To spank or not to spank

Recently, the Ontario Superior Court upheld a provision in the criminal code which allows parents and teachers to use physical punishment on children to enforce discipline. 

According to the Toronto Star, The Canadian Foundation for Children, Youth and the Law challenged the law, claiming that spanking and some types of physical discipline violate children's fundamental rights, are violations of children's equality and are cruel and unusual punishment.

It is not surprising that the judge upheld the law. To decide otherwise would be to strike down a law that is over a hundred years old.  This would be groundbreaking and effectively making new law.

I do not intend on getting into the discussion of whether or not corporal punishment is appropriate for children.  It is obvious that the judge felt the same way.

Trial judges are often reluctant to make new law or overturn existing laws.  Quite often, the judge will uphold a law at the trial level.  Then, the losing party may bring an appeal to the provincial appeal court.  Often, an appeal is brought to the Supreme Court of Canada, which decides appeals that are important for the law and policy of the country.  It is often at the Supreme Court where important laws are overturned or new law is made.

So, in one sense, the trial judge is passing the buck onto the appeals court to make the groundbreaking decision (if it is going to be made).  On the other hand, the trial judge is correctly upholding the law and leaving it to courts of higher authority to rule that the law is improper.

In this case, the Justice made, in my view, the correct decision.  The criminal code is clear in what it permits parents and teachers to do.  It is up to the government to decide whether or not our society will continue to permit parents and teachers to discipline children using reasonable physical force.

I cannot imagine a situation in which a government would completely prohibit the use of some sort of physical force.  If a child is trying to run away from school, are we going to prevent the teacher from grabbing that student by the arm?  That is not spanking, but, like spanking, it is use of physical force.  How would a law distinguish between the two?

Hopefully, it will be a government that decides if the law is to be changed, and only after informed debate and convincing academic studies.  It would be inappropriate for the law to be changed by the lawyers and a judge that argued and judged a case.  Governments are there to make public policy, not the courts.