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Removing Section 43 from Canada's Criminal Code: Why Doing so Is Long Overdue

Info: 2551 words (10 pages) Essay
Published: 27th May 2021 in Law

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Removing Section 43 from the Criminal Code states that every schoolteacher, parent, or person standing in the place of a parent is justified in using force as a tool for correction when confronted with an unruly child or student – just so long as the force exerted is reasonable under the circumstances (Library of Parliament, 2016, Section 2). At first glance, any such provision most obviously privileges corporal punishment used by a teacher in an educational setting. However, it also gives license to presiding adults, acting in lieu of a parent, to employ corporal punishment – which means that a scoutmaster could use Section 43 as a defence for spanking or physically disciplining a minor under his care. Or, additionally, the aforementioned proviso could be used to justify a family member or paid baby sitter using physical force to “discipline” an errant child. Is this, truly, what parents and Canadians want? Any individual acting in a loco parentis fashion could theoretically strike a blow against someone else's offspring – which does not appear to be something that most Canadians would eagerly accept, unless the force was needed to neutralize a legitimate, credible, threat to the party using the force. In the pages that follow, I argue that Section 43 should be removed because it seems to be a regressive and punitive measure that runs counter to Canada's constitutional heritage and legal canon; it is also an act that can easily engender violent predilections and psychological scars in the unfortunate young people who receive it at the hands of individuals who deign to punish them physically when perhaps other corrective options are available. In light of the fact that so many efficacious and empirically established interventions do exist which can aid in curbing unwanted behaviour on the part of young people, the legal toleration for violence – even if tightly circumscribed – is something that should bring a measure of shame to Canadian law-makers. Section 43 is not a progressive or forward-looking piece of legislation, is certainly open to pernicious abuse, and it must be struck from the Criminal Code of Canada.

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 In a 2004 ruling, the Supreme Court of Canada held (in the majority opinion) that Section 43 is defensible on the grounds that it only affords protection to parents, teachers, and to persons who have assumed the obligations of parenthood; the majority also held that force will be viewed with grave disfavour by the courts if it is used for non-educational or non-corrective purposes – and any force must be limited in force and degree so as to be sober and well-considered and must be executed in a fashion that allows the child to understand the need for the correction, and the child must have the capacity to benefit from the correction (Library of Parliament, 2016, Section 3.1). The majority opinion further provides that force or corporal punishment cannot be used against children under two, or those who have particular disabilities; likewise, any force applied must not harm or degrade the child, and reasonableness demands that force not be administered to teenagers – as it can inflame passions and spark antisocial behaviour – and blows must not be directed at the head, nor blows administered with rulers or belts (Library of Parliament, 2016, Section 3.1). At first glance, the key passage about “assuming the obligations of parenthood,” suggests that perhaps a mere baby-sitter, or some other individual serving in lieu of a parent, is not granted the capacity to use physical force to correct an errant child or minor. And yet, the wording of the passage is not sufficiently clear and prescriptive to explicitly decry the use of physical force by someone who might try to defend his or her actions on the grounds that he or she was serving as a “parental stand-in” and felt obliged by the exigencies of the moment to constrain behaviour with a blow, swat, or act of forceful detention. Unless the court is prepared to specifically enumerate the kinds of people – and specific types of relationships – that allow for corporal punishment to be employed, an aggressive or ill-tempered person can use the somewhat vague wording above to justify physical assault and battery upon someone else's child.

 Durrant (2016) expressly states that freedom and security of the child should be given greater cachet by the Canadian legal system, and she notes that Canada is an international anomaly that seems unprepared to accept the spirit and letter of the United Nations Convention on the Rights of the Child. Durrant (2016) also notes that “Security of the person” seems to very much be a staple of Canadian constitutional law, yet the country seems curiously unprepared to defend this key principle as it pertains to corporal punishment (Durrant, 2016). In a broad sense, Canada is consciously and wilfully downplaying a vital constitutional tenet (at least when it comes to the protection of children) that places it at odds with the general sweep of history and the growing corpus of international law that grants burgeoning protections to children.

