In 2004, the Supreme Court of Canada considered the constitutionality of section 43 of the Criminal Code. Section 43 provides that what would otherwise be an assault on a child in not an offence if force is used by a parent, someone standing in for a parent or a teacher for purposes of correction and the amount of force that is used is reasonable in the circumstances.
The Court, in a 6 to 3 decision, upheld the legality of section 43. The majority found that the provision did not offend the fundamental rights of children as long as reasonable force was applied for corrective purposes. Having found that corporal punishment was not per se unconstitutional, the majority went on to conclude that such actions did not constitute cruel and unusual punishment. Neither did the Court buy the argument that the use of such force affected the “dignity” of children such that it constituted a breach of the equality section of the Charter of Rights.
It was a bad day for those who believe that any form of force applied to a child should be a criminal act and those that would rather see children being raised by the state rather than their parents.
In November 2006, a Picton Ontario father went after his 15-year-old daughter who snuck out of the house to meet her drug dealer boyfriend. When he found his daughter, he grabbed her by the shirt, forced her into his truck and began driving home. During the trip, his daughter managed to get out of the truck and wound up with her boyfriend that evening. The young girl had a history of rebellion and hanging around at all hours with her unsavoury boyfriend.
The father was subsequently arrested and charged with four counts of assault and choking. At trial, the judge relied on the Supreme Court of Canada decision. The top court had noted that while reasonable corrective force could be applied to children, it should not be used on babies or teenagers as it would not be effective.
The 15-year-old’s father appealed his conviction and last month Justice Cheryl Robertson of the Ontario Superior Court allowed the appeal and quashed the convictions. She concluded that the Supreme Court of Canada really didn’t literally mean that corrective force could never be used on teens; the Supreme Court was merely pointing out that actions such as spanking are hardly effective on teenagers and therefore could not be applied as a corrective measure.
Justice Robertson noted that the parents had had longstanding problems with this particular child and that discussions and refusing to allow her out to meet her boyfriend had not worked. The justice further ruled that the father’s actions, by using force in preventing his daughter from meeting the drug dealer who had caused a lot of problems for the family, had not crossed the line into a breach of the criminal law. The daughter, now 17, is still at home and her situation has apparently improved.
It is really hard to understand those who are pushing for the repeal of section 43. They would love to see all parents who use corrective force, such as the Picton father end up in jail or at least with a criminal record. They justify their position on the grounds that they “care about the children” but that’s not really true. If they really cared about children they would have some concerns as to what might have happened to the teenager if her father had taken, pardon the pun, a hands off approach to childrearing. But being forced into a car by the use of reasonable force is apparently worse than hanging around with drug dealers that, in similar situations, have led to serious injury or death. That really doesn’t matter though. It has nothing to do with caring about children and everything to do with ideology.
Those on the left are constantly preaching tolerance while at the same time refusing to tolerate anyone who disagrees with them and the controversy surrounding section 43 is a perfect example. No doubt these people would have handled the situation differently; they would have given the young girl a few condoms and clean needles and sent her on her way. But anyone who disagrees with them should automatically be guilty of a criminal act. And the fact that the father’s actions seems to have helped his daughter is of no real consequence.
It was nice to see some common sense used in ultimately finding the father not guilty of assaulting his daughter. He wasn’t acting like a criminal; he was acting like a father.
