During the summer of 1994, the American Peterson family were holidaying in Canada. The parents, David and Paula, along with their children, Rachel (five years old) and William (almost two), were celebrating Paula''s birthday at an Ontario restaurant. At some point, David and the children left the restaurant to collect a gift for Paula that was in the car. The children were in the back seat and, as noted by the Ontario Provincial Court Judge, "almost immediately, young Rachel started to misbehave. She started fighting with her brother" and pushed him out of the open car door. When William attempted to climb back in, Rachel slammed the door of the car on her brother''s fingers. He screamed. David pulled Rachel out of the car, placed her across the trunk of the car, and administered a "bare bottom spanking.

" The event was witnessed by a number of people, one of whom called the police, and Mr. Peterson was charged with assaulting Rachel. The story hit newspapers across the country. I read the news reports at the time and knew that the chances of Mr. Peterson being convicted of assault were slim to none. The reason being that parents, teachers, and others acting in the place of parents are provided with a defence within the Criminal Code of Canada. Section 43 is one of several defences within the Criminal Code that permits the use of force in specific incidences. Section 43 excuses those who use physical force on children for the purpose of correction, making children the only group of people specifically mentioned in the Criminal Code upon whom corporal punishment can be used.

It states the following: "Every school teacher, parent or person standing in the place of the parent is justified in using force by way of correction toward the 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." Mr. Peterson was successful in using section 43 as his defence. The Ontario Provincial Court ruled that the physical punishment he meted out upon his five-year-old daughter was "reasonable under the circumstances"and thus the assault charge against him was dismissed. I had written previously about child physical punishment, calling for an end to its use as a form of discipline and seeking the repeal of s. 43 of the Criminal Code.5 The Peterson case spurred me on to apply the law--the Canadian Charter of Rights and Freedoms--in my challenge of s. 43.

The Charter challenge argued that s. 43 of the Criminal Code of Canada violated the equality rights of children under the Charter (s. 15) as well as their right to "security of the person" (s. 7), and that corporal punishment is a form of "cruel and unusual treatment" (s. 12). The case, carried forward by the Canadian Foundation for Children, Youth and the Law (cfcyl) was eventually heard by the Supreme Court of Canada which issued its decision in January 2004, and upheld s. 43 of the Criminal Code,6 while clarifying the limits of its scope. The focus of this book, informed by critical theory, comes from a children''s rights perspective and advocates for the right of children to a caring and non-violent upbringing.

The book examines the historical, legal, and common law justifications for using physical force on children as well as critically examines the legal process involved in using the Canadian Charter of Rights and Freedoms and international human rights documents, specifically the United Nations Convention on the Rights of the Child as a means of promoting change to common social practices. The analysis focuses in large part on the legal attempt to transform the inequitable status of children to individuals endowed with rights. The debate and subsequent Supreme Court challenge were seen by some as promoting the rights of children as autonomous beings. Others saw it as a threat to parental authority and autonomy, to religious values, and to family values. They represent a conflict between the characterization of the oppression and domination of children on the one hand and the need to protect and enhance parental authority to raise children as they see fit on the other. It is a conflict that calls upon the authority of human rights laws, religious teachings, custom, social science, common law, and "common sense." This book explores and records the history of corporal punishment in Canada, the assumptions supporting its use, the justification for banning the use of corporal punishment on some citizens but not others, the legal arguments used in the Charter challenge, the evidence presented, and the final outcome and parental understanding of the Supreme Court decision and the implications it has for them. Finally, it highlights the effectiveness of human rights laws in bringing about social transformation.