Supreme court upholds spanking but sets limits for parents and teachers.

OTTAWA -- The Supreme Court of Canada says parents can spank children, who are older than two years of age and are not yet teenagers while teachers "may reasonably apply force to remove a child from the classroom or secure compliance with instructions, but not merely as corporal punishment."

The Court's decision stemmed from an appeal by the Canadian Foundation for Children, Youth and the Law, which wanted corporal punishment of children to be outlawed. The Foundation in 1998 sought a declaration in Ontario that Section 43 of the Criminal Code violated three sections of the Charter of Rights and Freedoms and contravened Canada's obligations under the United Nations' Convention on the Rights of the Child.

In its case, the Foundation pursued the position that Section 7 of the Charter, which provides for the security of the person along with Section 12, which protects the individual from cruel and unusual punishment and Section 15, that guarantees equality, were all violated by Section 43 of the Criminal Code. Section 43 provides a limited defence that a parent, teacher or person, who is acting in the place of a parent, is justified in using force to correct a child who is under his or her care, provided that the force used is reasonable in all circumstances.

"I am very heartened by all those narrowings and restrictions, but I am somewhat disappointed that the court did not recognize children as human beings with equal rights," said the foundation's spokesperson Martha Mackinnon. In 2001 the Supreme Court of Ontario tried a case of parents spanking Children. The Ontario court upheld the constitutionality of Section 43, and found that it was consistent with Canada's obligations under the U.N.'s Convention. However, the Foundation appealed this decision, and in January 2002, the Ontario Court of Appeal supported the lower court's decision, dismissing. the appeal. This led the Foundation to appeal the Ontario Court of Appeal's decision to the Supreme Court of Canada, resulting in the Court's recent ruling and dismissal of the Foundation's appeal.

The Supreme Court in its majority decision found that section 43 of the Criminal Code is constitutional and does not violate a child's rights to security of the person, equality and is not cruel and unusual punishment. As well, the Court held that section 43 ensures that the criminal law applies to any use of force that harms a child, but does not apply where the use of force "is part of a genuine effort to educate the child, poses no reasonable risk of harm that is more than transitory and trifling, and is reasonable under the circumstances."

Although most of the Supreme Court Justices concurred with the decision, there were dissenting opinions, including the view shared by two justices, Justice Louise Arbour and Justice Marie Deschamps, who thought the exemption to the Criminal Code was too broad to protect such a vulnerable group as children.

Justice Ian Binnie, in a dissenting opinion, thought that the Section 43 exemption ought to apply to parents but not to teachers, saying "the logic for keeping criminal sanctions out of the schools is much less compelling than for keeping them out of the home."

However, in the majority decision, the Court said there is a "solid core of meaning" for defining 'reasonable under the circumstances', "sufficient to establish a zone in which discipline risks criminal sanction." The Court also noted that "degrading, inhuman or harmful conduct is not protected" while the use of objects for corporal punishments or "blows or slaps to the head is unreasonable."

Representatives of the Attorney General of Canada expressed satisfaction with the decision. The AGC argued that section 43 reflects a fair balance between the interests of children, parents and Canadian society. Although the federal government does not condone the physical discipline of children, neither does it support the criminalization of parents for disciplinary conduct which is undertaken in a reasonable way and takes into account the needs and best interests of children.

Among the intervenors were: Focus on the Family (Canada) Association, Canada Family Action Coalition, the Home School Legal Defence Association of Canada and REAL Women of Canada, together forming the Coalition for Family Autonomy, Canadian Teachers' Federation, Ontario Association of Children's Aid Societies, Commission des droits de la personne et des droits de la jeunesse, on its own behalf and on behalf of Conseil canadien des organismes provinciaux de defense des droits des enfants et des jeunes, and Child Welfare League of Canada.