Everyone in civil society instinctively knows you can’t hit your spouse. You can’t punch your waitress. You can’t kick your cab driver. We know these things without having to read section 265 of the Criminal Code of Canada that governs assaults. And yet, if you never dusted off the old Criminal Code and turned to section 43 you might not assume that it’s OK for a parent, schoolteacher, or anyone “standing in the place of a parent” to use “force by way of correction” that is “reasonable under the circumstances.”
The so-called “spanking law” has been challenged and upheld as constitutionally valid. It has been attacked and whittled down in courts such that it now excuses only minor corrective force of a transitory and trifling nature. It only applies to children over the age of two and under the age of thirteen who have been deemed incapable of benefitting from corrective discipline (see Canadian Foundation for Children, Youth, and the Law v. Canada (Attorney General),  1 S.C.R. 76). But what if the research suggests that no one benefits from spanking a child of any age for any reason?
A recent editorial by John Fletcher in the Canadian Medical Association Journal cites a growing body of evidence that suggests spanking children is “an ineffective method of child discipline” that breeds harmful outcomes rather than inspiring corrective behaviour. An analysis of the last twenty years of research found that spanking is associated with increased levels of child aggression and is no better than other non-violent techniques in eliciting childhood compliance. With medical evidence highlighting the harm in exercising corrective discipline while demonstrating that alternative parenting methods are equally capable of modifying a child’s behaviour, the rationale of the Supreme Court’s majority in the Canadian Foundation for Children case appears to be balanced on shaky ground. How can the use of a physical assault, even a trifling one, ever be “reasonable under the circumstances” if the medical evidence demonstrates that a “time out” is at least equally effective in correcting a child’s behaviour? Does a parent have an inalienable legal right to choose a method of discipline that, but for its use on a child, would constitute a crime? Or, has the time come for Parliament to take a sober second look at s. 43 of the Criminal Code.
At its core, resorting to spanking is a clear admission of defeat by the parent. A parent who spanks has allowed emotion, temper, and frustration to get the better of them thus clouding their judgment. Any after-the-fact justification by resort to the shield of ‘corrective discipline’ is merely a mask worn by the failed parent to hide their shame. No one sets out, calmly and with a level-head after having weighed and considered the alternatives, to smack some ‘corrective discipline’ into a child under twelve. Anyone who had the good sense to stop and think about it would never have reached the point where violence was chosen as the antidote to misbehaviour. Spanking is necessarily born out of spontaneous over-reaction.
A parent who strikes a child under the guise of corrective discipline is difficult to distinguish from an abusive husband who slaps his wife because “she had it coming” or had to be “taught a lesson”. A parent’s duty to care for and educate their child ought to create a greater responsibility to abhor the use of violence rather than excusing it.
The oft-heard refrain, “I was spanked and turned out fine” has always struck me as a particularly poor justification for abhorrent conduct. I’ve met persons who were robbed, threatened, assaulted, or victimized by any number of other crimes. They all turned out fine. But do we really want to base our foundations of criminal law on the old school-yard rule, “no harm, no foul”? The inevitable frustrations experienced by parents facing troublesome children are appropriate factors to consider in the sentencing analysis, but they cannot continue to act as a complete defence to what is in essence an assault on a helpless child.