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June 19, 2008

Parental punishment found excessive in Canada

Fp9073hannahmontanabestofbothworlds Thanks to this humorous post from Eugene Volokh about a hard-to-believe true story, I found press reports here and here about a Canadian superiour court ruling about excessive parental punishment.  Here are the basics from this press account:

First, the father banned his 12-year-old daughter from going online after she posted photos of herself on a dating site.  Then she allegedly had a row with her stepmother, so the father said his girl couldn't go on a school trip.  The girl took the matter to the court — and won what lawyers say was an unprecedented judgment.  Madam Justice Suzanne Tessier of the Quebec Superior Court ruled on Friday that the father couldn't discipline his daughter by barring her from the school trip....

Lucie Fortin, the lawyer representing the 12-year-old, said the judge found that depriving the girl of the school trip was an excessive punishment.  She said the girl has already been forbidden to use the Internet and her father also punished her by cancelling her participation in an extracurricular event.

The trip, a three-day outing within Quebec supervised by teachers and volunteer parents, marked her Grade 6 class graduation from elementary school. "She's becoming a big girl. ... It's a unique event in her life," Ms. Fortin said. The girl's parents are divorced.  Her father has legal custody but for the past month she has lived with her mother, Ms. Fortin said.

Before Judge Tessier, she cited Sections 159 and 604 of the Quebec Civil Code, which allow minors in some circumstances to initiate court proceedings relating to the exercise of parental authority.

So, let's review.  In the United States, the Supreme Court and lower courts regularly dismiss legal challenges brought by juveniles (and adults) that claim that decades or life in prison constitutes excessive punishment.  But, north of the border, courts are apparently eager to declare a parental punishment in the form of grounding a 12-year-old girl to be excessive.  Hmmmm.  (I think I will call this the Hannah Montana doctrine: sing it with me closet Hannah fans, "Let's go, GNO.")

June 19, 2008 at 01:03 PM | Permalink

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Soon it will be that way here in the US. We are just a little behind eveyone else.

Posted by: Paul | Jun 19, 2008 1:38:09 PM

Paul:

"Soon it will be that way here in the US."

It's headed in that direction, as the welfare state/nanny state goobles up ever more parental authority and responsibility. This is the corollary of the notion that It Takes A Village To Raise A Child: pretty soon the village is going to tell you how to run your family. Those of us who prefer a different course remain quite persuaded that what it takes to raise a child are a responsible mother and father who expect and demand the best from their kids; teach them that they -- not society -- are responsible for their choices and actions; and love them enough to watch them fail in the short run so that, in the long run, when the parents are no longer there to protect them, they'll have the indispensable courage and confidence to know that failure can be overcome.

"We are just a little behind eveyone else."

Actually we're still AHEAD of everyone else, because we have had the sense, for the most part, to stick with American law and traditions rather than listen to our self-congratulatory "enlightened" international pals. This episode provides a window on how completely out-to-lunch their thinking has become.

Posted by: Bill Otis | Jun 19, 2008 2:16:55 PM

Tyranny.

Posted by: federalist | Jun 19, 2008 2:26:40 PM

federalist:

You put in one word what it took me two paragraphs to say.

Posted by: Bill Otis | Jun 19, 2008 3:32:11 PM

This is something really unAmerican about relying on a newspaper article about the law in a foreign (yet sophisticated land) to pass judgment upon it. We probably are not getting most of the story here. For example, it isn’t clear whether Fortin was actually the girl’s lawyer, or was a form of guardian ad litem. And, of course, it may well be that Canadians like it like this.

On a more general, level, I agree with Mr. Otis. It is time that the nanny-state end. A good way to do this would be to cut all budgets for law enforcement (and prosecutors) by 50%. This way, politicians would have to make difficult choices about what should be prosecuted.

So, to help Mr. Otis out, I provide the following examples of government overreaching that can be done away with in an ideal government.

1. Compulsory schooling. I have no idea what good school does for the lay people. Children of people that matter will go to the right schools, anyway.

2. The war on drugs. I think we all agree that prohibitions on any form of drug are a waste of money. The nanny-staters actually think it is acceptable for people to be prosecuted for using drugs. This is hardly controversial.

3. Speed limits.

4. Rules of professional responsibility for lawyers. The public should be able to use the free market to select which large law firm to hire. (Obviously, solo practitioners would be subject to regulation because we can’t trust them or firms with under 20 lawyers.)

