The New Brunswick Court of Appeal has ordered a new trial for a father convicted of assault for spanking his six-year-old son in 2009.
The province’s highest court, in a 2-1 decision that was delivered on Sept. 8, allowed the appeal saying the trial judge erred by applying "a subjective standard by delegating to an onlooker the determination of guilt or innocence."
The family was driving from Durham Bridge to a museum in Fredericton on Aug. 1, 2009, when the six-year-old boy’s behaviour caused his father to spank him. (None of the family’s names are used in the decision.)
The court document says the boy was yelling at passing cars, unbuckling his seatbelt, throwing things and kicking the back of his mother’s seat.
The father warned the child that if he continued to misbehave he would be spanked. After repeated warnings, the father ended up spanking the child.
Millicent Boldon, a Crown witness who watched the spanking, told the trial that she could hear the child yelling, "You’re beating me senseless. Stop. You’re hurting me." She said the boy was hit at least 10 times.
The trial judge sided with the Crown witnesses and, according to the Court of Appeal decision, said the appellant’s assertion that he only spanked the child two or three time was "ludicrous."
"When the trial judge stated that 'no spanking should go on and on to the point that strangers pick up the phone and call the police,' I am of the view she applied a subjective standard. Ms. Boldon's decision to pick up the telephone and call the police in those circumstances can be nothing but a subjective one," the ruling said.
"Obviously, some people faced with the same situation as that presented to Ms. Boldon might have called the police earlier and others might never have called," the ruling said.
Justices Richard Bell and Wallace Turnbull allowed the appeal.
The original trial was held on June 21, 2010, and the sentence was delivered on Aug. 18. The appeal was heard on Jan. 11.
Justice Alexandre Deschenes filed a dissenting opinion in the spanking case.
Deschenes wrote there was nothing to suggest the trial judge assessed the reasonableness of the spanking in references to the judge’s personal experiences.
"On the contrary, her decision was reached in light of the circumstances of the case and based upon the evidence she accepted. Her reference to the call made to the police was nothing else but another circumstance to consider on the issue of reasonableness of the discipline imposed by the appellant," Deschenes wrote.
Spanking has been a contentious issue in the Canadian legal system in the past.
The Supreme Court of Canada ruled in 2004 that parents have the right to spank their children. But the country's top court also set out "reasonable limits."
The 2004 ruling said spanking could be used against children between the ages of two and 12 years old. But children could not be disciplined with an object and hits to the head would also be unacceptable.