 At the same time, the battle to end corporal punishment in American schools (a battle evidently not yet won as of 2016) has brought to the fore the long-standing argument that corporal punishment is often humiliating, pernicious, does not furnish a child with better regulatory or coping competencies, and seems far more likely to harm the child's psychological growth than to foster the development of responsible adults; in short, corporal punishment is fixated upon punishment – and perhaps upon the delirious sense of power that emanates from its exercise – and not upon rehabilitating or ameliorating young souls (Holden et al., 2016). Using violence to curb or thwart aggressive, or even violent, behaviour in a classroom or other public context seems, on its face, counter-intuitive: save for instances wherein physical force must be used to protect the well-being and security of others (or oneself), it seems counter-productive to use force to stop the use of belligerent force against other people. In effect, what kind of message is being sent when “stand-in” parents use force to penalize disruptive or inappropriate behaviour? The message, implicitly, is that force – not reason, or other non-violent instruments - is a useful and valued tool for getting young people to behave decorously.

 Hornor et al (2019) remark that corporal punishment, even when done by parents, does not engender a safer or healthier society; indeed, the argument they raise – buttressed by empirical data – is that corporal punishment leads to short-term and long-term psychological issues for children that soon enough create long-standing self-esteem, regulatory, anger management, and abuse predilections in those who suffer harsh physical punishment for various missteps and mistakes (Hornor et al., 2019). If the damage realized in children who suffer corporal punishment at the hands of their parents, then how much worse must the psychic trauma be when these children are subjected to the humiliation and pain of physical abuse/assault at the hands of an adult who is not a parent? For reasons such as those disclosed above, Section 43 should be struck from the canon of Canadian criminal law. 

 Other scholarship consistently shows that corporal punishment leads to diminished cognitive performance, diminished psychological performance and capacity, and leads to diminished or even degraded outcomes for children; for all intents and purposes, large-scale meta-analyses of the effects of corporal punishment consistently point to detrimental outcomes for children who experience this sort of discipline during their formative and developmental years (Gershoff & Grogan-Kaylor, 2016; Vaughan-Eden et al., 2018). If the objective is to create scarred children, children who grow up fearful, defensive, and predisposed to violence, then corporal punishment is the way to go. If the objective, however, is to create young people who are psychologically well-balanced, healthy, academically robust, and capable of turning to non-violence alternatives as a means of resolving inter-personal crises, then corporal punishment needs to be discarded. The fact that the Canadian legal system, chiefly because of the Supreme Court's contentious 2014 ruling (Library of Parliament, 2016), is prepared to tolerate the legal perpetuation of corporal punishment, is a good indication that we have not yet advanced to the point of using empirical science and a growing academic consensus to safeguard the future by nurturing young people in the present. The youth of Canada certainly deserve to see Section 43 struck down before new waves of antisocial and mentally unstable youth are formulated by a tacit acceptance of violence that need not exist.

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 As time and space allow, it must be noted that effective parenting – and effective classroom pedagogy, or effective instruction and leadership in general – rests upon non-violent and progressive interventions. Life is about teachable moments, and children during their formative years can be taught to be more psychologically self-possessed, and can be taught competencies that can aid them in the somewhat arduous trek to independence (Golan et al., 2016). Parents – and even those who are non-parents – must teach young people to be independent, and to be responsible for their own behaviour, chiefly via creating action plans or directives on how to act that mitigate the prospect of adults making needless decisions for young people who need to appreciate that actions in life do have consequences and those consequences must be borne in mind when considering prospective actions (Golan et al., 2016). Those who are in leadership positions in schools, youth associations, or in workplace settings, should be striving to apprise people of their duties to others; they should not be, as the extant Canadian law might allow, acting as stern parents who feel the need to physically discipline youngsters or minors. Using a non-confrontational approach, with a keen focus on non-escalation, and with auxiliary support systems in place to help adults (and parents) who feel stressed or over-burdened by their duties and obligations, are very salutary ways of mitigating the likelihood of violent interventions during tense or anxiety-ridden inter-personal interactions (Golan et al., 2016). Instead of privileging antiquated approaches to dealing with temperamental youth, we should be teaching adults how to finesse and de-escalate situations so that violence can be avoided – both for the sake of the child, and for the welfare and safety of all who must interact with wilful and potentially belligerent young people. Removing Section 43 from the Criminal Code is a critical first step toward delivering the message that our society will no longer countenance the use of violence when a better way can be found – and is actually readily available.