5. Banking regulations. They never did us any good. People should use the free market to invest their savings.

6. All regulations regarding electrical safety. Duh.

7. Special courts for “domestic violence.” This is the height of nanny-statism. Right?

I am sure that Mr. Otis meant to condemn all prosecutions for adult pornography and obscenity, but it slipped his mind.

Posted by: S.cotus | Jun 19, 2008 4:20:41 PM

S.cotus:

"I am sure that Mr. Otis meant to condemn all prosecutions for adult pornography and obscenity, but it slipped his mind."

Look at anything legal you care to in your own home -- that being none of my business -- but you might want to spend a moment thinking about the prudence of advertising your enthusiasm over the Internet.

P.S. The fact that one sort of government regulation is a gross overreach scarcely makes every other sort, like speed limits, also an overreach. An argument like that is just silly.

Posted by: Bill Otis | Jun 19, 2008 4:29:35 PM

Mr. Otis,

First of all, as we both know, the issue of prosecutions for “obscenity” (which, in this case refers to adult pr0nography that is somehow more extreme than others), is a very live issue in the courts and in academe. While there have not been too many prosecutions for this (with the most recent one being presided over by Judge Kozinski), you would have had to be living under a rock in order not to notice this debate. And, because I am not ashamed of being an American, I have no problem admitting that I read all opinions from all courts of appeals, and follow most law review articles on First Amendment issues. Should I advertise this? Well, my clients seem to like the fact that I rarely need to use Westlaw. Reading all the law review articles makes me a hit at cocktail parties, where I can usually talk with people about articles they wrote in law school.

Secondly, your post assumes its own conclusion. You tell me that I can possess (I assume that you meant this) anything “legal” in my own home. However, my point is that the range of illegal material is too broad. In some ways the definition pushed by the government may be unconstitutional (in which case the material is legal, but some people are being prosecuted for it, anyway), and in some cases it may simply be bad policy to try and criminalize obscenity.

But, unlike you, I don’t think that there is a reason to hide behind the “do it in private” argument. Since non-obscene pr0n is constitutionally, protected, so is its production. Since I think that obscene pr0nography either should not be criminalized, or the constitution should be viewed as protected that as well (on policy grounds, since I am against the nanny-state, and anyone that disagrees with me is in FAVOR of the nanny state) so must the production and sale of this material. After all, any argument that says that people can “view” material, but others can’t produce or make it seems to be the height of nanny-statism.

As to speed limits, I think they are an overreach. First of all, they usually are too low. Second of all, not all countries use them, and many of them are quite nice. Third, usually speed limits are an excuse to tax motorists via tickets.

Posted by: S.cotus | Jun 19, 2008 4:45:39 PM

Bill, haven't you learned by now?

Posted by: federalist | Jun 19, 2008 5:53:58 PM

federalist:

Guilty as charged, your Honor.

In mitigation, I would plead addiction -- to college basketball, chocolate crepes, summer, and, it seems, trying to talk to those with, uh, unusual ways of thinking.

Addiction is a tough thing to break, as I fear I'm about to prove again.

Still, guilty is guilty.

Posted by: Bill Otis | Jun 19, 2008 6:05:30 PM

Once again, Mr. Otis makes a political point and refuses to respond to the legal arguments.

Posted by: S.cotus | Jun 19, 2008 6:16:20 PM

S.cotus:

"... you would have had to be living under a rock in order not to notice this debate."

Gads, S.cotus, has it taken you this long to figure out that I live under a rock?! Peter figured it out months ago. Bruce also figured it out, but he forgives me.

"And, because I am not ashamed of being an American..."

I sure am glad to hear it. It puts you ahead of the spouse of a well-known presidential candidate, who said that she had not been proud to be an American until about a month or two ago. I swear I'm not making this up.

"Well, my clients seem to like the fact that I rarely need to use Westlaw."

You have an unusual bunch of clients. I think most clients think "Westlaw" is the law in California.

"Reading all the law review articles makes me a hit at cocktail parties, where I can usually talk with people about articles they wrote in law school."

If I read "all the law review articles," my wife would have me committed. And I respectfully submit that you need to start going to some different parties.

I recently got roped into writing a sort of law review article on Booker, Gall, etc., for the Federalist Society magazine "Engage," but I'm swearing off. I should know better at my age, but as federalist correctly notes, I'm a slow learner.

"[Y]our post assumes its own conclusion. You tell me that I can possess (I assume that you meant this) anything 'legal' in my own home. However, my point is that the range of illegal material is too broad."

S.cotus, I used to be a federal prosecutor. I am still a lawyer. I can scarcely advise you to have what you want in your home WHETHER IT'S LEGAL OR NOT. As I have said here a zillion times, a person is absolutely free to try to persuade his fellow citizens and his legislators to change the law, but until he succeeds, he must obey it no matter how much he disagrees. The alternative is anarchy.

