FREDERICTON, September 16, 2011 (LifeSiteNews.com) - A New Brunswick father who was convicted of assault for spanking his 6-year-old son in 2009 has been granted a re-trial by the New Brunswick Court of Appeal.
The court found that the original trial judge was too “subjective” in determining the severity of the spanking, and pointed out that Canadian law allows corporal punishment as long as the child is between two and 12 years old and only reasonable force is used.
In the original trial, the father told the court that he, his wife and their three children were driving from their home in Durham Bridge to a museum in Fredericton in August 2009 when his 6-year-old son became unruly. The court heard that the boy was screaming in the back seat, kicking the front seats, throwing things and unbuckling his seatbelt. The father said he repeatedly tried to calm the boy down and threatened to spank him if the bad behavior continued.
The mother eventually stopped the car and the father spanked the boy three times on the clothed buttocks, according to his testimony, adding that he slapped his own leg several times to warn the boy before administering the spanking.
Millicent Boldon, who testified at the original trial as a witness of the event, told the court she called the police after seeing the man slap the boy “at least ten times,” and heard the child yelling, “You’re beating me senseless. Stop. You’re hurting me.”
Another witness, Jim Burns, said he couldn’t tell if the father was striking the boy or not, as their backs were turned to him, but testified that he saw 18 “blows” delivered.
But Justice Richard Bell and Justice Wallace Turnbull said in their decision that they overturned the original conviction because the original judge, who is not named in the appeal ruling, erred in giving more credence to witnesses whose testimony was inconsistent than to the father, stating the original judge “applied a subjective standard when she said ‘no spanking should go on and on to the point that strangers pick up the phone and call the police.’”
According to Justice Bell, “In this case the trial judge’s sole basis for convicting the appellant flowed from the duration of the punishment. In my view she applied a subjective standard by delegating to an onlooker the determination of guilt or innocence.”
Brian Rushfeldt, President of Canada Family Action, told LifeSiteNews that while the New Brunswick Court of Appeal ruling corrected an unjust conviction in granting a re-trial, the state’s interference with parental authority to discipline is a “dangerous intrusion.”
“Canada Family Action has long been of the opinion that corporal discipline is one form of child rearing that must be left to parents,” Rushfeldt said. “The state and court, as in this case, has a very difficult time determining what is appropriate - they are not in the situation of the moment.”
“It is evident, I think, from this case, to determine the line between discipline and abuse/assault is difficult in a mild to moderate case,” Rushfeldt observed.
“Assault would normally have evidence of some damage to the individual such as bruises, fractures or bleeding. The court has said ‘no use of an object,’ ‘no hitting in the head’ which is reasonable, but to interfere with parents authority to discipline by spanking is simply a dangerous intrusion of the state/ court.”
“If there is evidence of assault then charge under that section, if there is not sufficient evidence then allow the father to be the father to correct the son’s behavior,” Rushfeldt concluded.
The date for the re-trial has not yet been set.
In 2004 the Supreme Court of Canada upheld the century-old “spanking law” but ruled, “Generally, s. 43 exempts from criminal sanction only minor corrective force of a transitory and trifling nature. On the basis of current expert consensus, it does not apply to corporal punishment of children under two or teenagers.”
The court also banned the use of objects, such as the common ‘wooden spoon’ to mete out discipline, saying: “Discipline by the use of objects or blows or slaps to the head is unreasonable.”