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Spare the rod, protect the child

With the Trudeau government on the verge of banning spanking, critics ask: why has it taken Canada so long?

By John Barber

It was more than a decade ago that the great campaign to abolish corporal punishment in Canada collapsed, stopped dead at the bench of the Supreme Court by a jarring 6-3 decision affirming the right of Canadian parents to strike their children.

With that, a powerful social movement backed by more than 400 organizations, including The United Church of Canada, disappeared like a wisp of smoke. Canada seemed destined forever to remain a pariah among the nations that have outlawed physical punishment of children. And despite the court’s attempt to narrow the scope of Section 43 of the Criminal Code, the so-called spanking law, Canadian courts continued to acquit parents of assaults for no reason other than the fact that the victims were their children.

Hope for reform was close to zero when something astonishing happened last year: The Truth and Reconciliation Commission of Canada, established to redress the harms done to Aboriginal children by residential schools, demanded repeal of Section 43 as the sixth item in a list of 94 “calls to action” in its final report. Corporal punishment, the report declared, “is a relic of a discredited past and has no place in Canadian schools or homes.”

Backed by the unimpeachable moral authority of a commission exploring grave crimes against the most vulnerable families and children, the lost cause suddenly sprang from its court-mandated grave to re-occupy a central place in the national debate. When the new Liberal government promised to enact all 94 of the TRC’s recommendations, it almost seemed as if the debate was over.

“This is a change that will not only benefit Aboriginal children, but every single child in Canada,” says veteran anti-spanking campaigner Kathy Lynn of Vancouver. “It’s time to just get real and acknowledge that children are citizens of this country and deserve the same protection from assault that everybody else gets.”

But this is not the first time that repeal seemed assured. As the public reaction to the contentious 2004 Supreme Court decision revealed, spanking is no relic in many homes. Research suggests that at least half of Canadian parents use corporal punishment, which jibes with other surveys that show about half of Canadians oppose repealing the Criminal Code clause that allows parents who are spankers to defend themselves if charged with assault. The Senate has debated a number of bills to repeal Section 43 since 1996, but none has succeeded.

Like retired Supreme Court Justice Ian Binnie, supporters of the law are less convinced about the merits of spanking than they are with keeping the heavy hand of the law out of the home. And there’s no way around it: repealing Section 43 will instantly criminalize behaviour that many still consider normal and even praiseworthy. Judges and ordinary Canadians alike raise the fear of government agents dragging parents into court and ruining families over trivial domestic disputes.

“Spare the rod and spoil the child” is one of the oldest, most deeply rooted memes of human civilization, said by scholars to have originated with an adviser to the king of Assyria in the seventh century BC, and subsequently collected into the biblical Book of Proverbs. There, it appears in no fewer than six different iterations of varying militancy.

“Foolishness is bound in the heart of a child,” Proverbs 22:15 instructs, “but the rod of correction shall drive it far from him.” And if you don’t beat children, Proverbs 23:14 says, they will go to hell.

The result of such ancient belief is a hardened discrimination that no still-airy political promise will easily overthrow. To understand how hard, it is worth considering that Parliament finally banned the beating of prisoners in 1972. But that same right to basic physical security still eludes our most vulnerable and emphatically innocent citizens. Twenty-first century Canada is more scrupulous about protecting murderers.

“Children are the only group of citizens in this country we can permissibly assault,” Lynn notes. That fact, she adds, is “outrageous and appalling.” But as every reformer knows, resistance to changing it remains fierce.

Scientific research continues to be the reformers’ best ally. “It’s crazy how much research there is showing what a risk corporal punishment is, even mild and infrequent punishment,” says Associate Professor Joan Durrant of the University of Manitoba, a leading child development researcher and advocate for the repeal of Section 43. “The controversy is in the public,” she adds. “It’s not in the research anymore.”