"But, unlike you, I don’t think that there is a reason to hide behind the 'do it in private' argument."

If it's illegal, I'm not urging you to "do it in private." I'm urging you not to do it.

"As to speed limits, I think they are an overreach. First of all, they usually are too low. Second of all, not all countries use them, and many of them are quite nice. Third, usually speed limits are an excuse to tax motorists via tickets."

I agree with some of what you say here. My agreement, however, does not confer on me the right to break the law. If I do, and get caught, I'll pay the ticket without complaining.

More broadly, if I want the benefits of the social contract, and I do, then it's up to me to live with its costs, from traffic tickets on up. And it also befits me, a man who was given so much from my ancestors who made sacrifices beyond anything I (or most people in this day and time) have been called upon to make, to show some gratitude for it, rather than engage in non-stop bellyaching about what an oppressive, imperialist, militarist, incarceration-happy country it is.


Posted by: Bill Otis | Jun 19, 2008 6:45:27 PM

Since the court, in its infinite folly, has assumed headship in this man's household and determined what constitutes excessive punishment of his 12-year old daughter, he ought in all seriousness to divorce her and release to the court all his obligations (financial and otherwise) in relation to her. The girl has demonstrated a lack of regard for her father, and the court has confirmed her in her low opinion of him, too. Most likely her mother supported her in her folly. Once he has divorced the child, any petitions for child support, college tuition, etc. should be directed to the judges who deemed his authority should not be respected in his house. Since they have deprived him of his moral responsibility to raise her to be disciplined and civilized, let them monitor all her daily activities and fund the necessities of her life. It would be a salutary lesson for both the child and the judges.

Posted by: Helen | Jun 19, 2008 8:09:28 PM

First of all, this is Canada. Second of all, none of you seem to have any access to the record. Commenting on court cases based on a newspaper article is really the act of a lay person. It is shameful and un-American.

Mr. Otis, You first must understand that I have no desire to possess any kind of imagery. I exist purely in text. I don’t like visual art. So, I have no use for any graphic imagery. In fact, I am a little suspicious of people that like graphics and pictures.

Now, here is where it gets complicated. I agree with part of what you said. I agree that if something is illegal you should not do it. For instance, right now, consensual oral sex between adults is illegal in Virginia. Will you join me in calling upon all straight Virginians to stop engaging in consensual oral sex because it is a crime, and instead bring suit against the commonwealth? I know at least two prosecutors in Virginia that openly have told people that they have broken this law.

If you don’t join me in this call, you are supporting crime.

But, also, Mr. Otis, you seem to be arguing that if an unconstitutional law must be followed. This is not a given. If this were the case, no action by the Supreme Court in construing the constitution, or any court would be enforceable, as people would be unable to

Third, I think you are just pounding the table and saying “if it is illegal, don’t do it.” But this is not what most people are arguing against. The question is *what* is illegal? To figure that out it seems in obscenity cases two determinations must be made: 1) is it covered by the statute; and 2) is it nevertheless constitutionally protected. Finally, you also don't seem to see the correlative problem: if possessing the materially is constitutionally protected (as far as I know, no legislature has "viewing" but correct me if I am wrong) so must the production.

Although I think you understand the nuances of this issue, because you say things for political impact, you keep repeating the same slogans over and over. I know you can do better.

Anyway, I await your statement on consensual sodomy in Virginia.

I disagree with you about speed limits. Although I always follow the speed limit (no exceptions), I think they are a limit on my freedom and there is no reason for them. I hope that you never exceed them.

Posted by: Scotus | Jun 20, 2008 7:12:08 AM

S.cotus:

"Anyway, I await your statement on consensual sodomy in Virginia."

It never occured to me that I would live long enough to run across a person who would breathlessly await my "statement on consensual sodomy in Virginia."

It really is true that you learn something new on this blog every day.

I'm going to diaappoint you again, I'm afraid. I'm not going to say a word about consensual sodomy in Virginia or anywhere else. I actually think Doug hosts this blog for a discussion of a different sort, but whether he does or not (which is for him to say, not me), I still would be taciturn.

Now I know it's your position that if I don't join you in your view, I am, as you put it, "supporting crime." So I think what you should do is report me to my old chums at the US Attorney's Office.

They have a heavy workload these days, so they could use a chuckle, and I just have to think that a report like that about their former colleague would have them rolling in the aisles. Indeed, I wouldn't be able to go back there for lunch, as I occasionally do, without having a dozen or so of my ex-mates give me a big, fat razzball about my latest views on "consensual sodomy in Virginia."

