Campbell: Extra Reasons To Dump Boscasen's Bill

Interesting that Act MP John Boscawen wants to introduce legislation that will try to re-define what is or isn’t a permitted means, and level, of parental discipline. He belongs to the same party that opposes an exemption under the tax rules for GST on food, which would help to feed the same children. Meaning : Boscawen appears willing to go through all sorts of definitional contortions to enable parents to ‘discipline’ kids, while maintaining it is far too hard and messy to enact exemptions to ensure they can be fed. Once again, the Act Party makes its priorities clear.

While Prime Minister John Key has said National will not support the attempt by Boscawen to re-open the smacking debate, the rationale seems to be on grounds of expedience – to stop Parliament from being paralysed for months by yet another round of increasingly pointless and destructive debate about a law that seems to be working well.

While that’s a good enough reason – and Key deserves praise for being decisive – there is an even better reason. Namely, the evidence of how contradictory and unjust the outcomes have been in other countries that have tried to do what Boscawen is proposing.

Canada, for instance, has gone through the contortions of defining ‘acceptable’ levels and methods of hitting children. The relevant mechanism is section 43 of the Canadian Criminal Code. In its section 43 determination in January 2004, the Canadian Supreme Court issued these guidelines to clarify the rights of parents, and the rights of the child in the context of child discipline. The guidelines are that physical punishment:

1. must be used only for ‘correction’ ( ie not simply as anger)

2. cannot be administered to children under 2 or teenagers,

3. cannot be administered to children with disabilities or ‘contextual factors’ that mean they will not learn from it,

4. cannot be on the head or involve the use of objects,

5. should not be ‘degrading, inhuman, or harmful’,

6. should be ‘of a transitory and trifling nature’, and

7. must not result from caregiver frustration, loss of temper, or abusive personality.

As the subsequent case law has shown, these factors present the courts and juries with immense problems in finding whether the particulars fall within, or outside the guidelines. ‘What is transitory or trifling’ to some, will not be to others. Did Citizen X discipline that child for good intentions, or because he has an ‘abusive personality’? Who can tell. Here’s a summary of the seven most recent section 43 cases from this year, and 2008.

1. R. v. D.L.M. [2009] B.C. No. 85994 June 17/09 Kamloops S. D Frame, Prov Ct Judge

Facts: Father of 9-year-old girl, who did not live with her but with whom he occasionally visited, is charged with assault arising from an incident during an outing to a swimming pool. The girl objected to father’s insistence that he put his towel in her duffle bag and a loud argument about this ensued. The father grabbed her, pulled her forcefully by the arm along the sidewalk, slapped her back and face and was angry throughout. Although the father legally had joint custody, he seldom saw his daughter.

Decision: Guilty

Reasons: Although the accused is the girl’s biological father and has joint custody, this alone does not make him a ‘parent’ under s. 43, since a parent is someone who assumes all the obligations of parenthood. He has not done this, and as there is no evidence of delegation of authority by the mother, he cannot rely on s. 43.

Even if father were a ‘parent’, his actions cannot be justified under the Canadian [2004] decision. They were motivated by anger, not by an intention to correct; there was a reasonable prospect of harm by pulling girl along the sidewalk and slapping her on the lower back; and although spanking itself, is not ruled out by that decision, the slap on the face certainly is. Most of the cases cited by counsel were decided previous to that decision and no longer fit its tests. Further, although Canadian [2004 decision] held it improper to focus on the gravity of the offence, there was no offence here by the child that required correction, so by definition, the force used by father cannot be considered ‘corrective’.

2. R. v. Demelo [2009] O.J. No. 2387 May 28/09 Brampton S.D. Brown J.

Facts: Father charged with assault on 12-year-son after returning from football game in which his son had not played as well as expected. At home, a ‘profane tirade’ ensued by father against his mother-in-law, who was present at the home; son then swore at father; father warned that if son did so again, he would be slapped; son did so; father ran up stairs after him and ‘pushed’ his son’s cheek or forehead, causing son to fall and hit his head on father’s knee.

Decision: Acquitted

Reasons: Contact with father’s knee was likely accidental and slight push to son’s face was for purpose of correction and not criminal. As in R. v. K. (see our 2004 note on this case), not all slaps to the head are banned by Canadian Fdn decision. As Sutherland J. stated in R. v. K.:

There are other types of slaps to the head which, although they are assaults, are covered by section 43 because they do not amount to ‘corporal punishment or ‘discipline’ and they are ‘minor corrective force of a transitory and trifling nature.

Further, as in R. v. Peterson, decided before Canadian judgement, it is unrealistic to assume that parents discipline their children in a state of detached calm. Anger is part and parcel of correcting a child.

Comment: Like the decision in R. v. K., this decision ignores the Canadian [2004] case by finding that a ‘push’ to the head, and doing so in anger, are reasonable and allowed by s. 43. The chance of decisions like this being appealed are slim, given the likely reluctance on the part of both prosecutors and parents to subject children to further court proceedings.

