The Decibel - Why physically disciplining kids is still legal in Canada

Episode Date: January 23, 2023

In Canada, the criminal code allows for physical discipline of children, in certain circumstances. For almost half a century, advocates have been fighting to repeal the law, saying it violates children’s rights. Seventeen bills have been introduced in Parliament trying to strike the law down – and all of them have died before they could change the criminal code.Now, two bills trying once again are before Parliament. The Globe’s Marsha McLeod explains why the law exists, and the vocal groups who’ve fought to keep it on the books.Questions? Comments? Ideas? Email us at [e-mail]

Because we're always using the extreme when we do this about how forceful we are. That's Senator Donald Plett, debating a section of Canada's criminal code that allows for the physical disciplining of children. That on the bum isn't forceful. That's move. You're holding up traffic. And so we need to talk about what's legal now. For decades, there have been a number of attempts to repeal this law, but so far none have been successful. Some of the corporal punishment that I received, nobody would want to have. Senator Stan Kutcher is one of the people trying to repeal this law now.

And I made a vow, as many others here probably did, that when I was gonna parent, I wasn't gonna do the same thing. The Globe's Marsha McLeod has been reporting on this issue and joins us from Ottawa. I'm Mainika Raman-Wellms and this is The Decibel

from The Globe and Mail. Marsha, thank you so much for being here. It's great to finally have you on the show. It is, yeah, I appreciate it. I was frankly surprised to learn that Canada still has a law that allows some physical discipline of kids. Can you just tell

me what does that law actually say? Well, first of all, I think you're probably not the only person who has some of that surprise. But the law, what it says is, and I'm going to quote here, every school teacher, 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 it was called, it was labeled something a little bit different, Discipline of Minors. And the last line is a little bit different, but it's virtually the same. And you said since 1892, which is when the criminal code was first established, right? Correct. Yeah. This is Section 43 of the criminal code, currently as it stands in the law now.

And, you know, whenever we talk about this section, there's an incredibly important Supreme Court case in relation to it, which came down in 2004. It did uphold the law, but it provided a number of limits on how it can be applied, basically defining what is reasonable or what the court at the time said was reasonable, because that is not defined in the law. And what the court ended up coming down with is sort of a suite of restrictions, you know, that you can't hit a child on the head, you can't hit them with a belt, a ruler, another object, if they're younger than two, older than 12, not if a child has, say, a disability that inhibits their understanding, not when that adult is angry or exacting retaliation. They talk about how the discipline or the physical force that is used can't be, say, greater if the behavior that the

child did was worse. You know, they talk about their sort of line is that the force must be of a, quote, transitory and trifling nature. Transitory and trifling? What is that? Like, I don't know, like passing and minor, essentially? I mean, I think a problem with a lot of this is it's not exceptionally clear. But, you know, something that basically the government of Canada has said in interpreting this and it's information online about the decision is that, like, for instance, leaving a mark or leaving a bruise, that's not considered transitory and trifling. Who is the law protecting?

It's a really good question because, as one legal expert said to me, part of the problem is that it is open to interpretation. And so when we have the language of schoolteacher, parent, or person standing in the place of the parent, the Supreme Court has said very clearly that schoolteachers are not permitted to use physical punishment, some people call it corporal punishment, against students. So that was one really important part of the Supreme Court case. And so that leaves us with basically parents and people standing in the place of parents. What the case law has shown that person standing in the place of the parent means somebody who really has taken all the roles of the parents, is fully standing in their place. So not a babysitter, not another relative, not a nanny. And as well, there are separate regulations that prohibit foster parents from using physical punishment.

Why are we talking about this issue now, though, Marsha? So right now, there are two bills, one in the House and one in the Senate, to repeal Section 43. And both of those bills are very simple. They just say, repeal Section 43 of the Criminal Code. And one of them was brought forward by Senator Stan Kutcher and another by NDP MP Peter Julian. And both of these bills, they're not government bills. They've been brought by individual parliamentarians, and both were introduced last spring. Many recommendations have been made, actually, for Canada to repeal this section of our law.