Posted by: Bill Otis | Jun 20, 2008 8:57:30 AM

Mr. Otis, There are a few problems with your argument.

1. Consensual sodomy is only a crime in Virginia under state law, therefore, I don’t see how you are believe that the US Attorney would prosecute it;

2. You seem to imply that even if you did commit a crime, you would somehow be immune from prosecution because you are “chums” with people; and

3. Just because someone offers moral support or is philosophically aligned with someone that commits a criminal act, does not mean that he is guilty of such a crime. Your failure to condemn those that engage in consensual oral sex in the state of Virginia means that you support such crimes, but not that you are actually guilty of them. (For example, there are many people out there that think that do not throughly investigate a restaurant to ensure that ever one of its employees and “contractors” is legally employed. These people are the cause of our illegal immigration problems. However, technically speaking they are not committing a crime by going to a restaurant that employs undocumented Irishmen.)

Posted by: S.cotus | Jun 20, 2008 11:17:53 AM

"Just because someone offers moral support or is philosophically aligned with someone that commits a criminal act, does not mean that he is guilty of such a crime. Your failure to condemn those that engage in consensual oral sex in the state of Virginia means that you support such crimes, but not that you are actually guilty of them. (For example, there are many people out there that think that do not throughly investigate a restaurant to ensure that ever one of its employees and “contractors” is legally employed. These people are the cause of our illegal immigration problems. However, technically speaking they are not committing a crime by going to a restaurant that employs undocumented Irishmen.)"

S.cotus speaks an infinite deal of nothing, more than any man in all Venice, his reasons are as two bits of chaff in two bushels of wheat--you shall seek all day ere you find them, and when you have them, they are not worth the search.

Bill, S.cotus is not very bright, but enjoys debating. He makes up for his intellectual limitations by throwing around nonsense and expecting others to think it profound. If he actually thought about some of these issues, rather than spouting off this crap, then he'd probably realize that there are lots of things that are just over his head and that maybe he really shouldn't be arguing with the big boys. The idea that people who go to restaurants are the cause of our illegal immigration problems is just plain silly--not because it is completely indefensible (in some small way he is correct--if no one went to restaurants, then we'd likely have less illegal immigrants), but that it is at once trite and bombastic, and implies a lot more than it states, and the trap is that you'll attack the statement rather than the implication. Moreover, it really isn't all that germane to the topic at hand in the first place. It's a silly little game he plays. It's annoying too, but remember, this is all he has. He thinks this nonsense provocative. Quite remarkable.

Posted by: federalist | Jun 20, 2008 1:14:31 PM

I should have written "fewer illegal immigrants".

Posted by: federalist | Jun 20, 2008 1:23:03 PM

S.cotus:

"Mr. Otis, There are a few problems with your argument.

"1. Consensual sodomy is only a crime in Virginia under state law, therefore, I don’t see how you are believe that the US Attorney would prosecute it;"

Check out the Assimilative Crimes Act, 18 U.S.C. 13. There are federal enclaves all over the state.

"2. You seem to imply that even if you did commit a crime, you would somehow be immune from prosecution because you are 'chums' with people;"

I would expect to be prosecuted with exactly the same frequency as any other citizen against whom this allegation was made, namely, with a frequency of zero.

We had to make decisions about how to spend the taxpayers' money. We thought it was better invested in prosecuting people like meth dealers (I know, I know, meth is good for you so it should be legal, and we're "mass incarerating" thousands of solid citizen meth dealers, etc., etc. -- but my former colleagues are going to keep prosecuting them anyway, until Congress says differently, so it's time to get some new material to supplant this "drugs-are-wonderful" line).

As to your third point, while I don't know what to think about your interest in my opinion concerning other people's sex lives (and therefore am not going to think about it at all), I am even more befuddled by your new interest in my restaurant choices.

By the way, do you ever eat lettuce? Do you not know that illegal immigrants are hired as lettuce pickers? Are you not therefore supporting crime?

S.cotus, please, give it a rest. The people responsible for illegal immigration are THE PEOPLE WHO CROSS THE BORDER ILLEGALLY. I am amazed at how many commenters on this blog insist that the responsibility for crime should be borne by everyone excpet the person who commits it.

federalist:

Guilty again, your Honor. Two counts! Do I get to invoke Double Jeopardy, since it's just a repeat of the same thing?

