(Corporal punishment).

Imagine for a moment that you have taken a trip into space and discovered life on another planet -- let's call them skyfolk. You decide to research their customs and laws. You notice that there are two main types of skyfolk: one group -- we'll call them Skyfolk A-types -- are large, strong, move easily across the landscape, have a complex language system, and show that they understand the nature of their planet in detail. Skyfolk As can do pretty much anything they want as long as one Skyfolk A does not hurt any other Skyfolk A. The second group -- Skyfolk B-types -- are small and weak, may have some difficulties with movement, have a much simpler use of language, and a simpler understanding of the planet. Skyfolk Bs are required to do what the Skyfolk As tell them to, and if they don't, the law of this planet says that a Skyfolk A can hit a Skyfolk B to teach the B how to behave. As a space explorer, you might find it odd that the larger stronger Skyfolk are protected by law from being hit while the law specifically allows the smaller weaker Skyfolk to be hit by the stronger ones. Surely an advanced civilization would want the opposite to be true.

However, if you have been following the debates about spanking and S. 43 of Canada's Criminal Code, you will recognize that the situation described above is similar to the situation regarding children under Canada's criminal law.

Let's look at the wording of a couple of sections of the law. First, the definition of assault: "A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly ..." That seems remarkably straightforward, although there are of course exceptions. Now look at S. 43: "Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or a child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances."

In other words, actions that would clearly fall within the definition of assault if carried out by one adult against another are specifically permitted by law when carried out by an adult against a child -- providing they are done in order to correct or teach the child.

In the last year, this question of the use of force to correct children has been in the news and in the courts a number of times. In the summer of 2001, seven children were taken from their home by the Children's Aid Society. The parents were members of the Aylmer Church of God that believes in the use of corporal punishment -- spanking with the hand or a switch, belt, or strap. The children were taken into the care of the Children's Aid when the parents refused to promise not to hit the children in the future. After a court hearing, the children were returned to the family home when the parents agreed not to use physical discipline. In this particular situation, the matter was not being dealt with under S. 43 of the Criminal Code, but under provincial child protection legislation.

A second case was recently decided in Prince Edward Island. In this case, a former nun was charged under the Criminal Code with assaulting five children in her care at a religious commune. The five children testified "that Poulin often struck them [with a wooden paddle] without telling them what they had done wrong." In this case, the trial judge convicted Poulin of assault. Justice Jenkins said "Poulin's use of force exceeded what was reasonable under the circumstances. She hit too frequently, she applied too much force, and often too many strikes. She went beyond spanking to beating the children. Nor was her use of force for the purpose of correction, because the children failed to associate the force with correction or failed to understand when the force was being used for such a purpose." So here was a case where the defence of S. 43 was not sufficient to excuse the level of force being used.

Finally, there was the constitutional case brought by the Canadian Foundation for Children, Youth, and the Law (CFCYL) in Ontario, claiming that S. 43 violates the Charter of Rights and Freedoms. In this case, the CFCYL brought evidence from experts in child protection, children's rights, and social science research to indicate that corporal punishment of children under two is both wrong and harmful; that corporal punishment of teenagers is "not helpful and potentially harmful"; that corporal punishment using objects such as belts, rulers etc "is potentially harmful both physically and emotionally and should not be tolerated," among other things. While the judge noted that the experts were largely agreed on these points, he nevertheless found "it is impossible to determine with scientific precision whether corporal punishment leads to negative outcomes or whether it is simply a factor among other negative environmental factors that cumulatively impact negatively upon a child's future."

Further, he found that even in countries, such as the Scandinavian countries, that have prohibited corporal punishment, they have used the civil not the criminal law to deal with the issue. He argues that criminalizing parents for the use of reasonable force for correction would unduly interfere with the private relationship between parent and child. He also suggests that provincial child protection legislation, such as that used in the Ontario case, is a more appropriate way of dealing with issues of child protection. And those who argue on behalf of retaining S. 43 would say that the two cases discussed above illustrate that the current system does work to protect children. Still, this leaves us with the situation where it is left to the courts to decide -- after children have been punished physically -- whether the punishment was reasonable force for corrective purposes under the particular circumstances.

This reactive approach to corporal punishment comes at a time when researchers in child development are providing more and more evidence that even rare spankings may have long-term harmful effects. Dr. Harriet MacMillan of McMaster University Medical School led a study, for example, that found "those who had rarely been slapped or spanked were still 50 per cent more likely to develop drug dependence or anti-social behaviour than those who had never been spanked."

Meanwhile, neurobiologists are finding that there are actual physical differences in the brains of children who have suffered physical or sexual abuse, or neglect. Depending on the age of the child and details of the abuse or neglect, the children's brains may be significantly smaller than their non-abused peers. Brains structures of the limbic system -- that part of the brain that deals with emotional and sexual behaviour and the ability to form attachments with others -- are permanently altered. In other words, once this Humpty Dumpty has fallen, not all the kings' horses nor reactive courts will put the abused child's brain back together again.

This issue of LawNow examines recent developments in family law. We can see every day, in the results of the 2001 Census, and certainly in our law, that our ideas about what families are and how they should operate are changing. It is no longer considered appropriate for wives to be subject to corporal punishment. Divorce is no longer considered sinful. Thinking about mediating marital disputes and arrangements for custody, access, and support is changing. Perhaps it is time that our legislators remove the notion of justifiable assault on children from our criminal law and make it a positive duty for parents and teachers to protect children from corporal punishment.