Section 43

Historical Background to Section 43

This idea has its roots in the past when corporal punishment of adults as well as children was legal and commonly prescribed for offences ranging from minor misdemeanors to serious crimes. Flogging, whipping and other methods of inflicting pain were routinely used in prisons, mental institutions and the military in the name of order and discipline. Flogging in the British navy was only abolished in 1879 and in the British army in 1881. Until 1972, our Criminal Code allowed persons convicted of certain offences to be whipped with a cat-o'-nine tails.

Corporal punishment of wives, servants and apprentices

Corporal punishment of children

By the 19th century, English common law had evolved to limit the corporal punishment of children. This evolution was confirmed by the 1860 decision in R. v. Hopley in which Lord Chief Justice Cockburn held that corporal punishment of children must be limited to “moderate” chastisement. In Hopley, a schoolmaster had beaten a 14-year-old boy so severely that the boy died of exhaustion from loss of blood. The schoolmaster had written the father and proposed beating the boy “to subdue his obstinacy by chastising him severely…if necessary, again and again…” The father had agreed. The schoolmaster was convicted of manslaughter for using excessive force and imprisoned for 4 years.

In 1933, the common law right of a teacher, parent or other person in charge of a child to administer punishment was confirmed by legislation in s. 1 (7) of the Children and Young Persons Act, 1933. In the 1935 edition of Halsbury’s Laws of England, the common law on the discipline of children is described in the following words:

A father has the right to restrain and control the acts and conduct of his infant child, and to inflict correction on the child for disobedience to his orders by personal and other chastisements to a reasonable extent. He may delegate this right to a tutor, or schoolmaster, or other person.

Judges applied this standard in the rare instances where assault charges were laid against parents or teachers. Reasonable corporal punishment continued to be considered an essential part of learning, discipline and moral development and was common in all classes of society. It included harsh beatings in the home and school, including ritualized beatings in the presence of other pupils at private schools for Britain's elite. This became the model for other British and colonial schools - many of which continued this kind of discipline into the 1950s.

When our criminal law was codified in 1892, this English common law defence was simply incorporated as part of our first Criminal Code. It has remained virtually unchanged by our Parliament since then.

In 2001, section 44 of the Code that justified the use of reasonable force by the master of a ship for "maintaining good order and discipline" was repealed. The repeal came into effect in Dec/03.

Children are now the only remaining class of Canadians that can still be legally assaulted in the name of correction. The time has come to eliminate this defence altogether.

A Note on the Quebec Civil Code

In the past, the Quebec Civil Code gave parents and teachers a right to use “reasonable and moderate correction” on children under their care. In 1977, the wording was changed but the message remained essentially the same. In 1980, the article was repealed. This may have had something to do with the UN 1979 International Year of the Child and Sweden’s civil ban on corporal punishment, or it may have been part of a general overhaul of articles affecting children. In any event, it is now clear that Quebec parents have no right in provincial civil law to use corporal punishment as discipline.

The relevant articles of the Civil Code are as follows:

Article 245 of the 1866 Quebec Civil Code

The father, and in his default, the mother of an unemancipated minor have over him a right of reasonable and moderate correction, which may be delegated to and exercised by those to whom his education has been entrusted.

Article 245b of the 1977 Civil Code

The person having parental authority has a right to correct the child with moderation and within reason.

In 1980, the above article was repealed.

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Judicial Attitudes to Corporal Punishment

Comment from 1927 and 1951

Anatomy specially designed for punishment

A Saskatchewan court in R. v. Metcalfe (1927) acquitted a school principal for striking a 10 year old girl on the buttocks with sufficient force to leave black and blue welts ...on that part of her anatomy which seems to have been specially designed by nature for the receipt of corporal punishment.

Hitting with iron bar and kicking to the ground go too far

The court in the Metcalfecase could find no decision in which a teacher had been found guilty of assault unless the assault was with a dangerous weapon such as an iron bar etc. or where the pupil is kicked to the ground or otherwise ill treated. Legal scholars from earlier centuries were quoted on the salutary effects of corporal punishment.