3. R. v. B. W.W. [2009] A.J. No. 672 May 28/09 Calgary P.B Barley Prov Ct. J.

Facts: Father accused of assault on 15-year-old daughter who became drunk in a park with other teenagers. One of the teenagers called her own parent to come to the park and they in turn called the girl’s parent’s. Father arrived, grabbed his daughter and started to take her to his truck. Another father intervened and police arrived. The girl’s mother and other witnesses said the father dragged the girl by her hair some 2 to 10 feet.

Decision: Guilty

Reasons: The rejection of the other father’s intervention and the admission by the accused that he was upset indicates he was angry. This would be an assault if committed on a stranger. Father is not entitled to the protection of s. 43 because pulling daughter’s hair has an element of punishment and a parent may not use corporal punishment on a teenager. He did not attempt to remove her verbally or with the assistance of the others there who were willing to help. His immediate resort to force is not reasonable. Canadian [2004 decision] seems to draw a distinction between corporal punishment and corrective force to remove a child from a particular situation. Teachers may use the latter but not the former and it is logical that parents also have the same power.

4. R. v. Morrow [2009] Alberta Ap 21/09 Medicine Hat LeGrandeur Prov Ct. J.(18 pages)

Facts: A 38-year-old bus driver for special needs children is charged with assault on boy, age 6, who was “freaking out” on the bus and would not stop when told. The boy was in foster care and when the bus dispatcher contacted the foster mother about his behaviour, she said to speak to him “firmly”. The boy was moved to the back of the bus but started pulling at the bus levers. The driver then taped the child’s wrists to the seat and put a sock in his mouth. When the boy spat it out, the driver put it back and taped it to his head but the boy managed to remove it. The driver thought he had done his best in the circumstances for the safety of the boy and others on the bus.

Decision: Acquitted

Reasons: When a child is placed on a school bus, it must be presumed that the parent has delegated the power to correct the child for his own protection or that of others. In this case, delegation goes further than implication, since the foster mother was actually contacted. The accused was not angry and the force used was not excessive but reasonable and for the purpose of protecting the child and others on the bus. All the criteria of s. 43 have been met.

Regardless of s. 43, the driver is also not guilty of assault as understood by the common law. As Arbour J. observed in the Canadian Fdn. case: “…the courts continue to be the guardians of common law defences.” The circumstances surrounding the use of restraint must always be considered; otherwise any act of restraint would be an assault.

Comment: Numerous decisions are quoted and discussed in this lengthy and scholarly judgment, but the finding that it is reasonable to stuff and tape a sock in the mouth of a disturbed 6-year-old is questionable, even when the child is “freaking out” and posing a danger to himself and others. Legal approval of actions like this not only demean the child but also encourage persons in authority to resort to such practices rather than anticipating and planning what to do in such foreseeable situations; particularly when dealing with disturbed children. Holding that the common law provides a defence quite apart from s. 43, is noteworthy in view of a bill to repeal s. 43 currently in the senate that makes no reference to ending this common law defence.

5. C. c. M.M. [2009] J.Q. no 2158, March 2/09, Beauharnois, Roberge, J. C. Q. (our translation)

Facts: Father changed with assault with a weapon on 7-year-old son by threatening to break his fingers with a hammer and banging the hammer on a table near the child. The child had taken his grandfather’s wallet and hidden it in his bed and father said he had done this before.

Decision: Guilty of assault with weapon.

Reasons: Father’s aim was to frighten his son. He acted in anger and frustration and not with the aim of educating or disciplining. This and threatening with an object is not within the s. 43 defence.

6. R. v. C. G. [2009] A.J. no 246, Jan 22/09, Calgary, B.R. Fraser Prov. Ct. J.

Facts: Mother (separated from father) charged with assaulting 7-year-old daughter while they were staying overnight at the house of a friend. She told her daughter to sleep in the basement but the child couldn’t go to sleep. She came back to her mother’s bed and mother told her that if she did so again, she would be hit. Child came back and mother hit her twice on arm and once on forehead. The father noticed arm bruises and swelling on forehead.

Decision: Guilty of assault on forehead. Not guilty of assault on arm.

Reasons: Although the child’s actions hardly seem like something for which she should be corrected, the Supreme Court decision states the nature of the offence calling for correction is not a relevant consideration. I must therefore accept that this is proper discipline because child ignored the warning, knew consequences and knew that her mother had hit her before for improper behaviour. I disagree with this. In cases where the nature of the conduct is extremely mild, the corrective measure taken should be a factor. However, I am bound by the Supreme Court decision.

The question then is whether the discipline was reasonable. Hitting a child with an open hand on the arm, in my view, by itself, is reasonable correction. The question is how hard it was can only be determined by the injury. The child said it hurt, but did not notice any bruise or welt. Her father and police described a bruise as big as a tennis ball, but I find it hard to believe an open handed slap could cause a bruise of that size. I accept that there was bruising on her arm and discolouration, but the extent or the size of that bruising I cannot determine from the evidence.

I accept that mother hit child on the forehead as part of the disciplining and that this caused some swelling but no discolouration. The Supreme Court has said that corporal punishment which involves slaps or blows to the head is harmful and will not be reasonable and that discipline by objects or blows or slaps to the head is unreasonable. There is no room for trifling or transitory blows or slaps to the head. Any such assault is unreasonable.