The earliest scientific studies of spanking showed that it is not especially effective at “correcting” children, and it is more likely to increase their own aggression and promote antisocial behaviour. More recent studies have extended the concern. “Physical punishment is associated with a range of mental health problems in children, youth and adults, including depression, unhappiness, anxiety, feelings of hopelessness, use of drugs and alcohol, and general psychological maladjustment,” Durrant and Ron Ensom wrote in a 2012 article in the Canadian Medical Association Journal. “Researchers are also finding that physical punishment is linked to slower cognitive development and adversely affects academic achievement,” they added. 

Responding to overwhelming evidence that hitting children does far more harm than good — that spanking children to punish bad behaviour is tantamount to rewarding them with cigarettes for good behaviour — 49 countries worldwide have now banned the practice (See sidebar, opposite page).

“Forty-nine!” Durrant exclaims. “It’s really hard to understand what’s taking us so long. We’re so ready, and it’s just a strange thing to be lagging so far behind other countries.”

The biggest hurdle facing repeal is a commonly held belief in a strong distinction between salutary spanking and harmful abuse. “Parents know the difference between spanking as a disciplinary measure and child abuse,” the conservative Institute of Marriage and Family Canada declared in an op-ed in 2007. “In the first, a loving parent uses some small, symbolic level of force as an incremental measure among others when a child misbehaves; in the latter, a child is subjected to violent force for no reason, or to vicious verbal assaults, or neglect. Even parents who would never spank their own children understand that difference.”

The problem is defining that theoretical bright line in real life. A study on child abuse rates and characteristics of welfare children in Canada, conducted in 1998, found that three-quarters of all substantiated cases of child abuse in the country escalated from physical punishment. “Another large Canadian study found that children who were spanked by their parents were seven times more likely to be severely assaulted by their parents (e.g., punched or kicked) than children who were not spanked,” write Durrant and Ensom in the CMAJ.

“There is no bright line, and we’ve got a lot of empirical evidence that shows why that’s the case,” adds Anne McGillivray, a retired law professor at the University of Manitoba who played a key role in advancing the ultimately failed 2004 Supreme Court case.

As if the mounting evidence weren’t itself enough to fatally blur any lingering confusion between spanking and abuse, Canadians are facing a far more direct challenge to traditional beliefs. Few tragedies in human history could better demonstrate how easily well-intentioned physical discipline slides into horrendous abuse than the story of Canada’s residential schools for Aboriginal children. And nothing could lend greater moral force to the campaign to repeal Section 43 than “Call to Action No. 6” of the Truth and Reconciliation Commission.

“If there are any children who suffered from the fact that this was considered legal to do, absolutely those children did,” McGillivray observes.

Official rules governing corporal punishment at residential schools were actually very strict, according to McGillivray, who studied the records of several schools in western Canada as part of her research. Those records showed that official “spankings” occurred precisely two times a year at every school. In truth, of course, outright abuse was rampant.

Parents who spank their children might well resent being lumped together with the sort of predator that too frequently stalked residential schools. But as the Supreme Court demonstrated in its own attempt to draw the distinction, the two figures can be hard to separate legally. Far from clearing up controversy, its landmark 2004 decision instead complicated the interpretation of Section 43, sowing fresh doubt among parents, teachers and child protection agencies about the crucial difference between permitted spanking and criminal assault.

“Section 43 sends the message that a child’s physical security is less worthy of protection, even though it is seen as a fundamental right for all others,”

Recognizing that there was no consistency in how the law was being applied — notorious abusers were dodging conviction through Section 43 — the court did its best to plug the loophole. Chief Justice Beverley McLachlin employed ingenious logic to read modern restrictions into the ancient statute, concluding that Section 43 in fact does not justify the battery of infants under two as well as children over 12; that it does not permit beating any child on the head, nor the use of an implement other than hands when hitting children. “Generally, s. 43 exempts from criminal sanction only minor corrective force of a transitory and trifling nature,” she wrote.

Contrary to decades of lower court understanding, she added, Section 43 does not condone punishment — only “correction.” Therefore, parents who hit their children in moments of frustration and anger are guilty of assault, according to the court, whereas those who spank deliberately and in cold blood are protected.

Critics have accused the decision of being confusing at best. “It’s incoherent,” says McGillivray. “It makes no legal sense whatsoever.” More importantly, according to McGillivray’s research, court-sanctioned child abuse continues to occur in its aftermath.