Contusions and bruises not unreasonable

The Quebec Court of Appeal in Campeau v. The King (1951) explained section 43 by stating: That the punishment naturally may cause pain hardly needs to be stated; otherwise its whole purpose would be lost...the mere fact that the children disciplined suffered contusions and bruises is not in itself proof of exercise of undue force.

Comment from 1990 to 2001

The following comments were made by judges in recent acquittals of parents and teachers when attempting to determine the meaning of "reasonable" in section 43.

Punishment causing bruises is not necessarily excessive
R. v. Wheeler,Yukon, 1990

Striking with a belt is perhaps a little distasteful but is authorized by law
R. v. L.A.K.,Newfoundland, 1992

Kicking and hitting an eight year old is well within the range of generally accepted punishment - mild compared to what I received as a child
R.v. K. (M),Manitoba, 1993

One blow only - no permanent injury
R. v. Condon,Newfoundland, 1993, (teacher)

Teacher's action may be disgraceful but it was not excessive
R. v. Bouillon,Quebec, 1993 (teacher)

Life and limb not endangered by using a belt
R. v. Atkinson,Manitoba, 1994

Slap to head not per se excessive force
R. v. D.W.,Alberta, 1995

A hard body blow was necessary for a submissive response
R. v. Pickard,Quebec, 1995

Community standards may not be relevant in judging force
R. v. Peterson,Ontario, 1995

Reasonable standard of force is elusive
R. v. J. (O),Ontario, 1996

Instilling respect even through fear is acceptable
R. v. Wetmore,New Brunswick, 1996 (teacher)

Injured dignity has corrective potential
R. v. Spenard,Ontario, 1996 (teacher)

Raising welts does not amount to bodily harm
R. v. N.S.,Ontario, 1999

Slap had a salutary effect on behaviour
R. v. Park,Newfoundland, 1999 (teacher)

Section 43 does not restrict discipline to what is appropriate or proportional or that it must be a last resort
R. v. Bell,Ontario, 2001

Case law recognizes and Parliament apparently sees using a belt as acceptable punishment, (judge expressed his personal view that using a belt is always unreasonable)
R. v. C. (G),Newfoundland, 2001

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Table of Acquittals

The purpose of the table is not to suggest that these parents and teachers should be prosecuted and convicted if s. 43 were repealed. On the contrary, we believe that if s. 43 were ended, these prosecutions would be unnecessary because there would be no need for prosecutions to determine whether the force used was reasonable and for correction. Instead, it would be made clear to parents and teachers that this defence to assault no longer exists. They could then be helped to learn alternative methods of discipline that did not involve violence.

Click here to download a PDF version of the Table of Acquittals. (Don't have Adobe Acrobat? Click here to download it for free.)

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Supreme Court of Canada decision

The Jan 30/04 decision of the Supreme Court of Canada on the constitutional challenge to section 43 was a split decision with 3 dissenting judgments. The majority held that lower courts must consider the section in light of the following criteria:

1. correction is not the result of the caregiver’s frustration, loss of temper or abusive personality;
2. correction is not punitive and does not focus on the gravity of the child’s wrongdoing;
3. the child is not incapable of learning because of disability or some other contextual factor;
4. force is not used against a child under 2 years or over 12 years of age;
5. force does not involve the use of objects or slaps or blows to the head; or
6. force does not cause bodily harm or raise a reasonable prospect of bodily harm and is of a minor, transitory and trifling nature.

See Constitutional Challenge chapter for other information and comment on this decision.

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Judicial Interpretation of Supreme Court of Canada Decision

R. v. Hodder  [2010]  NFLD and Labrador No. 35 Feb 3/10 W. Gorman, Prov. Ct.  J.

Facts: Father of 15-year-old boy charged with assault for hitting him several times in the face when boy returned home after 2-day absence without contacting father. Mother and father separated and son lived with father, bother and grandmother. Son claimed father had hit him several times with fists and witnesses described a black eye and a swollen lip. Father conceded that he hit son once in the face and that he was angry. Evidence that son struck twice was accepted.

