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(Jun 02, 2008) In 2004, Canada's Supreme Court ruled that the exception to the assault provisions of the Criminal Code allowing for limited corporal punishment of children was not unconstitutional on the grounds that it subjected children to cruel and unusual punishment or denied their rights to equality. (Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76 (official source)). This exception states that "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 child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances." (Criminal Code, R.S.C. c. 46, s. 43 (1985, as amended) (official source)). The Court did place some limitations on this section by finding that corporal punishment of children under the age of two or above the age of twelve is unreasonable and that what constitutes reasonable corrective discipline is partly determined by social consensus. However, it did not rule that all physical discipline of children is unconstitutional.

Corporal punishment has been banned by school boards throughout Canada and is no longer a major issue. However, opinions on parental discipline continue to be divided. In response to the Supreme Court's 2004 decision, Canada's Senate passed an "anti-spanking" bill on June 18, 2008, and sent it to the House of Commons. This bill would amend the Criminal Code to read as follows:

1. Every schoolteacher, parent or person standing in the place of a parent is justified in using reasonable force other than corporal punishment toward a child who is under their care if the force is used only for the purpose of

(a) preventing or minimizing harm to the child or another person;

(b) preventing the child from engaging or continuing to engage in conduct that is of a criminal nature; or

(c) preventing the child from engaging or continuing to engage in excessively offensive or disruptive behaviour.

2. In subsection (1), "reasonable force" means an application of force that is transitory and minimal in the circumstances.

(Bill S-209, 39th Parl. 2d Sess., http://www2.parl.gc.ca/content/Senate/Bills/392/public/S-209/S-209_3/S-209_text-e.htm (last visited June 20, 2008).

Canada's Senate is an appointed body and the majority of its current members were appointed by the Liberal Prime Ministers in the former government. The current government is a minority government in which the Conservatives hold the largest number of seats. The Conservatives appear to be opposed to changing the law. The Senate bill could still be passed by the combined opposition parties, but even the sponsor of the bill believes that its greatest chance of being enacted is through a Liberal victory in the next general election. However, even if the Liberals were to form a government, it is not clear that the bill would be assured of enactment as opinions on it appear to be divided even within that party. (Tim Naumetz, Anti-Spanking Bill Heads to House of Commons After Senate Approval, CANADIAN PRESS, June 18, 2008, available at http://ca.news.yahoo.com/s/capress/080618/national/spanking_bill).

Author: Stephen Clarke More by this author
Topic: Families More on this topic
Jurisdiction: Canada More about this jurisdiction

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Last updated: 06/02/2008