboriginal parents, may find their actions criminalized.
Toronto-based criminal lawyer Roots Gadhia said she had a case where the father in a Chinese immigrant family had hit his daughter below the neck and left a bruise. He was charged with assault after his daughter complained to police even though culturally he believed he had done nothing wrong in disciplining a rebellious child.
Gadhia said her Indian parents would hit her on the rare occasion she stepped out of line as a child because it was culturally accepted.
"Even that one time, in today's day and age, I would be able to call the police and have them arrested," she said.
Does that mean repealing the law would see parents face criminal charges for restraining or even spanking their children? It's unlikely, said Mona Pare, an associate professor of law at the University of Ottawa, pointing to common law defences that allow parents to defend spanking and a legal principle that leads Crown attorneys not to prosecute what they see as a trivial offence.
Section 43 has been criticized for years as condoning child abuse, while also being criticized for being vague about when spanking crosses the line. The Supreme Court of Canada in a 2004 ruling said spanking was reasonable, but set limits: the child had to be between the ages of two and 12, parents couldn't hit a child in the head, and parents can't use a weapon like a shoe, slipper, ruler or paddle.
The Canadian Bar Association and the Canadian Medical Association Journal have lobbied for its repeal, but private member's bills to remove it from the Criminal Code have repeatedly failed to pass the Senate and House of Commons.
"It's an attitude towards children in this country and that's why we see it as a social policy issue more than anything else," said Kathy Lynn, chairwoman of Corinne's Quest, a B.C.-based group that advocates for an end to any form of child abuse, including spanking.
"As long as we have it, we say we're a country who believes in hitting kids and that's not where I want to live."
Christian Girouard, a spokesman for Justice Minister Jody Wilson-Raybould, said the government was committed to implementing the commission's recommendations, but said the government wouldn't "speculate on potential legislative or policy approaches to address" the spanking law.