[ql06] CONSTITUTIONAL: Kicking kids & "correcting behaviour"
- From: "Ken Campbell" <2kc16@xxxxxxxxxxxxxxxx>
- To: <ql06@xxxxxxxxxxxxx>
- Date: Mon, 24 Nov 2003 22:16:05 -0500
Could the Supreme Court allow s. 43 of the Criminal Code to stand?
"Kicking kids to educate them?"
(We discussed this s. 43 thing in Torts once, as Sheldon and Sarah would
recall.)
Get rid of it. In class, we touched upon the ways to strike down
Criminal Code s. 43. Charter challenges, etc.
I think it is "too vague." And, if we strike it down, no Parliament
would dare get it returned with new, more legally correct formulation.
Ken.
--
You never know if you've got a happy ending
[to your life] until you finally die. I guess
_nobody's_ life has a happy ending if you
look at it that way.
-- Patty Hearst, 1982
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Court acquits N.S. father who kicked daughter
'Educational benefit'
Anne Marie Owens
National Post
Friday, November 21, 2003
A Nova Scotia court has acquitted a father who kicked his teenage
daughter after determining the kick was intended for the girl's
"educational benefit."
The case revolved around a swift, single kick that John Wesley Paul
delivered to his 17-year-old daughter's leg during a dispute in their
home in Indian Brook, N.S.
The pair had been sitting beside each other, arguing over the daughter's
request that she be given some money, and the argument escalated to the
point where the girl started swearing at her father. Mr. Paul warned the
girl against speaking to her elders in such a vulgar manner, and when
she continued, he kicked her.
The kick itself and its reasonableness as a use of force were never in
dispute in the case, which focused primarily on the motivation for the
assault.
The controversial section of the Criminal Code enacted more than a
century ago to protect parental discipline rights has been a matter of
dispute at court hearings across Canada for decades. Most cases revolve
around the issue of whether the force was reasonable or not.
This judgment by the Supreme Court of Nova Scotia last month comes as
the Supreme Court of Canada ponders a petition to repeal the federal law
that allows parents, teachers or guardians to apply "reasonable force"
to discipline a child, and as the federal government faces pressure from
the United Nations to ban all forms of corporal punishment to
youngsters, including a light slap.
As recently as this past summer, the federal government has defended its
child-discipline law, arguing parents need to be free to resort to this
kind of punishment in "mild to moderate measure."
In the Nova Scotia case, defence lawyer David Mahoney argued that
Section 43 was a necessary defence for assault for those, such as Mr.
Paul, whose actions are motivated by a desire to correct behaviour.
Justice Walter Goodfellow determined there was sufficient evidence to
support the finding that the father's action was "one of discipline or
correction. He viewed her conduct and foul language as non-respect for
her elders, which required discipline."
Prosecutor Robert Hagell argued it is counterintuitive to "ever suggest
that kicking has some educational value.... It defies logic, and even
all the evidence, to say you can ever teach anything by using this kind
of physical punishment. All the studies show it never teaches anything;
it always causes harm."
This summer, the Supreme Court of Canada heard a constitutional
challenge of the law by a children's advocacy group, The Canadian
Foundation for Children, Youth and the Law, which argued any spanking
was tantamount to child abuse. The court is still weighing the
challenge.
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