International Law

R. v. Swan

An application of the Supreme Court’s decision in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) on the availability of the defence provided by s. 43 of the Criminal Code (”Correction of child by force”) in a case of assault.

Mr. Swan used force to throw his daughter, M., in his truck and take her away from her boyfriend, an apparently bad character who was getting her involved in drugs. According to the Supreme Court, s. 43 does not apply to teenagers in cases involving corporal punishment. The trial judge convicted after concluding that s. 43 was not available and “that the father?s actions did not constitute correction or discipline and that the daughter was not capable of benefiting from such correction.” On appeal, this was overruled and the following said in summary:

The trial judge was correct that the summary of Canadian Foundations in Martin?s Criminal Code includes the comment by the Supreme Court of Canada that s. 43 does not apply to teenagers, but a review of the case shows those comments were made in the context of a review of corporal punishment. The majority of the court concluded that corporal punishment of teenagers, particularly with the use of objects or blows or slaps to the head, is prohibited because it does not have corrective value. It did not hold, as the trial judge seems to have concluded, that any non-consensual application of force by a parent against a teenager is precluded in all circumstances. To exclude all force against teenagers takes the comments of the court out of context. The statute does not include an age restriction. Canadian Foundations did not prohibit the application of s. 43 in circumstances of restraint or control of an unruly teen. I find that the trial judge erred in concluding that s. 43 of the Criminal Code was not an available defence for consideration in the circumstances. He placed too narrow an interpretation on the meaning of correction and the child?s ability to benefit from it. The purpose of the correction was to return her to a safe environment. In these extreme circumstances, the Appellant?s use of force as corrective restraint was reasonable. I find the father was justified in his use of force to correct his teenage daughter, M.

Full post as published by Criminal Review on March 19, 2008 (boomark / email).