Not on the head. Not with a belt, ruler or other object. Not if a child is younger than 2 or older than 12. Not if a child has disabilities that inhibit their understanding. Only by a parent or a person standing in the place of one. Not when that adult is angry or exacting retaliation. Only with a “transitory and trifling” level of force.

Those are the rules that delineate how physical punishment – such as hitting or slapping – can be legally used on children in Canada.

While these specific rules stem from a 2004 Supreme Court decision, the legal protection for parents to physically punish their children is much older. It comes from a section of law that has remained largely unchanged since 1892 – despite decades of efforts to secure its repeal.

Over the past year, individual parliamentarians have again taken aim at the protection, which is contained in Section 43 of the Criminal Code; bills to repeal it are now before both the House and Senate.

“Many people are quite surprised that such a law exists,” said Senator Stan Kutcher, a psychiatrist with a specialization in child and adolescent care, who introduced the Senate bill.

Prior to these efforts, individual MPs and senators introduced 17 bills – over a period of nearly 30 years – seeking to repeal or amend Section 43, according to information from Mr. Kutcher’s office. Previous bills have run into timed-out parliaments and vociferous opposition campaigns, with governments of the day having little apparent interest in wading into a contentious, family-centred debate.

In the past, attempts to repeal Section 43 have spurred resistance from teachers’ groups, who feared they could face criminal punishment for using any degree of force, such as breaking up a fight, as well as from religious groups, who rejected government involvement in how punishment is meted out to children.

Despite previous failures, the parliamentarians are hopeful this time around. They say attitudes have changed. Sixty-five countries – such as Costa Rica, South Sudan, Japan, France and Sweden – have banned the physical punishment of children. And they point out that the research has advanced.

For instance, a 2016 meta-analysis published in the Journal of Family Psychology, which examined 75 previous studies, found that the practice commonly known as spanking was associated with a host of negative outcomes in childhood, including more aggression, more anti-social behaviour and more negative relationships with parents.

Concern over Section 43 dates back nearly half a century.

In 1976, then-minister of health and welfare Marc Lalonde said the section should be studied for removal. In 1982, a government-commissioned report called for repeal, as did a 2007 Senate report, which called for repeal within two years.

In 2015, the Truth and Reconciliation Commission (TRC) made repealing the section one of its 94 Calls to Action, given the dark history of physical abuse of Indigenous children in residential schools. It called physical punishment a “relic of a discredited past.”

Murray Sinclair, a lawyer who led the commission and later served as a senator, said Section 43 allowed those who were proven to have physically abused children in residential schools to evade consequences.

As a senator, Mr. Sinclair took over sponsorship of a bill to repeal the section, but after it was referred to committee, in 2018, the bill died.

Mr. Sinclair said that no government has ever moved to repeal the section.

“The government has just allowed the courts to redefine what Section 43 covers,” he said.

Chantalle Aubertin, press secretary for Justice Minister David Lametti, said the government “continues to explore” how to respond to the Call to Action to repeal Section 43, but did not directly answer whether the government supports a repeal.

Mr. Kutcher’s bill, which was introduced in June, 2022, is now in second reading.

As debate began in October, Senator Don Plett was quick to speak against it.

“I had a phys-ed teacher hold me down on a chair, physically, while the principal beat the tar out of me with a leather belt. And here I am. I’m still a senator,” he told the Senate.

Mr. Plett said efforts to repeal have often focused around very forceful examples. “That on the bum” – he smacked his hands together – “isn’t forceful, that’s ‘move, you’re holding up traffic,’ “ he said.

He questioned how, without Section 43, parents could still, say, wrangle a child into a car seat.

Mr. Kutcher said that without Section 43, forcing a screaming child into a car seat wouldn’t become a criminal act. Rather, he said, it would become prohibited to “whack” your child after getting them in the car seat.

He added that if a parent or teacher uses “reasonable force” to stop a child from hurting themselves or someone else, the law already has remedies for that.

In November, Senator Rosemary Moodie, a pediatrician and neonatologist, lent her support to the bill, acknowledging its personal nature.

“I know many of us, even here in this chamber, have dealt with corporal punishment when we were kids,” Ms. Moodie told the Senate. “It may well be that we are where we are despite that treatment, not because of it.”

NDP MP Peter Julian, who, in May, 2022, introduced the House bill for repeal, said he finds it “bizarre” that the government has not taken action on repeal. He noted that his bill, which is in first reading, could be easily incorporated into any legislation the government puts forward.

“The question is, why is the government refusing to act when the work has already been done for them?” he said. “It is, I think, something that the government is choosing not to implement.”

Former NDP MP Svend Robinson, who, about 30 years ago, introduced several bills to repeal Section 43, said he received powerful pushback from the religious right. He recalled often hearing the phrase, “spare the rod, spoil the child.”

“It’s sad that we are still fighting for this change in law after all these years,” Mr. Robinson said.

Asked why he thinks repeal has proved elusive, Mr. Robinson replied: “Children don’t vote and it’s children we’re seeking to protect in changing this law.”

In 2004, Section 43 boiled into a tense national debate, when, in a split decision, the Supreme Court upheld the law. The ruling did, however, bring about the current limits on the section.

For instance, the decision stated that teachers cannot use physical punishment, though they may “reasonably apply force to remove a child from a classroom or secure compliance with instructions.”

The case was brought by the Canadian Foundation for Children, Youth and the Law (now called Justice for Children and Youth) after Ailsa Watkinson, a professor at the University of Regina’s Faculty of Social Work, obtained funding to challenge the section through the Court Challenges Program. Now retired, she’s writing a book about corporal punishment.

In a study about a year and a half after the court decision, Prof. Watkinson found that while respondents knew about it, they couldn’t give examples of the limits it provided.

“There was such confusion over the decision – and there still is,” she said.

Last fall, Mr. Kutcher told his Senate colleagues that, in researching his bill, he spoke with “scores” of teachers around the country and many were shocked to learn that the section existed.

This was the case with Michael Anthony, a secondary teacher with the Toronto District School Board, who has taught for nearly 20 years. He was unaware of Section 43 until several years ago, when he was talking about the TRC’s Calls to Action with his students.

“I was very surprised to see that it was actually something that was directed towards me as a schoolteacher,” he said. “And my students were equally surprised to see what they could be on the receiving end of.”

Mr. Anthony said there’s a possibility that a teacher who simply reads the section – without understanding the Supreme Court decision – could erroneously think they are permitted to use physical punishment.

“It is so unnecessary to provide schoolteachers with this defence,” said Mr. Anthony, who has recently been writing to senators, urging them to support Mr. Kutcher’s bill.

Sonia Vohito, a legal-policy specialist with the Global Partnership to End Violence Against Children, said that while the prohibition against physical punishment is often seen as a Scandinavian trend, bans have been enacted around the world.

She said one common fear is that bans could unleash prosecutions against parents. But, she noted, existing research has not corroborated this. A 2021 review published in The Lancet – of 69 studies on the physical punishment of children – found no evidence that prohibition resulted in an influx of criminal outcomes.

The effect that bans do have, Ms. Vohito said, is that parents tend to stop using physical punishment.

She also said it’s surprising that Canada still allows this type of punishment, particularly given its status as one of the partnership’s “pathfinding” countries, which commit to action to end violence against children.

“You would have thought Canada would be a leader in this department.”

MARSHA MCLEOD
The Globe and Mail, January 23, 2023