Supreme Court to hear arguments
against century-old spanking law
The right to spank goes on trial Friday at the Supreme
Court of Canada, in a constitutional challenge to federal law that
allows parents and teachers to use physical force to discipline
children.
"Hitting people breaks fundamental rights of respect
for human dignity and physical integrity," say lawyers Paul Schabas and
Cheryl Milne in their written critique of the law. "Children are people
too."
Schabas and Milne are representing the Canadian
Foundation for Children, Youth and the Law, which wants the court to
strike down the so-called spanking law that has been on the books for
more than a century.
They say it violates the Charter of Rights by
infringing children's security of person, discriminating against them
and subjecting them to cruel and unusual punishment.
At issue is Section 43 of the Criminal Code, first
passed in 1892 and amended several times since. It provides that
parents, teachers and other caregivers cannot be prosecuted for assault
for using "reasonable" force to discipline children.
The federal Justice Department, which defends the law,
says the government doesn't advocate spanking, but it does believe
parents need some leeway in raising their children free of state
interference.
"The criminal law is a blunt instrument in the family
context," says federal lawyer Roslyn Levine in her written brief to the
court.
"Striking Section 43 would result in unnecessary
intervention likely to cause more harm than benefit to the long-term
interests of the child."
Levine contends the courts have developed legal
guidelines that make it clear a parent can claim legal exemption only
for "mild to moderate" discipline, not for action that crosses the line
into child abuse.
The spanking law has been a bone of contention for
decades, with lower-court judges wrestling repeatedly with where to draw
the line. But this is the first time the Supreme Court has been asked to
rule on its constitutionality.
The case did not arise out of any specific incident.
The foundation, an advocacy group for children's rights, simply went to
court to ask for a decision on the validity of the law.
It failed to find judicial favour in two previous
tries.
Ontario Superior Court upheld the legislation three
years ago, and the Ontario Court of Appeal unanimously confirmed that
judgment last year, finding there was no violation of the Charter of
Rights.
The foundation has nevertheless won support from the
Ontario Association of Children's Aid Societies, which has joined in
arguing the law should be struck down.
Backing the Justice Department are the Coalition for
Family Autonomy, a collection of conservative lobby groups, and the
Canadian Teachers Federation.
The teachers federation says it doesn't favour
spanking, but it does fear that if the law is overturned teachers could
face prosecution just for physically restraining a troublesome student.
6 June 2003
http://www.mytelus.com/news/article.do?pageID=canada_home&articleID=1341551
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