jenna morton she said times transcript

Spanking Law Should Be Repealed

Tied to a chair.

Those are the words I can’t get out of my head.

Earlier this week, a former local daycare operator was cleared of charges of assault against children in her care, as well as against an employee. And that decision has left me reeling.

As a parent, I get that kids can be difficult, even out of control. I’ve been home with three preschoolers for several years. They are irritating and irrational and can get downright violent – but I’ve never thought the answer was tying any one of them to a chair.

The daycare owner told the court she sometimes tied children to chairs – with a soft scarf – as a form of discipline. Her lawyer cited Section 43 of the Criminal Code in his defence of his client’s actions.

Section 43 is also known as the ‘spanking law.’ It states that: “Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.”

The key, of course, is what one considers reasonable under the circumstances.

A pamphlet from the Public Legal Education and Information Service of New Brunswick states that spanking a child under two years of age is not reasonable, as the child doesn’t have the cognitive ability to understand what is happening and that the action can “destroy a child’s sense of security and self-esteem.” I would consider being tied to a chair – at any age – as also being detrimental to one’s sense of security and self-esteem.

However, the Supreme Court, in clarifying Section 43 a few years ago, stated that reasonable force could be used with a child between the ages of two and 12 if it were “transitory and trifling” and the person did not use an object, citing the example of hitting someone with a ruler or belt. The Court also suggested that the actions must be done as a means of educating the child about correcting a behaviour.

Parents place an enormous amount of trust in our childcare providers. I’d argue we even hold them to a higher standard than ourselves. In my opinion, they are paid not only to keep our children safe from harm, but also to nurture them and react calmly and constructively to tantrums and bad behaviour. I can accept childcare providers who have a bad day and react with the same short-tempered snappy responses I sometimes let slip with my kids. But I can’t accept that physically restraining children with any object, no matter how soft, is something that is protected by a law in Canada.

Repealing Section 43 was included as one of the recommendations of the Truth and Reconciliation Commission. It’s been almost a year since the federal government said it would pursue it. Perhaps this case can help spark the discussion again about what we, as a country, consider to be reasonable ways in which to teach children how to behave.

I agree with the idea that everyone is innocent until proven guilty beyond a reasonable doubt. I understand that leads to many court rulings that seem unfair to those of watching from the sidelines. But I think the fault in this case lies with the law itself. I hope the federal government follows up on its promises to do away with ‘the spanking law’ before another family hears that their son or daughter has been tied to a chair at daycare.

She Said appears Saturday in the Times & Transcript and on Pickle Planet.


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