Going back to even 1976, when a Canadian minister said this law should be really studied for whether it should exist in our country. In 82, a government commission report recommended repeal. The Senate itself in a committee study recommended repeal in 2007. They said that should have been done by 2009. A UN Committee on the Rights of Children recommended in 2012 that Canada repeal this, saying they were gravely concerned about the fact that it still exists on our books. So what actually is the argument then to repeal Section 43? I think the big argument amongst both these parliamentarians as well as longtime child advocates is that, A, physical punishment doesn't do what perhaps the hope is that it would do, which is improve child behavior.

That's what the research has really emerged as being the consensus. And as well, it's that research has evolved to show that it does harm children. And as well, I think people would say that research has shown that banning physical punishment has led to its decreased prevalence in a nation. So around the world, there are 65 countries that have banned physical punishment. And what some research has shown is that there's been quite significant drop-offs in its use and not because there's been some huge uptick in criminal prosecutions.

In fact, that's found to not have been the case, but rather because it's just the message is really clear. This is not permitted. So it's not like when this kind of law is repealed, there's all of a sudden an influx of people being charged with corporal punishment or physical punishment here. That doesn't seem to be the case in around the world. No, it doesn't. And that's something that actually was one of the focuses of a 2021 review. It was a review of 69 studies. Those studies were from nine different countries. And this was published in The Lancet, a peer-reviewed journal. And they found that there was no evidence that in the studies that they looked at,

no evidence to suggest that banning physical punishment led to, say, an influx of caregivers into criminal justice systems. And that study as well, they say, quote, you know, the overwhelming conclusion from the studies that we examined is that physical punishment predicts an increase in behavior problems over time. Can I ask you a little bit about that then? Because you talked about the harm it can cause children. And when you're referring to the increased problems over time, what does that mean? Yeah. And there actually is another really good study which, again, took a look at other studies and specifically actually of what people commonly refer to as spanking. Because I think one of the criticisms of some of this research is, oh, maybe the research is just looking at very severe cases of physical punishment and saying that has harms. So this study in particular really tried to look at like cases where they called sort of like normal spanking, what people would just indicate as sort of their run of the

mill understanding of that. And here's what they found that spanking was associated with more aggression, more antisocial behavior, more mental health problems, more negative relationships with parents, negatively associated with lower self-esteem. And they say the largest sort of thing they could determine was that the more children are spanked, the greater the risk is that they will be physically abused by their parents. Wow. Okay. I understand also that the idea of repealing Section 43 came up in the 94 calls to action of the TRC, the Truth and Reconciliation Commission. Can you explain that? Yeah. And just maybe for folks for whom this is a really sensitive topic, I'll touch on in some detail instances of physical abuse in residential schools if you want to skip ahead a little bit.

But I think the Truth and Reconciliation Commission in 2015, it made repealing Section 43, one of their 94 calls to action because of the history of physical abuse in residential schools. And, you know, when I'm talking about this, you know, sort of so-called discipline, I think we're not talking about a slap on the wrist. What we're talking about in the context of residential schools is abuse that led to physical injuries, children who are subject to discipline that even at the time would not have been tolerated for non-Indigenous children, beatings with riding whips, yardsticks, hockey blades, often with public humiliation involved.

And so this is really the context that the Truth and Reconciliation Commission was looking at. And Murray Sinclair, who led the commission and later became a senator, he said to me that it was really Section 43 that allowed those who were proven to physically abuse children in residential schools to evade consequences for that. And in there, look at this, the commission did say they called, you they called corporal punishment, quote, a relic of a discredited past and that it has no place in contemporary Canada. And I guess the other thing that we think about here, too, is like the rights of a child today, right? Like, is this something that I guess when we're talking about this in a modern context, does this infringe on the rights of a child?

