Strike Laws, Not Children.

DURING THE summer of 1997, Canadians followed the unusual case of an American who was vacationing in London, Ontario, and publicly spanked his 5-year-old daughter's bare buttocks with enough force that a witness complained to the police. According to the girl's father, David Peterson, he had placed his daughter across the trunk of his car because she was successfully resisting his attempts to spank her inside the car. He was punishing her, he said, for intentionally slamming the car door on her little brother's fingers. Peterson was charged with assault, strip-searched, and jailed for a day until his wife, a first-grade teacher, posted a cash bond. After the evidence was presented, Judge John Menzies dismissed the charge of assault against Peterson, stating that his court was a court of social justice. It is the law that a parent may physically discipline a child. The judge went on to describe the Petersons as responsible, reasonable, and caring parents. Subsequently, the lobby cheered that they had been vindicated and demanded that a national apology be extended to the Petersons. The children's lobby retorted that the judge's decision proved, once and for all, that the Canadian law fails to protect children from assault. A shaken Mr. Peterson, relieved to be heading home to Illinois, told the press, I think a large public debate sort of landed on us. We were just passing through, and we stepped into it.1 Judge Menzies based his decision on Section 43 of the Criminal Code of Canada, which has remained unchanged since 1892: school teacher, parent or person standing in place of a parent is justified in using force by way of correction toward a pupil or a child, as the case may be, who is under his care, if the force does not exceed what is under the circumstances. Since the turn of the century (the last one), parents and teachers have successfully invoked Section 43 hundreds of times as a defense against the charge of assault. Defense lawyers argue that the adult's use of force was reasonable under the circumstances, which is the standard set by Section 43. Every decision involving Section 43 has therefore been colored by the particularities of the situation and subject to a single judge's interpretation of reasonable. While appeals could challenge the appropriateness of the court's ruling, the law itself could not be disputed. Now, however, the law itself is on trial. When the Canadian Charter of Rights and Freedoms was proclaimed in 1982, the federal government established an independent fund to enable citizens to challenge laws that were seen to offend the charter. In early 1999, a coalition of child advocacy groups calling itself the Canadian Foundation for Children, Youth, and the Law used this route to obtain leave to argue that Section 43 of the Criminal Code was inconsistent with the charter and should therefore be struck down. Organizations that could persuade the court that they had a legitimate interest in the outcome of the decision have now submitted their written arguments to Justice David McCombs of the Ontario Superior Court. His judgment must side with one of two very different points of view. The government of Canada, as it has when other federal statutes have been challenged, takes the position that Section 43 is constitutionally and practically sound and should be retained. The federal government has been joined by the Canadian Teachers' Federation (CTF), which has become a vocal advocate of the existing law. While the CTF has adopted policy that opposes the use of corporal punishment in schools, it warns that the repeal of Section 43 would quickly lead to chaos in the classroom. Members of parents' rights groups, who perhaps believe that anarchy already rules in schools, argue for the retention of Section 43 for different reasons. The Coalition for Family Autonomy, organized specifically to oppose the repeal of Section 43, is outraged by the idea of the state's gaining yet another excuse to interfere in family life. …

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