POLITICS BEHIND S43

The politics behind spanking and section 43

SPANKING LAW: SECTION 43

Section 43 of the Criminal Code states, "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." Section 43 is otherwise known as the "spanking law".

The Canadian Foundation for Children, Youth and the Law CFCYL has launched a Charter Challenge to Section 43 of the Criminal Code. The case was heard at the Ontario Court of Queens Bench starting December 15, 1999. CFCYL, a self-proclaimed child advocacy group of Toronto lawyers who, purportedly, work with street children, received $40,000 from the Federal Governments Court Challenges Program to research launching this challenge and was granted an additional sum to launch the case. In other words, tax dollars are funding a case that could very well result in overthrowing a law which 70% - 75% of Canadian parents support.

This same child advocacy group has been busy advocating for other "rights" for children. In 1995 CFCYL went to court to argue that teenagers should be allowed to have anal sex. This Ontario case, known as Carmen M. involved a 23 year old man charged with sodomizing the niece of his fiancee starting when the girl was 14.

Appearing at an appeal stemming from the man's acquittal on a sodomy charge, the Foundation argued that outlawing consensual anal intercourse by those under 18 was discriminatory, especially to gay teens. The judge agreed with the Foundation. This ruling effectively allowed children to use the defence of consent when engaging in anal sex. The law did not previously allow children to use consent because an immature young person was seen to be vulnerable to coercion by an adult and therefore even though a child might "consent" it was always considered illegal and immoral for an adult to take advantage of a child's vulnerability.

When this earlier case came to light just prior to the hearing of the Section 43 challenge, Sheena Scott, the CFCYL Executive Director, said that they did not dispute the facts of the anal sex case but got involved because it thought the law discriminated against teens. "I certainly stand behind our involvement in that case. It was an equality case. We were intervening with respect to the interests of children in general," Ms. Scott added. "We had nothing to do with the trial," she said. "We argued on behalf of gay youth. We didn't argue on the facts of the case, make that clear. We had no input into the facts of the case."

CFCYL argued that the law against child sodomy discriminated against gays and exposed gay teens to "unnecessary psychological detriment." "This group is denied the liberty to make choices about their own bodies in respect to the sexual act impugned by the section," the Foundation's lawyers argued in their factum. One of their arguments in the case had been that the law as it stood might make it more difficult for gay teens to benefit from health services that could reduce the transmission of HIV. It's hard to see how legalizing sodomy for youth would improve AIDS statistics in Canada.

The Canadian AIDS Society and the Coalition for Lesbian and Gay Rights Organization joined the CFCYL to take advantage of this case to further their real children's agenda of gay rights at any age. The groups had nothing to say about a 23 year old man having oral, vaginal and anal intercourse with his 14 year old future niece for four years while engaged to her aunt. This was just a convenient case to further their real agenda of the right of 14 year old boys to have sex with an adult male.

Justice Rosalie Abella, a well known activist judge, ruled the law, "arbitrarily disadvantages gay men by denying them until they are 18 a choice available to those who are not gay, namely their choice of sexual expression with a consenting partner to whom they are not married."

This bit of history shows us exactly who is supporting the removal of the parent's right to use reasonable force when disciplining their children.

Cynthia Silver, general counsel for the Coalition for Family Autonomy, a group, which includes REAL Women, Focus on the Family and the Canada Family Action Coalition, that is intervening in support of the spanking law, said that the Foundations position on anal sex is telling. "It does reflect their ideology regarding children's rights, which is that the child is an autonomous rights holder, and should be given the ability to make decisions as early as possible and about as many things as possible," she said.

She added, "The family unit, and particularly parents, are seen as a potential threat to the autonomy of the child rather than as the child's first advocate and best resource, which most parents are for their kids."

Although the Canadian Government officially discourages spanking, Ottawa is said to be disputing the Foundation's case. It's hard to believe the Government is serious when they've poured so much tax money, through the Federal Governments Court Challenges Program into overthrowing the law.

The case was heard at the Ontario Court last December and will no doubt move to the Ontario Court of Appeal later this year. Should the foundation succeed in having Section 43 overturned at the Appeal Court we must pressure the Federal Government to appeal it to the Supreme Court. Please continue to let the Prime Minister and Justice Minister Anne McLellan know that you want to maintain the parental right to use reasonable force when disciplining children, Section 43. The issue is really whether the parents or the state should determine what is in the best interest of children.

* The challenge of Section 43 has since failed. The CFCYL is appealing to the Ontario Court of Appeal. The appeal will be heard in Sept./2001.

CANADIAN TEACHER'S FEDERATION SUPPORTS SECTION 43

In a move that surprised many, the Canadian Teacher's Federation CTF has publicly supported Section 43 of the Criminal Code.

In their December 17, 1999 Press Release the CTF stated they agreed with the Canadian Foundation for Children Youth and the Law CFCYL on its objective of protecting children from abuse and in ensuring the right to security of children. CTF also supports the Foundation's efforts to develop and promote effective disciplinary skills to eliminate the use of corporal punishment. In fact the CTF has adopted a policy opposing corporal punishment.

Why then would they oppose the repeal of Section 43? At their Press Conference they stated, "However, we believe the Foundation's assumption that the elimination of Section 43 would advance any of these objectives is incorrect. CTF also believes the removal of Section 43 would be detrimental to maintaining a safe and secure school environment for all students. This could be interpreted as encouragement to insubordinate or disruptive behaviour by those students who delight in bullying their peers."

The CTF listed the following examples of instances where they might need the protection of Section 43 in a school setting:

a.       the need to protect students or teachers when a fight occurs at school including restraining students if necessary;

b.       escorting a student who refuses to leave the classroom, or the school itself;

c.       ejecting a student who refuses to leave the classroom, or the school itself;

d.       placing a young student on the bus, in a situation where the student has been on a field trip and refuses to return to the bus;

e.       restraining a cognitively-impaired student; and

f.        intervening in a potentially disruptive situation to prevent escalation into something more dangerous.

This list is obviously not exhaustive but it does illustrate what teachers are facing in many public schools.

When asked what would happen if Section 43 were removed from the Criminal Code the CTF replied, "It would likely result in a dramatic increase in the number of assault charges filed (against teachers) and prosecuted. As a precaution, teachers would be advised to not intervene in any classroom or school situation that could develop into one in which reasonable force might be required. This could result in more calls to the police department and inevitably more injuries to students as well as a deterioration of the classroom and learning environment. In addition, those students most likely to disrupt may interpret the removal as a license to do so with impunity."

It's difficult to see why the CTF believes teachers need the protection of Section 43 while parents, who could very well be faced with the same discipline problems at home, should be charged with assault for possibly using the same disciplinary methods.