7. R. v. Swan [2008] Ont Superior Court of Justice, Mar 13/08, Picton, Justice C. Robertson

Facts: 15-year-old daughter had a history of running away from home and had been voluntarily placed in CAS care but at this time was back home. She continued to run away and had been taken in by boyfriend and his mother. A court order had been made restraining them from doing so. Father had seen daughter and boyfriend both under influence of drugs and had discovered drug paraphernalia in daughter’s bedroom.

In Nov/06, the time of alleged assault, daughter had gone to party with boyfriend, contrary to parent’s instructions. The father went after her, grabbed her by the shirt and ‘kind of shoved’ her into his truck to take her home. She ran back to the party and when father found her again, she was outside ‘yelling and screaming’. Father called police and she told them father had assaulted her. The assault charge was that he threw daughter into truck. At the time of trial, daughter was living elsewhere with parents paying her room and board.

Trial judge concluded on the basis of the 2004 Supreme Court decision that father’s action did not constitute correction and that, even if it did, daughter was not capable of benefiting from this correction. He granted father conditional discharge.

Decision: Appeal allowed and father acquitted.

Reasons: In holding that s. 43 does not apply to teenagers, the Supreme Court was referring to corporal punishment, not to the use of reasonable force for restraint or control. The trial judge placed too narrow an interpretation on the meaning of correction and the child’s ability to benefit from it. The daughter benefited from this correction because she returned home for a time and no longer associates with boyfriend

The father’s use of force was to return his daughter to a safe environment and the force was reasonable. She was not injured. The reasonableness of the force must be considered ‘in light of the nature of the offence calling for correction’.

As for the Crown’s argument that the father was motivated by anger, the trial judge did not exclude the defence of s. 43 on this basis. Anger and correction are not mutually exclusive concepts. As stated in the 1995 decision in R. v. Peterson, anger is part and parcel of the correction of a child and to think otherwise is unrealistic.

Comment: The decision accords with the Supreme Court’s distinction between the use of reasonable force for correction and reasonable force for restraint or control in holding that the father’s use of force was for restraint or control and hence within the ambit of s. 43. Holding that the force was reasonable, however, seems to depart from the criteria set out by the Supreme Court.

For example, the daughter alleged she was ‘shoved’ and ‘thrown’ into the truck although not physically injured. Being thrown or shoved surely raises the prospect of bodily harm and the Supreme Court held that s. 43 can only apply to force that neither harms nor raises the prospect of bodily harm.

The Supreme Court held that force motivated by anger is not protected by s. 43. Yet, this court finds that the father’s anger does not preclude s. 43 as a successful defence.

The Supreme Court held that correction should not focus on the gravity of the child’s offence. Yet this decision clearly took into account the ‘nature of the issue calling for correction’.

The difficulty of applying these criteria to the use of reasonable force for restraint or control or for corporal punishment poses real danger for children; especially those from 2 to 12 years of age. Such force is still allowed by s. 43 as interpreted by the Supreme Court. These children are at a particularly vulnerable age and need clear protection from assault: not protection qualified by criteria that even judges find difficult to apply.

One could go on, and on. . But these cases show how variable and arbitrary the definitions under the Canadian guidelines really are. Was the hitting/pulling/shoving or sticking a sock in the mouth of a six year old for purposes of anger, or for correction or for the safety of others? While the legal guidelines explicitly rule out hitting to the head, a ‘slight push to the face for purposes of correction’ is deemed to be OK. And a knee to the head of a child is OK is “accidental” in the course of hitting for correction. The clear protections in the guidelines to the disabled are also, evidently, not absolute.

Furthermore, has the violence to the child been perpetrated by (a) the custodial parent or (b) non-custodial parent or (c) a bus driver acting in loco parentis? Under the Canadian cases I’ve cited, if (a) the parent has more latitude to assault the child than (b) even if (b) has joint custody, and (b) said non-custodial parent seems to have less authority than (c) the bus driver driving the school bus. Wacky stuff.

Is hitting on the head always unlawful, or not – or only if the knee to the head was ‘accidental?’ Is a blow to the head, or punch to the child’s body OK if it doesn’t cause visible bruising ? Is one blow only by a teacher OK - if it doesn’t cause permanent injury ? (R. v. Condon Newfoundland, 1993 ) In Canada it would seem, it is not OK to hit an 18 month old, quite OK to hit a six year old, but absolutely not OK to hit a thirteen year old.

The Boscawen Bill would throw the door wide open to just such bizarre and harmful conclusions. Compared to the legal minefield evident under Boscawen-like provisions in Canada, we can only give thanks for the relatively clear guidelines existent in the current law. Which as, everyone beyond the nutbar fringe can agree, appears to be working well. Now is the time to end the ridiculous end game by Larry Baldock and Co and finally let the Police get on with policing the current law with the sensible discretion they’ve shown so far. Again, it is puzzling to see a law and order party like Act showing such little faith in our Police.

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