Spanking law has to go, doctors' editorial argues

The Canadian Medical Association Journal says it's time to do away with the Criminal Code's so-called spanking law.

A strongly worded editorial in the journal Tuesday calls for the repeal of Section 43 of the Criminal Code, which gives parents and teachers a legal defence when they physically discipline children.

"It is time for Canada to remove this anachronistic excuse for poor parenting from the statute book," editor-in-chief John Fletcher wrote in a signed editorial.

'To have a specific code excusing parents is to suggest that assault by a parent is a normal and accepted part of bringing up children. It is not' —Canadian Medical Association Journal editorial

The editorial will likely reignite debate on a controversial topic that has inflamed opinion for decades.

The Supreme Court of Canada upheld the Criminal Code provision by a 6-3 margin in a landmark 2004 ruling.

The high court ruled that the provision did not infringe a child's right to security of the person under the Charter of Rights and Freedoms and does not constitute cruel and unusual punishment.

Several private members' bills to ban corporal punishment have failed in the House of Commons and Senate, most recently in 2008.

In the editorial, Fletcher argues that parents need to be educated on how to discipline their children.

He said the Criminal Code needs to be amended because it tells parents that physical punishment is an acceptable way to discipline children.

"Although it is not necessary to make spanking a crime to encourage alternative approaches to parenting, Section 43 of the Criminal Code of Canada sends the wrong message, stating, '... a parent is justified in using force by way of correction ... if the force does not exceed what is reasonable under the circumstances'."

Police have discretion

The editorial said that police already have discretion to decide when an assault is trivial, but argued that "any bias" should be aimed at vulnerable children.

"To have a specific code excusing parents is to suggest that assault by a parent is a normal and accepted part of bringing up children. It is not. While Section 43 stands, it is a constant excuse for parents to cling to an ineffective method of child discipline when better approaches are available."

A Library of Parliament analysis of the issue concluded that there was no national consensus on this issue.

It noted that the Supreme Court and the United Nations committee on the rights of the child have divergent views on Section 43.

The UN panel called for the removal of the section.

In 1984, the Law Reform Commission of Canada recommended the repeal of Section 43 as a defence for teachers, but said it should remain for parents, "primarily out of concern that the criminal law would otherwise unduly encroach on family life for every trivial slap or spanking," the analysis said.

The library also found that public opinion on the topic has also been divided.

It said that a 2003 poll found 69 per cent of Canadians favoured repealing Section 43 for teachers. But only 51 per cent said it should be removed for parents.