In a recent decision, the Supreme Court of Canada set limits on what force parents can use with their children. Basically, the force must be minimal and not the product of frustration.
Back to the decision. What was decided?
The majority decision (6 out of the 9 judges) found that the defence provision was constitutional as long as only reasonable force is used. The Chief Justice, Beverley McLachlin, wrote the majority decision. She said that the defence will only apply in situations of 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.
Degrading, inhuman or harmful conduct is not protected. This is a mouthful but what does it mean? Basically, it means that force is acceptable as long as it is reasonable under the circumstances.
In summary, the Court came up with a practical decision which recognizes that, in appropriate cases, a parent charged with assault on a child will be able to use the defence of reasonable force.
Maybe the best way to show the underlying rationale for this decision is to quote another part of Justice MacLaughlins decision where she was talking about what might happen to families where parents are charged; the resulting burden in part would be borne by children and outweigh any benefit derived from applying the criminal process.
Michael Cobb is a partner at the law firm of Cobb & Jones LLP. Should you have any questions for Ask A Lawyer, please direct them to the Simcoe Reformer or ask a lawyer of your choice.