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www.corpun.com   :  Archive   :  2002   :  CA Domestic Jan 2002

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CANADA

Domestic CP - January 2002



masthead Calgary Sun, Alberta, 20 January 2002

Alberta View

Parental Authority Transferred To The State

By Ted Byfield

We took another stride last week in our tireless campaign to put behind us the Bad Old Days, meaning the world as it was before the 1960s.

It came with the "spanking" decision of the Ontario Court of Appeal, hailed by social conservatives as a magnificent victory, since the court upheld the right of parents to strike their children.

But, if you read the fine print, it was no victory.

The court ruled that, while a parent may still spank a child over the age of two, he must do it only with his hand.

A child under two may not be struck at all.

So if a toddler persists in pulling stuff off the stove and the parent slaps his fingers, the parent has committed a crime.

If a 14-year-old, sprawling on the couch, tells his father to go to hell, the father is allowed by law to spank his butt with the palm of his band.

If the kid's response is to smash the father in the face with his fist, the father's only recourse is to call in the police, who will call in the social workers, who will call in the counsellors.

The state, once again, must come to the rescue of the family.

Pretty soon we won't need the family, only the state.

The family, of course, was once central in most people's lives and the state marginal, but that was in the Bad Old Days.

You wonder: Is this replacement of the family by the state the real objective of an organization like the Canadian Foundation for Children Youth and the Law?

They're the chief foes of "family violence," as they call it, and they deplored the Ontario court's decision because it still left some vestige of physical authority to the parent.

Yet each "right" they win "for the child" is inevitably a right transferred from the parent to the state.

It's difficult to believe they aren't fully aware that what they are championing is not the child's rights but the state's.

Or are they Marxists and don't know it?

In any event, what enables them to make progress is the public's unfailing rejection of the Bad Old Days.

Even in the presentations of the conservative side, there was always the ritual disclaimer.

While they were there to defend parental rights, they certainly weren't advocating that we go back to the Bad Old Days.

Why does no one ever ask: Why not?

What was so bad about the Bad Old Days?

What actually was the lot of children in pre-1960s Canada?

Were children not beaten?

To the teen years, we were certainly spanked, that's true.

In school we were strapped. Quite frequently, in fact. In Grades 7 and 8 at Corcellette Road School in Toronto, somebody in the class got the strap pretty much every week, less frequently as the year wore on because the joy of the misdemeanor -- talking in class, fighting in the schoolyard, cheating on tests, whatever -- wasn't worth the stinging pain in the your palm.

We lived in a highly-structured environment. We marched into school in single file, boys and girls, to Souza band music.

We stood when the teacher came into the class or whenever we answered a question.

The teacher must always be Mr. So-and-So or Miss Such-and-Such. There were occasional schoolyard fights, always rapidly terminated with the belligerents being dragged into the principal's office and strapped.

But rules governed even the fighting. You didn't attack from behind. You didn't hit a guy when he was down. And you never, ever hit a girl.

Tests in every testable subject were a weekly routine.

Departmental examinations were set at Grades 9, 12 and 13, and the results in the last two published in the newspapers, however humiliating.

While spanking was a disincentive, this was an incentive.

It's also noteworthy that juvenile crime was practically unknown, as was juvenile suicide, rampant bullying and -- for whatever it' s worth -- single parenthood.

The only other sense I remember from those days is one of safety.

Strap or no strap, somehow we felt exceedingly secure. Adults were in charge and that was good.

Modern kids don't feel secure, and transferring parental authority to the state will only make things worse.



masthead London Free Press, Ontario, 23 January 2002

Opinion

Appeal Court Grasped Fine Line Of Spanking

By Gordon Cudmore
London Freelance Writer

Gordon Cudmore is a London [Ontario] lawyer.

Spare the rod and spoil the child. True or false? It is a question that, at least to the Ontario Court of Appeal, cannot yet be answered. In its recent decision permitting corporal punishment for the purpose of correcting children, it bypassed that controversial issue. The reason was simple. There is simply no reliable expert evidence to show such a form of discipline as spanking leads to a negative outcome for children. Nor is there sufficient evidence to the contrary -- that it has a positive corrective effect.

The court's task, though not easy, was to decide whether Section 43 of the Criminal Code, which permits certain people to use reasonable physical force when disciplining children, violates the rights of children under the Charter of Rights and Freedoms.

Though not readily apparent, it gives rise to two questions. Is any physical force, regardless of degree or purpose, legal under the Constitution? If the answer is yes (which it was), how much force is reasonable?

The judges viewed the first question as being properly a decision that should be made by Parliament. Our legislators created the section justifying some physical force, no doubt in the belief it was a necessary disciplinary tool. In so doing, according to the court, they did not violate the rights of the child. But the force must be reasonable and it must be for the purpose of correcting a child's behaviour. So a line had to be drawn. On one side is physical discipline that is acceptable and thus not criminal. On the other side of that line exists abuse. Criminal behaviour.

Regrettably, the line is not drawn in the sand or etched in drying concrete. It is carved in the law. And it is still not readily visible. In fact, depending on a particular judge deciding a particular case on a particular day, the line might move. But the appeal judges did make every effort to at least provide some guidance as to where a parent might find that line.

Abuse is clearly not acceptable. Spanking apparently is. Experts, who rarely agree on anything, did apparently accept a common definition of just what constitutes a spanking: ". . . the administration of one or two mild to moderate smacks with an open hand on the buttocks or extremities which does not cause physical harm." Neither the head nor the face are considered extremities.

Even the acceptable use of a spanking, however, depends upon the age of the child. Again the experts agreed and the judges accepted that for a child under the age of two, even a mild spanking has no value and may destroy a child's sense of security and self-esteem. (No doubt determined by interviewing a representative sampling of two-year-olds.)

At the other end of the spectrum, it was determined spanking a teenager is not helpful and is potentially harmful. I have never agreed with the Court of Appeal more. I have a teenager. He is six feet tall, weighs 230 lbs. and plays left guard for his high school football team. Spanking him would not only be harmful, it would be downright dangerous.

Finally, the judges offered the guidance that the spanker's hand should remain open and should not be holding any object. It is hard to argue with that.

It would be nice to know with certainty where that "line" is drawn. But certainty is rarely a part of life.

While Section 43 applies to a teacher, parent or a person standing in the place of a parent, the court really focused its attention on the parent-child relationship. There was a reason for that. It is because our society still believes in the family. It is a unit where, according to Madame Justice L'Heureux-Dube of the Supreme Court of Canada, "The mutual bond of love and support between parents and their children is a crucial one and deserves great respect . . . Parents must be accorded a relatively large measure of freedom from state interference to raise their children as they see fit." These words of wisdom were obviously not lost on the three Ontario justices faced with the task of determining just how much "freedom" parents should have.

So why is the decision not left to parents alone? Why should the law stick its judicial nose into a place some feel it does not belong? Because the court recognized a reality most of us would like to pretend does not exist. While the family unit provides a vital and nurturing environment for children to grow and develop, it can too often be, for those same children, a place of great danger.



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Colin Farrell 2002
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