Although the top court did restrict the overly free use of Section 43, critics say its continued existence has sent a mixed message to lower courts, parents and child protection workers, making it difficult to obtain convictions even in cases severe assault. “It hasn’t solved anything,” McGillivray says.

But the biggest disappointment to critics — as well as the three judges who dissented from the majority decision — is that the ruling ignored the constitutional rights of children. “Section 43 sends the message that a child’s physical security is less worthy of protection, even though it is seen as a fundamental right for all others,” Madam Justice Marie Deschamps wrote in her dissent from the majority opinion. Deschamps denounced the law as “a throwback to old notions of children as property [that] reinforces and compounds children’s vulnerability and disadvantage by withdrawing the protection of the criminal law.”

Deschamps went further, saying Section 43 “perpetuates the notion of children as property rather than human beings,” she wrote, “and sends the message that their bodily integrity and physical security is to be sacrificed to the will of their parents, however misguided.”

For Durrant, the actual motive underlying all arguments in favour of spanking is parental fear of losing an absolute power held with little accountability. “We are always saying children have to take responsibility for their actions, we have to make sure they face consequences, and so on,” Durrant says. “And yet when it comes to us hurting children, we don’t want to have to face any consequences. I find that pretty disturbing.”

It was just such thinking that inspired Sweden to begin to repeal its own version of Section 43 almost six decades ago. “The Swedes did it because they believed it was the right thing to do,” says Durrant. “They didn’t wait for research, they didn’t wait for attitude change. They considered it a human rights issue.”

Sweden’s effort to promote rights-based parenting seems to have worked. “They have a very low crime rate and a very low youth delinquency rate,” says Durrant, who has studied Swedish child welfare policies extensively. “Youth are less involved in crime after the ban than before the ban. . . . Compared to Canada and most other industrialized countries, they have very positive outcomes.”

And although reports of abuse have increased in Sweden since its final ban on corporal punishment in 1979, as they have in many other Western countries, the prosecution rates have not gone up. The feared tsunami of frivolous, potentially home-wrecking prosecutions of trivial breaches never materialized.

The key to Sweden’s success is “not punishment or jailing or anything like that,” according to Durrant. Rather it is a whole network of child welfare and education measures more comprehensive “than anything we’ve ever dreamed of here.”

Working with colleagues in Sweden, Durrant has developed a training program for parents that outlines the harms of spanking and teaches new techniques of positive discipline. It is now used around the world, including Durrant’s hometown of Winnipeg, where Somali-Canadian parents seeking non-violent strategies for reining in troublesome children are particularly receptive. According to Abdikheir Ahmed, a student turned instructor, the program is regularly oversubscribed.

“Everybody tells them, ‘In Canada, you don’t do this, you don’t do that,’ but they have . . . no alternatives to what they knew back home,” says Ahmed. “They’re looking for an alternative, and this fits very well.”

All Canadian parents, not just newcomers, could benefit from similar training. And the information is powerful. A recent study at the University of Ottawa found 38 percent of people surveyed were initially in favour of repealing Section 43. But when presented later with research findings on the effects of spanking and its proven links to abuse, two-thirds of the study participants expressed support for repeal.

Repealing Section 43 will only be a first step on a long road to making Canada a safer place for children, according to Durrant. “There should be a whole campaign around children’s learning and child development. There should be a real focus on children’s well-being and why it matters so much, and a real effort to help parents parent positively and not hurt their children.”

But none of that will make the difference it should as long as the law justifies assault against children. “All of the anti-violence efforts, all of the parent support and education efforts, all of that gets undermined when the law contradicts them,” says Durrant.

Fewer Canadians spank their children than they did a generation ago. But significant numbers still do. There’s little doubt repealing Section 43 will change the country for the better.

“It would be a clear standard,” Durrant says. “And we as Canadians could hold our heads a little higher, knowing that we had stood up for those who have no political voice and are so completely vulnerable and dependent, and said, ‘We are going to protect these little ones.’”

John Barber is a journalist in Toronto.

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