What happens if the ‘spanking law’ is repealed?

Prime Minister Justin Trudeau hugs residential school survivor Eugene Arcand during the release of the Truth and Reconciliation Commission
Prime Minister Justin Trudeau hugs residential school survivor Eugene Arcand during the release of the Truth and Reconciliation Commission's final report. REUTERS/Chris Wattie

The issue of spanking a child has always been contentious.

Some people are for it, believing that kids need some form of physical discipline; others believe it’s a human rights issue, and children should not be subjected to any kind of physical force.

Recently, the Globe and Mail claimed that by accepting all recommendations from the Truth and Reconciliation Commission, the federal government has agreed to repeal s. 43 of the Criminal Code of Canada.

The Truth and Reconciliation Commission was created to document what happened to indigenous children put into Canadian residential schools and create a historical record about the policies and operations of these schools. As well, the commission would make recommendations to the government about the residential school system and its legacy.

If the government does indeed repeal s. 43, it won’t just affect parents, but also school teachers, and people standing in the place of a parent. The section basically says that a reasonable amount of force is allowed to be used in “correcting” the child as long as the force doesn’t surpass what is considered reasonable.

If the law were to be repealed, no level of physical force would be allowed to be used to discipline a child.

In its report, "The Truth and Reconciliation Commission of Canada: Calls to Action", called upon the federal government to “repeal” s. 43 of the Criminal Code of Canada, which was the sixth out of 94 recommendations.

So far, the federal government has not yet confirmed that it is going to revoke s. 43. However, a spokeswoman for Jody Wilson-Raybould, the federal justice minister, told the Globe the government remains dedicated to realizing all the commission’s calls to action.

This is not the first time that there have been calls to revoke s. 43 of the code. In the 2004 decision Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), the foundation tried to get s. 43 repealed on the basis that it violated s. 7, 12, and 15 of the Charter of Rights. The Supreme Court of Canada ruled that there was no violation, and s. 43 was to be upheld, though the court did restrict the limits to which physical force was acceptable.

Given the law hasn't been repealed, one has to wonder what would happen if it was?

The answer isn’t clear-cut.

Teachers are worried that repealing the law would leave them vulnerable and could see them getting charged if they, for instance, tried to break up a fight between students.

There are also worries that rescinding the law could see an increase in parents or guardians being held criminally liable for just restraining an unco-operative child.

Cathy McLeod, the Conservative Party indigenous affair critic, told the Toronto Star that before the law is repealed, there should be “heavy” consultation with Canadians first because of the potential consequences.

On the other hand, groups that are against s. 43 say regardless of circumstances, in a society where violence is frowned upon, you just don’t hit children.

Ron Ensom, a social worker who co-led the child abuse program at the Children’s Hospital of Eastern Ontario for 20 years, told the Star that using physical force on children introduces them to “their first experience with bullying.”

Regardless of who is for or against repealing the spanking law, we should know the federal government’s decision sometime soon.

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