Decision: Guilty

Reasons:  The Supreme Court of Canada indicates that s. 43 can be invoked only in cases of non-consensual application of force that results neither in harm nor in the prospect of bodily harm. This limits its operation to the mildest forms of assault. This force occurred as a result of anger and frustration and was not for disciplinary purposes. It resulted in bodily harm and is not the type of mild form of assault envisioned by the Supreme Court as being justifiable for disciplinary purposes. S. 43 allows immunity only for sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolic disapproval of his or her behaviour.

R. c. K. K. [2009] Quebec No. 14382 Nov 23/09 Joliette  P. Chevalier, J.C.Q.

Facts: (Our translation) 12-year-old son of accused mother had tied a kitten to his bed and while waiting for the mother to speak to him about this, tripped on a chair, fell to the ground and started crying. While on the floor, he didn’t respond when mother asked him what had happened. She held him on the floor and hit him 3 or 4 times with an open hand. Boy told the school bus driver and his teacher next day and hospital photos showed a black eye and some bruising. Mother charged with assault and claimed there was only one hit to son and this had simply been a reflex action.

Decision: Guilty

Reasons: To be guilty of assault requires intention. If this had been one blow only, it might have been considered a purely unintentional reflex action and not an assault. however, the mother’s action was intentional because there were 4 to 5 blows ands marks on the boy’s face.

R. c. G. H. [2009] Quebec No. 12972 Nov 3/09 Hull, P. Chevalier J. C. Q.

Facts: (Our translation) Father accused of assault, assault causing bodily harm, and threatening bodily harm to his 13-year-old daughter. He had been found guilty of assaulting her when age 5 yrs and had been put on probation and taken therapy to deal with his violence. After years of not living with father, daughter had returned to live with him. At the time of the recent incidents, daughter had come home late for dinner. Father sent her to her basement bedroom, followed her there and slapped her several times. She left and went to her aunt’s but father followed her there and struck her again. Police photos showed redness on her face, arms and thighs. On the way back with father, she complained of his treatment and was told she would be hit harder if she complained.

Decision: Guilty of assault causing bodily harm and threatening assault. Not guilty of common assault.

Reasons: There was not sufficient proof on first count of assault but photos showed excessive force on the second count, father admitted the hitting and there is no doubt he lost self-control. The Supreme Court decision was not referred to and the 21-page judgment deals mainly with different versions of the facts and questions by counsel.

R. c. Guimont [2009] Quebec No. 11213 Oct 13/09 Richelieu Louise Leduc J. C. Q.

Facts: (Our translation) Secondary school students were leaving their classroom for a group photo and were told by accused teacher to do so quietly so as not to disturb students in other rooms.  One of the students, age 14 yrs, did not pay attention and pulled at another student while leaving. After advising her twice to be quiet, the teacher, age 55, led her to the room of another teacher to resume her schoolwork. The student’s manner was “impolite” and teacher grabbed her by the shoulder, saying, “That’s enough”. The student claimed that the grabbing resulted in her being pushed against a wall.

Decision: Acquitted

Reasons: In an 11-page judgment, the law on assault is carefully reviewed; including reference to Blackstone’s dictum that the “law cannot draw the line between different degrees of violence, and therefore prohibits the first and lowest stage of it”, the common law defence of de minimis, and the Supreme Court decision on s. 43.  It found the teacher’s gesture reasonable after her warnings and the persistent arrogance of the student and held the force used was for discipline and was not unreasonable under the circumstances.

