Understanding Canadian Law Four-Book Bundle. Daniel J. Baum
rise to the level of “cruel and unusual” remains subject to criminal prosecution.
A Poll on Spanking
Quebecers are far less likely than other Canadians to spank or slap their children. This was a finding of a Globe and Mail/CTV poll of Canadian parents conducted by Ipsos-Reid and published in a Globe and Mail article by Erin Anderssen and Anne McIlroy titled “Quebec Distinct in Nursery Too, Poll Finds” (April 10, 2004).
Nationally, 42 percent of those polled agreed with the statement that they had spanked or slapped their children for disciplinary reasons. Regionally, the results were as follows:
British Columbia 52%
Alberta 60%
Saskatchewan/Manitoba 46%
Ontario 45%
Quebec 22%
Atlantic provinces 42%
The age of the children did not seem to be a factor. Results were consistent among parents of children under five, aged six to eleven, and those twelve and over.
Nationally, the survey found that 60 percent of Canadian parents agreed with the statement that politicians and the courts are too involved in making decisions about how they parent. Regionally, the results were as follows:
British Columbia 61%
Alberta 74%
Saskatchewan/Manitoba 84%
Ontario 61%
Quebec 51%
Atlantic provinces 48%
The survey also found that most Canadian parents seem satisfied with the job they are doing as parents. A strong majority said they were doing as well (50 percent) or better (43 percent) at raising their children than their own parents did. More than 60 percent said they are more permissive with their children than their parents were with them.
The poll is considered accurate to within 3.9 percentage points, nineteen times out of twenty, although the margin of error is larger in the regional results.
References and Further Reading
* Cited by the Supreme Court of Canada
Anderssen, Erin, and Anne McIlroy. 2004. “Quebec Distinct in Nursery Too, Poll Finds.” Globe and Mail, April 10.
Bernard, Claire. 1998. Corporal Punishment as a Means of Correcting Children. Quebec: Commission des droits de la personne et des droits de la jeunesse.*
Canada. Department of Justice.1994. Reforming the General Part of the Criminal Code: A Consultation Paper. Ottawa.*
Canadian Bar Association. Criminal Recodification Task Force. 1992. Principles of Criminal Liability: Proposals for a New General Part of the Criminal Code of Canada. Ottawa.*
Canadian Committee on Corrections. 1969. Report of the Canadian Committee on Corrections — Toward Unity: Criminal Justice and Corrections. Ottawa: Queen’s Printer.*
Committee on the Rights of the Child. 2003. Consideration of Reports Submitted by State Parties Under Article 40 of the Convention, Thirty-fourth Session, CRC/C/15/Add. 215.
Department of Justice. Reforming the General Part of the Criminal Code: A Consultation Paper. Ottawa, 1994.*
Edwards, Steven. 2003. “Slap Spankers with Criminal Code, UN Advises Canada.” National Post, October 8.
Greene, Sharon D. 1998. “The Unconstitutionality of Section 43 of the Criminal Code: Children’s Right to Be Protected from Physical Assault, Part 1.” Criminal Law Quarterly 41, no. 3: 288–317.*
Law Reform Commission of Canada. 1984. Working Paper 38, Assault. Ottawa.*
McGillivray, Anne. 1997. “He’ll Learn It on His Body: Disciplining Childhood in Canadian Law.” International Journal of Children’s Rights 5, no. 2: 193–242.*
Newell, Peter. 1989. Children Are People Too: The Case Against Physical Punishment. London: Bedford Square Press.*
Sharpe, Robert, Katherine E. Swinton, and Kent Roach. 2002. The Charter of Rights and Freedoms. 2nd ed. Toronto: Irwin Law.*
“Spanking Is Permitted, But Mind the New Rules.” 2004. Globe and Mail, January 3.
Stuart, Don. 2001. Canadian Criminal Law: A Treatise. 4th ed. Scarborough, ON: Carswell.*
Vallis, Mary. 2003. “No Country in the World Has Criminalized Spanking.” National Post, October 8.
Wente, Margaret. 2004. “Worse Things than Spanking.” Globe and Mail, January 3.
Chapter 2
Violent Young Offenders:
Setting and Applying Standards
There are two public policies concerning youth that may sometimes conflict: (1) acceptance of the young as vulnerable and (2) the need to protect the public from violent young offenders. The first policy focuses on rehabilitation of the young rather than imprisonment, favouring help rather than punishment and removal from society. The second policy centres on what is needed to protect society from the kind of behaviour seriously hurtful to others. In effect, society, as a matter of principle, would hold the young offender to the same general standard of responsibility as an adult.
In this chapter, the tension between these policies will be expressed in real-life scenarios involving violent young offenders whose victims are often other young people. We will see how Parliament has tried to set new approaches by marking certain crimes as more serious and thus, in Parliament’s view, requiring greater youth explanation — or for the accused youth to face the prospect of treatment as an adult criminal.
Drawing the lines between youth and adult treatment is no easy legislative task. It requires words and concepts that may sound like legalisms, such as the term presumptive offence. But such words are intended to help judges, especially youth court judges, establish guides that might be followed by other judges nationally — and thus avoid judges making individual law that reflect their values and bias. Recall the youth court judge quoted by Justice Arbour in the spanking case, cited in the last chapter. That judge justified the spanking by saying it was no more that he (the judge) had experienced as a youth.
Among the issues discussed in this chapter are:
What is a presumptive offence under the Youth Criminal Justice Act?
What is the purpose of a youth sentence under the criminal law?
Can young people be tried and sentenced as adults?
Under the criminal law, does the Charter of Rights and Freedoms apply to young persons?
What, if any, consent must police get before taking a statement from a young person charged with an offence?
Are the numbers of violent young offenders on the increase?
In a general sense, the actions of “violent young offenders” could include any violent behaviour of the young. It might involve a young person who steals a car or drives it in a way that endangers the safety of others, including police officers in pursuit. Applying the criminal law to such behaviour is another matter.
The criminal law can involve penalties. For adults found guilty of a criminal offence, statute may compel a court to impose fines (the proceeds of which go to the State, not necessarily to the victim) or minimum terms of imprisonment. Such penalties are not primarily directed toward rehabilitation. During the time that someone is incarcerated, society is protected from that person repeating violent behaviour. But sitting in a jail cell may do little to reform the felon.
Imprisonment in a free society affects basic rights. The common law — that is, law made by judges — has long treated such government action with great scrutiny. The courts have strictly interpreted any action by government that would deny the liberty of a person. Indeed, much of the Charter of Rights and Freedoms is directed toward protecting the individual who