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The
Supreme Court of Canada has ruled that Canada's so-called
spanking law does not violate the rights of either children
or parents.
Six
of the court's nine judges decided to uphold Section 43
of the Criminal Code, which provides parents, teachers
and caregivers the right to use force that is "reasonable
in the circumstances."
"Parents
can breath a sigh of relief today that they will not be
criminalized for lovingly disciplining their children,"
said Michael Martens of Focus on the Family.
"What
I am concerned about is the message that its still okay
to hit children," said Cheryl Milne of the Canadian
Foundation for Youth and the Law.
While
the court didn't pass judgment on spanking itself, it
offered guidance to help lower-court judges draw the line
between acceptable and unacceptable spanking.
It
clarified that Section 43 allows only "minor corrective
force of a transitory and trifling nature." It does
allow not the use of paddles or whips, degrading punishment,
or blows to the head or face.
Children
under the age of two or over 12 should not be spanked,
the court added. And teachers should not be permitted
to strike children, though they can use force to restrain
violent outbursts in the classroom.
Ruling
Not Unanimous
Three
judges dissented, concluding the law was vague and discriminatory.
They also noted that 12 countries in Europe prohibit spanking,
though have not criminalized the practice.
Pearl
Rimer of the Toronto Child Abuse Centre told CTV Newsnet
she is deeply disappointed in the court's decision.
"The
guidelines the court offered are not new. We've had them
for quite a while. But once again, it's giving permission
to use spanking."
Criminal
lawyer Rick Storey says he wasn't surprised by the court's
decision.
"I
don't think Section 43 is in any way different from what
you would find in most other cultures in the world, including
the United States and Britain and countries we compare
ourselves to most often," he told CTV Newsnet.
Court
Not Sanctioning Spanking
Storey
cautions that parents shouldn't interpret the court's
ruling as permission to strike their children.
"To
clear up a misconception, Section 43 does not sanction
applying force to children. What it does is act as a defence
for parents."
"When
you spank your child, the definition in the Criminal Code
would constitute that as an assault. Section 43 simply
says if you're a caregiver, and you're using reasonable
force, there's a defence."
Section
43 has been on the books in some form or another since
1892. The Canadian Foundation for Children, Youth and
the Law, decided to challenge the law under the Charter
of Rights and Freedoms, arguing it ignores the rights
of children. "It's
an equality and human rights issue ... and children are
being harmed under the current law," Martha MacKinnon,
the foundation's director, told Canada AM.
The
Justice Department argued the law should stand. It said
while the government doesn't advocate spanking, it believes
parents should be given leeway when disciplining their
children.
The government said two lower courts have made it clear
a parent can claim legal exemption only for "mild
to moderate" discipline, not for discipline that
borders on child abuse.
The
Coalition for Family Autonomy, a collection of conservative
lobby groups, backed the Justice Department. They argued
that striking down the section would give the state too
much power when it comes to the family.
The
Canadian Teachers Federation also supported the Justice
Department. The organization doesn't favour spanking,
but fears if the law is overturned, teachers could face
prosecution for physically restraining a problem student.
"We
believe teachers need the shield of using reasonable force
in exceptional circumstances," said Terry Price,
a spokesperson for the group.
While
the constitutional challenge was not based on any specific
case, the issue fell into the national spotlight when
seven children in Ontario were taken from their family
because their parents insisted they could use a switch
to discipline the kids.
The
parents said this was their right and religious belief.
A judge eventually returned the children.
CTV's
Joy Malbon contributed to this report.
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