R. v. S. P. D. [2009] B.C. No.1484  July 20/09  N. Van  C. Baird Ellan  Prov. Ct. J.

Facts: S.P.D. is the stepfather of V. He and V’s mother were married at the relevant time but there was tension between the 2 of them re discipline of V, then age 13 yrs. The mother believed in discussion more than in confrontation.  SPD found some beer in V’s bedroom and an argument arose between him and V when V asked why he had gone into her bedroom. The next day when V was going to school, SPD wanted to talk to her about this and the beer, which he described as ‘stolen’ from him, and grabbed her by the arm to get her attention. He had not previously been violent or exerted any force toward her. The Crown's position was that SPD's behaviour constituted excessive force or violence used in anger or frustration for the purpose of bullying and not for correction. Consequently, it did not meet the requirements of the s. 43 defence.

Decision: Charge dismissed

Reasons: The Supreme Court of Canada held that in order to be non-criminal under s. 43, an action must be sober, reasoned force intended for correctional or educational purposes and designed to restrain, control or express symbolic disapproval. It must also be objectively reasonable in light of contemporary social consensus.

Parents have a duty to provide guidance and direction to children, and the Supreme Court held that force is permissible though not laudable, in doing so. The force here was not applied overtly as a corrective measure, but incidentally in an effort to speak to V about what SPD viewed as her unacceptable behaviour. As a parent, he believed he had a duty to provide guidance to V and was quite reasonably alarmed by her behaviour, including illicit possession of alcohol and her apparent refusal to acknowledge any wrongdoing. Far from acknowledging that, she had instead confronted him about going in her room. SPD had both a parental role in relation to V's completely unacceptable and dangerous behaviour, and a personal role as a member of the family who had been affected by her behaviour.

The Crown’s position is that SPD’s action was unnecessary. I do not perceive this to be the test. The case law talks in terms of whether behaviour should be criminalized, and I agree with counsel that SPD’s action should not. Historically, more severe force against children was considered acceptable, but the law has evolved. However, I do not believe it has evolved to the point where a stepfather in these circumstances cannot physically turn his stepdaughter toward him in order to continue a conversation about her out of control behaviour. Further, this action in relation to an adult in the circumstances would not be an assault, and it should not be criminalized simply because V’s mother disagrees with it.

R. c. Chouinard [2009] Quebec No. 8648 July 6/09  C. Chapdelaine, J.C.Q.

Facts: (Our translation) 7-year-old elementary school girl was skating without her mittens with other children during the school lunch break. The accused teacher noticed this and told her to find them. She rolled her eyes and did not pay attention. He grabbed her by her skating helmet to get her attention and shouted that she must listen when spoken to. She told her mother (who was watching) that this hurt her neck hurt and began to cry. The teacher was charged with assault.

Decisions: Acquitted

Reasons: There is no doubt that accused was acting as a teacher during the lunch break and is entitled to s. 43 protection. The force used was reasonable, any hurt to child was transitory and insignificant, and was for the benefit of her security and her need to respect the rules.

R. v. H. L. [2009] Ontario No. 3572 Aug 31/09 Ont Superior Ct.  C. Hill J.

Facts: Father appeals a 9-month suspended sentence after pleading guilty to assault with a weapon for striking his 13-year-old daughter on the palm of the hands 5 times with a belt because he was angered on learning she was associating with a negative peer group and not keeping up her academic studies. He was age 44, originally from Jamaica, had no prior criminal record, was regularly employed and felt remorse. No injuries were sustained in the assault. Character letters, including a letter by the daughter, described him as a responsible and loving father. His counsel submitted that a conditional discharge was an appropriate given his prior good character. On a previous occasion, a teacher had observed bruises on the girl’s forearm and she said she had been struck about 12 times by father with his open hand when she did not come inside the house when called. This incident was reported and an assault charge was laid but ultimately withdrawn.

Decision: Appeal dismissed and suspended sentence upheld. (A ‘suspended sentence’ indicates both a finding of guilt and a criminal record. The person charged is normally placed on probation. A ‘discharge’, either absolute or conditional, indicates a finding of guilt but no criminal record.)

Reasons: A conditional discharge for the assault of a child with a weapon by a person in a position of trust is contrary to the public interest. Notwithstanding the positive aspects of the offender's circumstances, the objectives of deterrence and denunciation would not be adequately served by a discharge. Corporal punishment with a weapon is a gross violation of the complainant's dignity and security of the person. The Supreme Court has stated that 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.

