It’s Still Legal To Hit Kids In Canada,
And It Shouldn’t Be
By Ruth Miller (Retired sexual health educator and children’s author, with a lifelong passion for women’s and children’s rights and social justice issues.)
Every year, since 1993, Canada celebrates National Child Day on November 20. This day is to commemorate the adoption in 1989 of the UN Convention on the Right of the Child and in 1959 the UN Declaration of the Rights of the Child.
Canada has signed and ratified the CRC. Article 19 of the Convention states that signatories shall take all appropriate legislative measures to protect children from all forms of physical and mental violence.
To date, 50 countries have banned physical punishment of children in all settings, including the home. Canada is not among them (and neither, incidentally, is the United States).
So, Canada has not honoured its commitment to adhere to the Convention even though the UN Committee on the Rights of the Child has repeatedly urged Canada to do so.
What is Section 43 of the Criminal Code?
Section 43, codified in 1892, is the law that allows parents, teachers and those standing in place of parents to use force to “correct” children as long as the force does not exceed what is “reasonable” under the circumstances.
Attempt to Repeal Section 43
In 2004 a constitutional challenge was mounted against this law in the Supreme Court of Canada. In a 6 to 3 decision, the majority did not strike down the law but set out a series of new limitations not found – then or now – in section 43.
Among other things the Court restricted its use to children between the ages of 2 and 12, and stated it must be “transitory and trifling” must not involve objects such as rulers and belts, and may not be applied to the head.
But The Law Remains
The law that effectively says to children, “You are not worthy of the protection against assault that is granted to adults,” remains on the books.
No child deserves to be hit. There are things that children do that anger parents, or that put the child or others at risk, or are socially unacceptable, but there is never a reason to hit another human being to discipline or teach.
What does this mean, in plain language? It means parents should not be allowed to hit or spank their children. A recent meta-analysis of over 50 years of research has shown that it doesn’t make children more compliant, and that even worse, it leads to negative and detrimental outcomes later, in adulthood.
Most Canadians have not heard of Section 43
Most Canadians have never heard of section 43 of the Criminal Code, nor are they aware that the Supreme Court has restricted the use of corporal punishment, nor do they know that Canada has not honoured its commitment to adhere to article 19 of the UN Convention on the Rights of the Child.
Who Wants Repeal?
Over five hundred and fifty national, provincial/territorial, and community organizations have endorsed the Joint Statement on Physical Punishment of Children and Youth, published in 2004 by the Coalition on the Physical Punishment of Children and Youth.
Discipline does not mean Physical Punishment
What all of these organizations, know–what decades of data tells them–is that discipline shouldn’t mean physical punishment and that physical punishment is ineffective as discipline. They know that there are positive methods of childrearing that are effective and humane and that there is overwhelming evidence that physical punishment is harmful.
Resolution by The Canadian Bar Association
In August of 2013, the Canadian Bar Association’s governing Council passed a resolution asking government “to follow the road map” provided by the recommendations of the UN Committee on the Rights of the Child (the UN Committee), as set out in its Concluding Observations to Canada.
In March 2014, the President of the Canadian Bar Association wrote to the then Prime Minister and other Ministers responsible for the law and the well being of children and referred to the serious criticisms levelled at Canada in the UN Committee’s Concluding Observations, including the UN Committee’s concern that section 43 “continues to condone corporal punishment of children.”
Truth and Reconciliation Commission of Canada
In 2015 The Truth and Reconciliation Committee, established to deal with the legacy of the native residential school system in Canada, made 94 calls to action. Number 6 was to repeal section 43 of the Criminal Code of Canada. The Commission recognized the harm done to aboriginal children in residential schools due to physical punishment among other abuses.
New Government’s Pledge Needs Action Now
The federal Liberal government, elected in 2015, has pledged to implement all 94 Calls to Action of the Truth and Reconciliation Commission. It should do so, including the immediate repeal of Section 43 of the Criminal Code.
Furthermore, it must implement the UN Convention on the Rights of the Child that includes repealing section 43.
Let’s join the 50 other nations of the world that have committed to honour their children and protect them from all forms of violence.
Let’s make it illegal to hit children. Let’s make every day National Child Day.