On May 18, 2009, in the mens' change room of the Esquimalt swimming pool in Victoria, British Columbia, a naked little boy, about 4 years old, was stomping his little feet and absolutely screaming at a naked man.

"No! No! I'm not getting dressed! You are not my father!"

Playing to the other men in the change room, the adult openly laughed at the little boy's tantrum.

The little boy then screamed and screeched even louder.

Moments later, the screams escalated and could be heard from the workout room. At that, the adult male wrenched the little boy by his arm and dragged to the bench, forcing him to sit down, and angrily urging him to be quiet.

Norman Rockwell's SpankingIt was sickening and left bystanders unamused.

This was an assault, not unlike the leather belt fathers used on many of us when we were children, or the tree branch a mother would call her "switch".

Who has not seen a parent strike a child?

Many Canadians have - and are - subjected to corporal punishment by their parents or educators, something the law sometimes calls corrective force.

Historically, the defence has been justified on the grounds that corporal punishment - spanking and the like - is for the benefit of the child's education.

In his 1756 Commentaries on the Laws of England (Book 1), William Blackstone wrote:

"The power of a parent by our English laws is ... sufficient to keep the child in order and obedience. He may lawfully correct his child being under age, in a reasonable manner; for this is for the benefit of his education.

"He may also delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed."

More recently, as of 1892, Canada has provided a specific, statutory defense to parents, school teachers or person standing in the place of parents allowing corporal punishment upon errant children.

The corrective force defence is now at §43 of the Criminal Code. It is formally entitled Protection of Persons in Authority and reads as follows:

"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 is under his care, if the force does not exceed what is reasonable under the circumstances."

In Brisson v Lafontaine, Justice Loranger held that the schoolteacher’s power of correction could only be exercised "in the interests of instruction" and that "any punishment ... motivated by arbitrariness, caprice, anger or bad humour constitutes an offence punishable like ordinary offences".

In Ogg-Moss, William Ogg-Moss was a Mental Retardation Counsellor. One of his charges was Kent Henderson who was described at trial as:

"... very low functioning and profoundly retarded.

"In an apparent attempt to attract Mr. Ogg-Moss’s attention, Mr. Henderson spilled his milk on the table before him, whereupon Mr. Ogg-Moss shouted No! and struck Mr. Henderson five times on the forehead with a large metal spoon for the purpose, according to his later testimony, of punishing him for what he did."

Mr. Ogg-Moss had already been made aware of his employer's strict policy against the use of physical force in regards to his charges.

Ogg-Moss was charged with assault but tried to shield himself with §43 of the Criminal Code, cited above. The Court queried whether he qualified for the defence; specifically, whether Ogg-Moss stood in the place of a parent (in loco parentis).Spanking Saturday Evening Post Nov 1931 cover

The Court took away that shield when they found that Og-Moss did not qualify:

"The law as to correction has reference only to a child capable of appreciating correction. On this same basis there would be no right to punish a child who was mentally disordered.

"The relationship of in loco parentis does not arise from the mere placing of a child in the temporary care of other persons by a parent or guardian of such child. The relationship is established only when the person with whom the child is placed intends to assume the status of a parent—by taking on obligations incidental to the parental relationships particularly that of support and maintenance."

And yet, the corrective force defence has successfully shielded a babysitter from prosecution (R v Murphy).

Another important point was bound to hit the courts sooner or later. What constitites reasonable force is not adjudged by the standards of a recent immigrant's country or culture of origin, but by contemporary Canadian standards.

In 2004, Canada's Supreme Court agreed to hear a constitutional challenge of §43. A plethora of special interests joined the controversial action which resulted in a split Court in Canadian Foundation for Children, Youth and the Law v Canada. Writing for a bare majority, Chief Justice McLachlin:

"The issue in this case is the constitutionality of Parliament’s decision to carve out a sphere within which children’s parents and teachers may use minor corrective force in some circumstances without facing criminal sanction.

"(T)he person applying the force must have intended it to be for educative or corrective purposes. (The defence) cannot exculpate outbursts of violence against a child motivated by anger or animated by frustration. It admits into its sphere of immunity only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolic disapproval of his or her behaviour. The purpose of the force must always be the education or discipline of the child.

"Second, the child must be capable of benefiting from the correction. This requires the capacity to learn and the possibility of successful correction. Force against children under two cannot be corrective, since on the evidence they are incapable of understanding why they are hit. A child may also be incapable of learning from the application of force because of disability or some other contextual factor.

"Generally, §43 exempts from criminal sanction only minor corrective force of a transitory and trifling nature....

"It does not apply to corporal punishment of children under two or teenagers.

"Degrading, inhuman or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the head is unreasonable. Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment.

"The gravity of the precipitating event is not relevant."

In the tragic case of R v Sinclair, Garnet Sinclair's:

"... his four-year-old daughter, was being disobedient and rambunctious. She refused to go to bed. Eventually, the accused picked up the child, shook her a couple of times, and threw her down onto the bed telling her to stay in bed and to sleep. Unfortunately, the child bounced off the bed, hit the wall and fell onto the floor. Tragically, she later died ... the trauma."

On trial for manslaughter, Sinclair invoked §43 of the Criminal Code. Relying on the 2004 Canadian Foundation case, Sinclair was convicted. The Manitoba Court of Appeal:

"§43 only applies to the mildest forms of assault. It cannot exculpate outbursts of violence against a child motivated by anger or animated by frustration. The requirement that the conduct be corrective ... rules out conduct stemming from the caregiver’s frustration, loss of temper or abusive personality."

The incident at the Esquimalt Pool shows how ineffective the law can be in regards to a child's rights. The little boy was in no position to know or assert his right.

Many parents take grave offence to outside interference particularly in the moment of discipline when, already, their temper boils over. This can make the situation worse for the child.

Nor can any casual observor know the full circumstances of the correction.

But saved by the slimmest of margins by the Supreme Court, the clock appears to be ticking on §43 of the Criminal Code.

Some argue it is already dead.

Facing a charge of assault, which parent can truthfully say that he or she applied corporal punishment to his or her child, or a teacher to his or her pupil, other than as an unplanned last resort and thus necessarily "animated by frustration"?

With some deference to a Supreme Court made up of persons whose parenting years are well behind them, let's be honest.

The answer is hardly any.

Enter a 2008 case, R v Swan (also known as R. v BS), a father was competely out of ideas to stop his 15-year old daughter from frequenting drug hangouts so he grabbed her by the shirt and forced her into his truck, to drive her home. She told the police and the father was arrested and charged with assault.

The Court first noted very wise words from a 1986 decision of the Ontario Provincial Court (R. v Peterson):

"It is unrealistic to assume that parents discipline their children, whatever the nature of the infraction, in a state of detached calm. Anger is part and parcel of correction of the child. What is relevant is not whether the parent is upset, distraught, frustrated, annoyed or angry, but whether the parent is in control of his or her anger or emotions."

Even given the age of the child (15) and the clear evidence that the father's actions were "anger-fuelled", he was acquitted of assault based upon §43 of the Criminal Code.

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