R. v. Maddison [2009] Nova Scotia No. 183 Ap 21/09 Kentville A. T. Tuffs Prov. Ct. J.

Facts: Maddison was an educational assistant employed at an elementary school with the primary responsibility of working with a 7-year-old boy diagnosed with Attention Deficit Hyperactivity Disorder and Oppositional Defiance Disorder. The boy was very aggressive and struck teachers and other students. She was alleged to have applied force to him that exceeded legal justification and was charged with 1 count of assault. Four educational assistants gave evidence of various incidents between her and the boy including grabbing by the throat, pinching, pushing in a chair, using a chokehold, dragging and cuffing on the head. The child clinical psychologist retained by the school board gave evidence on the behaviour of challenging children and explained non-violent crisis intervention techniques such as placing one's arms around the upper body, grabbing the wrists, and placing one hand on the child's chest to restrain him. The psychologist agreed that the boy could change from being settled in one instant to aggression in another. When not medicated his conduct could be characterized by "great, great aggression”.

Decision: Not guilty

Reasons: There is no dispute that the defendant is a "school teacher" for the purposes of s. 43. The section provides some legal justification for conduct that would otherwise be an assault. The Supreme Court has stated that while corrective force to remove children from classrooms or secure their compliance may be used, the use of corporal punishment is not acceptable. Among the criteria to be applied in such cases, it is wrong for caregivers or judges to apply their own subjective notions of what is reasonable. S. 43 requires an objective appraisal based on current learning and consensus, particularly supported by expert evidence.

R. v. D.L.M. [2009] B.C. No. 85994 June 17/09 Kamloops  S. D Frame, Prov Ct Judge

Facts: Father of 9-year-old girl, who did not live with her but with whom he occasionally visited, is charged with assault arising from an incident during an outing to a swimming pool. The girl objected to father’s insistence that he put his towel in her duffle bag and a loud argument about this ensued. The father grabbed her, pulled her forcefully by the arm along the sidewalk, slapped her back and face and was angry throughout. Although the father legally had joint custody, he seldom saw his daughter.

Decision: Guilty

Reasons: Although the accused is the girl’s biological father and has joint custody, this alone does not make him a ‘parent’ under s. 43, since a parent is someone who assumes all the obligations of parenthood. He has not done this, and as there is no evidence of delegation of authority by the mother, he cannot rely on s. 43.

Even if father were a ‘parent’, his actions cannot be justified under the Canadian Fdn. decision. They were motivated by anger, not by an intention to correct; there was a reasonable prospect of harm by pulling girl along the sidewalk and slapping her on the lower back; and although spanking itself, is not ruled out by that decision, the slap on the face certainly is. Most of the cases cited by counsel were decided previous to that decision and no longer fit its tests. Further, although Canadian Fdn. held it improper to focus on the gravity of the offence, there was no offence here by the child that required correction, so by definition, the force used by father cannot be considered ‘corrective’.

R. v. Demelo [2009] O.J. No. 2387 May 28/09  Brampton  S.D. Brown J.

Facts: Father charged with assault on 12-year-son after returning from football game in which his son had not played as well as expected. At home, a ‘profane tirade’ ensued by father against his mother-in-law, who was present at the home; son then swore at father; father warned that if son did so again, he would be slapped; son did so; father ran up stairs after him and ‘pushed’ his son’s cheek or forehead, causing son to fall and hit his head on father’s knee.

Decision: Acquitted

Reasons: Contact with father’s knee was likely accidental and slight push to son’s face was for purpose of correction and not criminal. As in R. v. K. (see our 2004 note on this case), not all slaps to the head are banned by Canadian Fdn decision. As Sutherland J. stated in R. v. K.:

There are other types of slaps to the head which, although they are assaults, are covered by section 43 because they do not amount to ‘corporal punishment or ‘discipline’ and they are ‘minor corrective force of a transitory and trifling nature.

