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4The Rights of Protection How well has Canada performed in providing for children’s rights of protection? Has significant progress been made in implementing the child’s right to protection against the toxins of violence, abuse, neglect, and maltreatment? Has the child’s right to a protective juvenile justice system been secured such that children in the system receive appropriate care, rehabilitation, and treatment? We now review developments in the areas of corporal punishment, abuse and neglect, and the young offenders system. Finding serious shortcomings in Canada’s record, we explain why it is necessary that Canada, in meeting its obligations under the Convention, abolish corporal punishment, establish a stronger system of child protection, and adopt a much stronger policy of treatment for young offenders. Protection against Assault The Convention clearly calls for the protection of children against violence and against assault on their physical integrity and on their dignity. Article 19 directs Canada to take all appropriate legislative, administrative, and educational measures to protect children from all forms of physical or mental violence, injury or abuse, neglect, and exploitation by parents or others in positions of authority. Article 19 also obligates Canada to provide for programs of support, prevention, and treatment in cases of violence and child maltreatment. In the area of school discipline, article 28 calls on Canada to ensure that school discipline is administered in a manner consistent with the child’s human dignity. In addition, under article 37, children are not to be subject to degrading treatment. And, once again, article 3 comes into play, insisting that Canada has the responsibility to ensure that the best interests of the child are to prevail in all legal and administrative decisions. A legal system that allows for the assault on the Notes to chapter 4 start on p. 197. / 69 physical well-being and dignity of children would be in clear violation of the principle of the best interests of the child. The problem for Canada is that although its legal system does protect children against physical violence in general, it does not protect them against violence in the form known as corporal punishment. Corporal punishment describes any form of physical behaviour used to discipline a child that is not severe enough to be classified as abuse. Common types of corporal punishment are spanking, shoving, grabbing, and shaking.1 On the one hand, parents or adults in positions of authority do not have a right in Canadian law to spank their children. But they do have a legal defence to do so. In section 43 of the Criminal Code, ‘‘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 was under his care, if the force does not exceed what is reasonable under the circumstances .’’2 The key point of defence here is the use of reasonable force as a means of correction. While the most important defence of corporal punishment is in the Criminal Code, the practice is also permitted under other Canadian law. For example, in provincial child protection legislation and in the interpretation of this legislation by child protection agencies, the distinction is often made between physical abuse and spanking. Physical abuse, it is said, is the use of excessive physical force while spanking, or corporal punishment, is the application of reasonable force for the purpose of discipline.3 And in Quebec’s Civil Code (until 1994), parents and those responsible for the education of children have been authorized to apply ‘‘reasonable and moderate correction’’ to children.4 The situation is this. In state-operated or state-funded facilities for the care of children (e.g., daycare centres, foster care homes), corporal punishment is generally prohibited. In public schools, the practice has been banned in many elementary and secondary schools across the country . This has been done through a provincial regulation in British Columbia and through the policies of many individual schools and school boards in other provinces and territories. Where corporal punishment is allowed in schools — and it is in many schools — its use is usually governed by policy guidelines. However, these guidelines vary greatly in terms of the specific form of punishment and who applies it. Finally, in families, corporal punishment is not banned. But its use by parents is subject to rules developed by the courts in their interpretation and enforcement of section 43 of the Criminal Code. Under section...

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