Posted by: Bill Otis | Jun 20, 2008 2:03:36 PM

Bill, you fall into the trap. First, you make a tu quoque arument (you eat lettuce too), and second, S.cotus' stated that the people who go to restaurants (without checking) cause illegal immigration. There's a kernel of truth to S.cotus' comment in that but for people going to restaurants, there'd be less illegal immigration. This is his debating tactic. Make a statement with some sliver of factual support, but that implies a lot more, and then turn the debate to the sliver of fact--as if that somehow means that the implication is supported. It's a cheap cleverness masquerading as erudition.

He's like the college kid who didn't read the book but asserts that some character in the novel or play is "naive". He has a stock tactic to twist a debate into knots by spouting off utter nonsense, e.g., how undiligent restaurant-goers are "are the cause of our illegal immigration problems." As I wrote (borrowing of course from the Bard), it's an infinite deal of nothing.

When he tries to actually write about something--e.g., selective incorporation, he falls flat on his face. This, of course, is hilarious, given his constant mentioning of how superior he is because he happened to go to law school, pass the bar and actually manages to get people to pay him for his services. He's a middling talent, with a vastly overinflated opinion of himself and a penchant for annoyingness.

And you don't get to claim double jeopardy--this is but one count in a multiple count indictment.

Posted by: federalist | Jun 20, 2008 2:26:40 PM

federalist:

No Double Jeopardy defense? Well phooey.

I think I'm going to have to change my motto to, "Sic semper tylettuce" (Thus be it ever to lettuce).

You know, come to think of it, I had some lettuce with today's burger. Better go turn myself in -- I wouldn't want to add to my growing list of crimes by being guilty of misprision of vegetable.

Posted by: Bill Otis | Jun 20, 2008 2:44:15 PM

Bill, so would you say I have S.cotus pegged pretty well?

Posted by: federalist | Jun 20, 2008 2:54:39 PM

federalist:

Yup.

As I was saying in an earlier post, I sometimes feel like he's speaking in a foreign language that I almost understand, but not quite. There's an occasional worthwhile thought, but it tends to get lost in a thicket I can't weave my way through.

Posted by: Bill Otis | Jun 20, 2008 3:27:18 PM

Two bits of wheat in two bushels of chaff . . . .

Posted by: federalist | Jun 20, 2008 3:48:43 PM

Bill, While you can congratulate yourself on having Federalist tell you that you are correct all the time, everyone else here makes actual arguments that are backed up by citations. Your best argument seems to be “I once did something for the government.”

Posted by: S.cotus | Jun 21, 2008 12:52:26 AM

S.cotus:

"Bill, While you can congratulate yourself on having Federalist tell you that you are correct all the time, everyone else here makes actual arguments that are backed up by citations. Your best argument seems to be “I once did something for the government.”

1. Some people here make actual arguments, and some of the time -- not very much -- they are backed up by citations.

In just this thread, I argued that, contrary to your claim, consensual sodomy in violation of state law could be prosecuted by the United States Attorney in Virginia, citing the Assimilative Crimes Act, 18 USC 13. You have declined to attempt to rebut this, with a citation or without. Why do you complain about the supposed lack of citations when, in a very recent instance in which one was given to you, you just ignore it?

2. When you accused me of "supporting crime" by declining to call on the authorities to proceed with prosecutions for consensual sodomy, I responded by, inter alia, turning your logic back on you. Specifically, I asked whether you were not "supporting crime" by eating lettuce, given that many illegal immigrants find work (and are thus "enticed" to enter the United States) in the lettuce fields. You make no argument, and cite no case or other authority, in rebuttal.

Again, you praise yourself as a man who wants argument, but when one is made, you just walk away.

3. It is true that I once did "something" for the government, that conspicuously unelaborated "somethng" being my job as an appellate lawyer in criminal cases in the US Attorney's Office. My experience gives me more than a layman's perspective on questions that have been raised here, such as whether the government would be likely to appeal the district court's sentence in case X or Y, and if so whether it would make argument A or B.

You seem to resent the fact that I did "something" for the government, but resentment is not a subject that interests me. Nor does your resentment extend to the many people here who are or have been defense counsel, and who cite that fact in explaining why they take one position or another on matters of both policy and law. Kindly quote for me a single instance in which you have upbraided them for noting THEIR experience.

Finally, if I did NOT disclose my long-time affiliation with the Justice Department, I would be accused of hiding my biases. And you would be right at the head of the line of accusers.

So you may nurse your jealousies as you may choose, but in between perhaps you can find the time to answer my citation to the Assimilative Crimes Act.

Posted by: Bill Otis | Jun 21, 2008 3:39:10 PM


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