I mean, that is something that is, I think, growing to be an international consensus. I spoke with Sonia Vajito, who's a legal policy specialist with the Global Partnership to End Violence Against Children. And she actually said that given the fact that Canada has signed up to be a pathfinding country, meaning that Canada has committed to action to end violence against children, meaning that Canada has committed to action to end violence against children, she basically said, you would have thought Canada

would have been a leader in this department. We'll be back after this message. So it sounds like people have been actually working to try to repeal this for a while. And it sounds like there's some good arguments for that, too. But what about the arguments on the other side, Marcia? Like, why do people argue to keep this law on the books? I think in the past there's been pushback probably from two groups you could characterize with very different perspectives, we'll say. So on one side, teachers groups in the past have come out against a repeal of Section 43. And just to be really clear, those groups have not been saying we need to keep Section 43

so that we can maintain some right to use physical punishment. Their concern was that without Section 43, teachers could be criminalized for any degree of force, such as for, you know, breaking up a fight or kind of ending some kind of bullying behavior, preventing damage to property or protecting a child. So the concern was without the section, teachers could be criminalized in the course of sort of protecting children or themselves. So that's kind of one area. And I would say the other very separate area is that there has been pretty intense pushback in previous years from religious groups who describe efforts to repeal this law as really an inappropriate incursion into family life and into the decisions of parents over how

they choose to discipline a child. I guess I just wonder too, Marsha, is there any research on the other side that physically disciplining your kids can actually affect behavioral change or be beneficial in some way? I think the line that I've read on that is basically that there is no evidence to suggest positive behavioral change. So you mentioned a number of other countries actually prohibit this. Can you give us a sense, Marsha, like which other countries have actually taken that step? Costa Rica, South Sudan, Japan, France, Sweden. Just last year in 2022, the two most recent countries to do so were Mauritius and Zambia. So, yeah, there's a lot of countries that obviously have made this decision sort of stemming back over the last couple of decades,

although it has picked up in recent years. And Canada is obviously not one of them. You know, we think about the rights of a child now differently. Canada signed the United Nations Conventions on the Rights of the Child in 1991, which is, you know, over 30 years ago now. That's a treaty that upholds the rights of kids under the age of 18. I mean, I guess I just keep coming back to the question, Marsha, like, why haven't we seen action on this? Why hasn't this been able to happen? I think there's a couple of reasons. And this is a question that, again, I was asking people that I was talking to, like, you know, there have been 17 bills brought forward, even previous to the current ones I'm talking about now, to try and repeal or somewhat amend this section. But most of them are just pure repeal. And they've all failed. Obviously, they've been, you know, brought by individual members of parliament. But nonetheless, it does obviously suggest this is something that keeps coming up and keeps coming up.

And something that Sonia Viguito said to me, again, she's with the Global Partnership to End Violence Against Children. What she said to me is, you know, many of us were hit by our parents. And so to question this, it means to question our parents. It's about, you know, our societies. were hit by our parents. And so to question this, it means to question our parents. It's about, you know, our societies.

It's about our habits. It's about how we parent, how we were raised. I think, and a lot of people I spoke to said this, that it's a personal issue. It takes place in the home. People have strong opinions on it. And I think also something that people said to me is that children don't vote. They don't get a say. That's something that actually a number of people brought up to me. And I think part of that, too, is that the research says is that countries are kind of held back when their laws contradict the messaging

they're trying to get out. So in Canada, the federal government says, you know, we don't condone physical punishment. This is not a positive parenting technique. you know, we don't condone physical punishment. This is not a positive parenting technique. You know, this isn't something that you should use with your child. However, in public materials that are, you know, online right now, they do say, however, basically, if you do choose to physically punish your child, these are the regulations within which you must stay. Yeah. And so, Marsha, what are people telling you? Like, is there a sense that things might actually change this time around?

I think in many ways there is, that the parliamentarians are hopeful that this moment is a different one. They say even since like, you know, 2015 or 2018, when this was last extensively debated in the Senate, they feel that the increased awareness of the calls to action, they feel, you know, the world is really moving on. More countries are moving to ban the physical punishment of children. They say the research has moved on and they just really feel like this is a different time and it may result in a different outcome than all of the efforts previously. Marcia, thank you so much for taking the time to speak to me today. Of course. That's it for today.

I'm Mainika Raman-Wilms. Our producers are Madeline White, Cheryl Sutherland, and Rachel Levy-McLaughlin. David Crosby edits the show. Kasia Mihailovic is our senior producer, and Angela Pichenza is our executive editor. Thanks so much for listening, and I'll talk to you tomorrow.