Further, as in R. v. Peterson, decided before Canadian Fdn judgement, it is unrealistic to assume that parents discipline their children in a state of detached calm. Anger is part and parcel of correcting a child.

Comment: Like the decision in R. v. K., this decision ignores the Canadian Fdn case by finding that a ‘push’ to the head, and doing so in anger, are reasonable and allowed by s. 43. The chance of decisions like this being appealed are slim, given the likely reluctance on the part of both prosecutors and parents to subject children to further court proceedings.

R. v. B. W.W. [2009] A.J. No. 672 May 28/09  Calgary  P.B Barley Prov Ct. J.

Facts: Father accused of assault on 15-year-old daughter who became drunk in a park with other teenagers. One of the teenagers called her own parent to come to the park and they in turn called the girl’s parent’s. Father arrived, grabbed his daughter and started to take her to his truck. Another father intervened and police arrived. The girl’s mother and other witnesses said the father dragged the girl by her hair some 2 to 10 feet.

Decision: Guilty

Reasons: The rejection of the other father’s intervention and the admission by the accused that he was upset indicates he was angry. This would be an assault if committed on a stranger. Father is not entitled to the protection of s. 43 because pulling daughter’s hair has an element of punishment and a parent may not use corporal punishment on a teenager. He did not attempt to remove her verbally or with the assistance of the others there who were willing to help. His immediate resort to force is not reasonable. Canadian Fdn. seems to draw a distinction between corporal punishment and corrective force to remove a child from a particular situation. Teachers may use the latter but not the former and it is logical that parents also have the same power.

R. v. Morrow [2009] Alberta Ap 21/09 Medicine Hat LeGrandeur Prov Ct. J.(18 pages)

Facts: A 38-year-old bus driver for special needs children is charged with assault on boy, age 6, who was “freaking out” on the bus and would not stop when told. The boy was in foster care and when the bus dispatcher contacted the foster mother about his behaviour, she said to speak to him “firmly”. The boy was moved to the back of the bus but started pulling at the bus levers. The driver then taped the child’s wrists to the seat and put a sock in his mouth. When the boy spat it out, the driver put it back and taped it to his head but the boy managed to remove it. The driver thought he had done his best in the circumstances for the safety of the boy and others on the bus.

Decision: Acquitted

Reasons: When a child is placed on a school bus, it must be presumed that the parent has delegated the power to correct the child for his own protection or that of others. In this case, delegation goes further than implication, since the foster mother was actually contacted. The accused was not angry and the force used was not excessive but reasonable and for the purpose of protecting the child and others on the bus. All the criteria of s. 43 have been met.

Regardless of s. 43, the driver is also not guilty of assault as understood by the common law. As Arbour J. observed in the Canadian Fdn. case: “…the courts continue to be the guardians of common law defences.” The circumstances surrounding the use of restraint must always be considered; otherwise any act of restraint would be an assault.

C. c. M.M. [2009] J.Q. no 2158, March 2/09, Beauharnois, Roberge, J. C. Q. (our translation)

Facts: Father changed with assault with a weapon on 7-year-old son by threatening to break his fingers with a hammer and banging the hammer on a table near the child. The child had taken his grandfather’s wallet and hidden it in his bed and father said he had done this before.

Decision: Guilty of assault with weapon.

Reasons: Father’s aim was to frighten his son. He acted in anger and frustration and not with the aim of educating or disciplining. This and threatening with an object is not within the s. 43 defence.

R. v. C. G. [2009] A.J. no 246, Jan 22/09, Calgary, B.R. Fraser Prov. Ct. J.

Facts:  Mother (separated from father) charged with assaulting 7-year-old daughter while they were staying overnight at the house of a friend. She told her daughter to sleep in the basement but the child couldn’t go to sleep. She came back to her mother’s bed and mother told her that if she did so again, she would be hit. Child came back and mother hit her twice on arm and once on forehead. The father noticed arm bruises and swelling on forehead.

