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Why has Canada still not outlawed corporal punishment against children?

Most legal defenses exist to protect the vulnerable from the powerful, yet Canada's Criminal Code contains a rare exception that legally sanctions the powerful to inflict pain on the most vulnerable. Ailsa M. Watkinson of The Walrus exposes this glaring contradiction, arguing that Section 43 is not a relic of the past but an active, state-sanctioned entitlement for adults to assault children. This piece is essential listening because it dismantles the comforting myth that "reasonable" corporal punishment is harmless, revealing instead a legal framework that prioritizes parental authority over a child's right to bodily integrity.

The Legal Anomaly

Watkinson anchors her argument in a disturbing 1994 case where a father was charged with assault for spanking his daughter in a restaurant parking lot. The Walrus writes, "David was successful in using section 43 as his defence. The Ontario court ruled that the physical punishment he meted out upon his five-year-old daughter was 'reasonable under the circumstances,' and thus the assault charge against David was dismissed." This case illustrates the core absurdity of the law: the same act that would be prosecuted as a violent crime if committed by a stranger is legally protected when committed by a parent.

Why has Canada still not outlawed corporal punishment against children?

The author meticulously traces how Section 43 has evolved, noting that while protections for sailors, apprentices, and prisoners have been stripped away, children remain the only group explicitly vulnerable to physical correction. "The only group left vulnerable to physical punishment is one of the most vulnerable groups among us: children," Watkinson observes. This framing is powerful because it strips away the euphemisms of "discipline" and forces the reader to confront the reality that the law treats children differently than any other citizen. A counterargument often raised is that this law protects family privacy and parental rights, but Watkinson effectively counters this by highlighting that no other professional group—daycare workers, coaches, or nurses—enjoys such a broad license to use force.

The only group left vulnerable to physical punishment is one of the most vulnerable groups among us: children.

The Supreme Court's Blind Spot

The commentary deepens when Watkinson examines the 2004 Supreme Court decision in Canadian Foundation for Children, Youth and the Law v. Canada. Despite a Charter challenge arguing that the law violated children's rights to security and equality, the court upheld the status quo. The Walrus notes, "The outcome in this significant Charter challenge was derailed by the court's focus on parental rights." This is a crucial insight: the judiciary prioritized the autonomy of adults over the safety of minors, effectively codifying the idea that children are the property of their parents.

Watkinson details how the court attempted to create a "zone of risk" to limit the defense, yet the result was legal chaos. The author points out that the court rejected scientific evidence regarding the harm of physical punishment, choosing instead to rely on a "traditional conservative model." This refusal to engage with modern child development research is a significant weakness in the legal reasoning, one that Watkinson highlights with biting clarity. She argues that the decision missed the rights of children entirely, focusing instead on carving out a "sphere" where parents can act without criminal sanction.

The confusion resulting from this ruling is palpable in subsequent cases, such as R. v. A. (M.), where a father who left bruises on his daughter was acquitted. The judge in that case accepted that "forceful spanking" leaving bruises for weeks could be considered "trifling or transitory." As The Walrus puts it, "The judge quoted from the 2001 decision which said, 'When appropriate deference is shown to the parent's value system... the infliction of some pain and a bruise that is merely transient or trifling in nature... cannot... constitute unreasonable force.'" This standard is so subjective that it renders the law arbitrary, leaving children's safety to the discretion of individual judges and the moods of their parents.

The Human Cost of Legal Ambiguity

Watkinson does not shy away from the visceral reality of these legal abstractions. She defines corporal punishment broadly, encompassing everything from smacking to forced ingestion of hot spices, yet the law treats these acts with a disturbing leniency. "Children, like adults, value their personal safety," she writes, "Yet, even though our sense of outrage and shock over intrusions into our personal security is, at times, visceral, we do not as easily acknowledge the same reaction in children." This observation strikes at the heart of the societal failure: a collective inability to empathize with the child's experience of pain and fear.

Critics might argue that repealing Section 43 criminalizes normal parenting and invites state overreach into the home. However, Watkinson's evidence suggests the current law does the opposite: it invites violence by providing a shield for it. The fact that sixty-seven other countries have banned corporal punishment while Canada remains an outlier underscores that this is not a necessary tool for parenting, but a choice to maintain a hierarchy of power. The author's argument that the law violates the spirit of the United Nations Convention on the Rights of the Child is particularly compelling, as it positions Canada as a laggard in human rights progress.

Bottom Line

Watkinson's piece is a masterclass in legal critique, exposing how a century-old statute continues to sanction violence against the most defenseless members of society. Its strongest asset is the relentless focus on the arbitrariness of the "reasonable force" standard, which leaves children's safety to chance. The biggest vulnerability of the current system is its refusal to accept scientific consensus on the harms of corporal punishment, a stance that the Supreme Court's 2004 decision entrenched rather than corrected. Readers should watch for renewed legislative efforts to repeal Section 43, as the gap between Canadian law and international human rights standards becomes increasingly untenable.

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Why has Canada still not outlawed corporal punishment against children?

by The Walrus · · Read full article

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This story was originally published on thewalrus.ca

By Ailsa M. Watkinson

This story contains details about violence against children that some readers may find disturbing.

During the summer of 1994, the American Peterson family were holidaying in Canada. The parents, David and Paula, along with their children, Rachel (five years old) and William (almost two), were celebrating Paula’s birthday at an Ontario restaurant. At some point, David and the children left the restaurant to collect a gift for Paula that was in the car. The children were in the back seat and, as noted by the Ontario provincial court judge hearing the case, “almost immediately, young Rachel started to misbehave. She started fighting with her brother” and pushed him out of the open car door. When William attempted to climb back in, Rachel slammed the door of the car on her brother’s fingers. He screamed. David pulled Rachel out of the car, placed her across the trunk, and administered a “bare bottom spanking.” The event was witnessed by a number of people, one of whom called the police, and David was charged with assaulting Rachel. The story hit newspapers across the country.

I read the news reports at the time and knew that the chances of David Peterson being convicted of assault were slim to none. The reason being that parents, teachers, and others acting in the place of parents are provided with a defence within the Criminal Code of Canada. Section 43 is one of several defences within the Criminal Code that permits the use of force in specific incidences. Section 43 excuses those who use physical force on children for the purpose of correction, making children the only group of people specifically mentioned in the Criminal Code upon whom corporal punishment can be used. It states:

Every school teacher, parent or person standing in the place of the parent is justified in using force by way of correction toward the 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.

David was successful in using section 43 as his defence. The Ontario court ruled that the physical punishment he meted out upon his five-year-old daughter was “reasonable under the circumstances,” and thus the assault charge against him was dismissed.

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