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Parents can legally spank their children, the Supreme Court ruled Friday.
Six justices voted to uphold Section 43 of the Criminal Code, which allows parents and authority figures to use "reasonable force" on children under their care. But they applied new limits to the century-old law.
A seventh ruled that Section 43 infringes children's equality rights under the Charter of Rights and Freedoms but that the infringement was acceptable based on Section 1 of the Charter, which allows "reasonable limits" on rights and freedoms.
Two justices dissented.
The majority ruled that parents cannot use corporal punishment on infants or teenagers, cannot strike with objects and cannot hit the head of a child.
The general rule, set out by Chief Justice Beverley McLachlin, is that for corporal punishment should be legally acceptable it must involve only "minor corrective force of a transitory and trifling nature."
The case was brought by The Canadian Foundation for Children, Youth and the Law, which argued in court that a law which allows children to be hit renders them second-class citizens, unshielded by the same protectinos as everyone else.
Federal government lawyers did not argue in favour of spanking but warned that cancelling Section 43 could leave parents liable for prosecution every time they touch their children. They argued that the law, as it stands, strikes a balance between the needs of parents and the rights of children.
A criminal lawyer said Friday that the fact that the case was even heard by the Supreme Court shows that social mores are changing quickly.
"We're just not yet at the point of being able to say that a parent spanking their child is something that the state should get involved in, I think that's what they're saying," Rick Storey told CTV Newsnet.
"I think attitudes are changing. In 15 or 20 years, I would suspect we wouldn't be having this conversation, in that the child's rights will be absolutely paramount and society will have outlawed the behaviour.
"But if you go back 20 year or 30 years, when some of us grew up, I can remember being strapped by my principal, and that was entirely acceptable by society."
Section 43 dates from the late 19th-century, but has been updated several times.
A 2002 poll found that half of parents reported that they or their spouse had inflicted "light corporal punishment" on their children, while 6 per cent confessed to exposing their kids to "painful corporal punishment."
A more recent study — of Ontario and Manitoba mothers with preschoolers — found that while 70 per cent have disciplined their children with force at least once, more than half believed spanking their children was ineffective and ultimately harmful.
In a high-profile 2002 case in Prince Edward Island, a 78-year-old former nun and head of a religious commune, was convicted of assaulting five children with a wooden paddle. Her argument that "they were born with the devil in them, which had to be beaten out," was rejected by the judge, who found that the punishments went beyond reasonable. She was sentenced to eight months in jail.
Another case in southwestern Ontario, this one involving religious fundamentalists who believed that the Bible insists on corporal punishment, resulted in the children's temporary removal from the family.
In that case, a judge later ruled that the social worker had not violated anyone's constitutional rights by removing the children.
Oliver Moore, The Globe and Mail
These types of cases have been in contention for a number of years now here. Although it doesn't say it there, the definition of "infant" was a child two and under.