Justice of the Peace Gustavo “Gus” Garza has a unique approach to justice.

He ordered the step-father of a 14-year old girl to spank his daughter in his Texan court, or threatened to fine her $500 and charge her for truancy.

And we’re not talking about any symbolic discipline here. The heavy hand of the law has instructed the use of a large and hard wooden paddle.

Mark Sossi, attorney for the family, said in the petition,

The paddles provided by the judge are of such heft and weight that an individual striking an animal with one might be reasonably reported for cruelty to an animal.

Garza claims that 98% of those in his court comply with the request. He’s been on the bench for a year, and has been practicing law for 26 years, including his time as a prosecutor.

The family filed for a temporary injunction that will be heard today at 10 a.m. before 404th District Judge Abel Limas, seeking damages and a court statement denying Garza’s ability to order corporal punishment, which is apparently prohibited by the Los Fresnos Consolidated School District policies. They are also seeking his removal for incompetence and official misconduct.

Law on the Law of Spanking

The issue of spanking in schools was raised in the Supreme Court of Canada decision, Canadian Foundation for Children, Youth and the Law v. Canada (2004), commonly known as Law v. Canada.

The Foundation applied on the violation of ss. 7, 12, and 15(1) of the Charter to strike down s. 43 of the Criminal Code,

Protection of Persons in Authority

Correction of child by force

43. Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.

Section 7 Analysis

S. 7 of the Charter states,

Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The first part of the test was conceded, that this section does affect the security of person of the children.

To assess if this infringed principles of fundamental justice, the court looked at 3 issues:

1) the principle that the child must be afforded independent procedural rights; (2) the principle that legislation affecting children must be in their best interests; and (3) the principle that criminal legislation must not be vague or overbroad.

Procedural rights were guaranteed by representation by the Crown. Principles of fundamental justice were defined using R. v. Malmo-Levine, [2003] 3 S.C.R. 571,

1. Must be a legal principle to provide meaningful content for s. 7, and avoid adjudication of policy matters
2. Sufficient consensus that the principle is “vital or fundamental to our societal notion of justice”
3. Capable of identified with precision and yield predictable results

Although “best interests of a child” was a legal principle, there failed to be consensus on the issue or precision due to contextual issues.

However, the dissent did state that the phrase “reasonable under the circumstances” was unconstitutionally vague, and violated s. 1, “as proscribed by law.”

The court did state though that both sides agreed,

Corporal punishment of children under two years is harmful to them, and has no corrective value given the cognitive limitations of children under two years of age. Corporal punishment of teenagers is harmful, because it can induce aggressive or antisocial behaviour. Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful. Corporal punishment which involves slaps or blows to the head is harmful. These types of punishment, we may conclude, will not be reasonable.

Corporal punishment of a teenager using a paddle would therefore be considered unreasonable in the Canadian context.