 To end, removing Section 43 would mark a step forward for Canadian jurisprudence. It would celebrate the triumph of reason over violence, and would reveal Canada as a nation that genuinely cares for the well-being of its young people, and is rightly concerned about the inter-generational transmission of a penchant for violence. Canada is presently an outlier in the world as it pertains to physical violence toward children, and its tenacious defence of corporal punishment seems to fly in the face of empirical research which shows the grave harm that persistent corporal punishment inflicts upon young people who endure it. When one also considers the gross abuses that can arise when our society is ambivalent or non-committal about its use, it seems manifest that the existence of Section 43 can easily become a means of effectively championing misconduct that will only engender destructive societal problems in the future. Canada is a nation that can do far better than this, and some sort of calculation should be borne in mind that bears consideration of the social costs that arise from young people being exposed to violence as a tool for “correcting” behaviour and for resolving inter-personal strife and miscommunication. There should also be a greater recognition that legally tolerating violence toward children provides ample terrain for abusers and predatory individuals to exploit positions of authority to inflict needless pain upon the most vulnerable. Once again, Section 43 should cease to be, and the day for its termination should be as soon as possible.

References

  • Durrant, J.E. (2016). 'Slow and not so steady: Canada's long journey toward protecting children from corporal punishment'. In B. Saunders, P. Leviner, and B. Naylor (Eds.), Corporal punishment of  children: Comparative Legal and Social Developments towards Prohibition and Beyond (pp.269-292). Leiden: Brill.
  • Gershoff, E.T., & Grogan-Kaylor, A. (2016). 'Spanking and child outcomes: old controversies and new meta-analyses'. Journal of Family Psychology, 30(4), 453-469.
  • Golan, O., Shilo, H., & Omer, H. (2016). 'Non-violent resistance parent training for the parents of young adults with high functioning Autism Spectrum Disorder'. Journal of Family Therapy. Retrieved March 30, 2019,  https://www.researchgate.net/publication/291553736_Nonviolent_resistance_parent_training_for_the_parents_of_young_adults_with_High_Functioning_Autism_Spectrum_Disorder
  • Holden, G.W., Wright, K.L., & Sendek, D.D. (2016). 'History of, and progress, in the movement to end corporal punishment in the United States'. In B. Saunders, P. Leviner, and B. Naylor (Eds.), Corporal punishment of  children: Comparative Legal and Social Developments towards Prohibition and Beyond (pp.293-320). Leiden: Brill.
  • Hornor, G., Quinones, S.G., Boudreaux, D., Bretl, D., Chapman, E., Chiocca, E.M., Donnell, C., et al. (2019). Building a safe and healthy America: eliminating corporal punishment via positive parenting'. Journal of Pediatric Healthcare. Retrieved January 22, 2020, from https://www.jpedhc.org/article/S0891-5245(19)30190-7/fulltext
  • Library of Parliament. (2016). 'The 'spanking' law: Section 43 of the Criminal Code.' Retrieved January 29, 2020, from https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/201635E#a2
  • Vaughan-Eden, V., Holden, G.W., & Schrieffer Leblanc, S. (2018). 'Commentary: changing the social norm about corporal punishment'. Child and Adolescent Social Work Journal, 36, 43-48.

 

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