Decision: Guilty of assault on forehead. Not guilty of assault on arm.

Reasons: Although the child’s actions hardly seem like something for which she should be corrected, the Supreme Court decision states the nature of the offence calling for correction is not a relevant consideration. I must therefore accept that this is proper discipline because child ignored the warning, knew consequences and knew that her mother had hit her before for improper behaviour. I disagree with this. In cases where the nature of the conduct is extremely mild, the corrective measure taken should be a factor. However, I am bound by the Supreme Court decision.

The question then is whether the discipline was reasonable. Hitting a child with an open hand on the arm, in my view, by itself, is reasonable correction. The question is how hard it was can only be determined by the injury. The child said it hurt, but did not notice any bruise or welt. Her father and police described a bruise as big as a tennis ball, but I find it hard to believe an open handed slap could cause a bruise of that size. I accept that there was bruising on her arm and discolouration, but the extent or the size of that bruising I cannot determine from the evidence.

I accept that mother hit child on the forehead as part of the disciplining and that this caused some swelling but no discolouration. The Supreme Court has said that corporal punishment which involves slaps or blows to the head is harmful and will not be reasonable and that discipline by objects or blows or slaps to the head is unreasonable. There is no room for trifling or transitory blows or slaps to the head. Any such assault is unreasonable.

R. c. Deschatelets [2008]  J.Q. no 10501, Oct 2708, Quebec, H. Couture, J.C.Q. (our translation)

Facts: Physical ed teacher, who had taught for 25 years, charged with assault for taking a girl student by shoulders, holding her and pinning her by the hood and long hair with intention of taking her to office. The students were noisy and the girl had laughed at teacher’s attempts to quiet them. She became frightened and began crying.

Decision: Guilty of assault

Reasons: S. 43 allows light force with a transitory effect. It doesn’t excuse acts animated by anger or frustration. There is no indication that the attempt to correct had a beneficial effect. It humiliated the student and was not reasonable. According to the Supreme Court, it is not the gravity of the student’s behaviour but the action taken to deal with it that must be considered. Her behaviour was disagreeable and merited a warning but did not merit the actions of the teacher.

R. v. Olink, [2008] A.J. No. 1148, Sept 30/08, Edmonton, M.G. Allen Prov. Ct. J.
(26 pages)

Facts: The accused charged with assault causing bodily harm to a 7-year-old autistic boy who lived with her and the boy’s father. She had forcibly pushed the child into the shower, slapped him and hauled him down a flight of steps. This caused bruises to his face. The father testified that the accused was a good mother who took a tremendous amount of time with the 7-year-old and his 3 other children.

Decision: Not guilty of assault causing bodily harm but guilty of common assault.

Reasons: The Crown must prove beyond a reasonable doubt that the bruises amounted to bodily harm but failed to do so. S. 43 of the Criminal Code did not apply as a defence, as the intentions of the accused were not to discipline the boy or correct his actions. She was frustrated and angry when dealing with the child. It was clear she was not in control of her emotions when she slapped him and pushed him against the wall. Alternatively, the force she applied was not reasonable but excessive. Deemed consent did not apply, as it is limited to the objective standard of what an ordinary parent would do in similar circumstances. Neither did the defence of necessity.

R. v. T.M.D. [2008] A.J. no. 900, July 30/08, Calgary, J. Shriar Prov. Ct. J.

Comment: The question of whether s. 43 allows adults such as group home caregivers or daycare workers to use reasonable force to restrain children sometimes comes up. In this case, the judge is “prepared to assume” that although the group home caregiver was not a parent or schoolteacher and no evidence was given that she stood in loco parentis, she was nevertheless protected by s. 43 and was justified in using force for restraint. Further, that the 13-year-old living in a group home was justified in believing that the caregiver had no right to use such force and that resisting it was self-defence and she was therefore not guilty of assault.

Facts: TMD, a 13-year-old living in a group home, was charged with assault on a caregiver in the home who had restrained her for what caregiver perceived to be escalating misconduct by holding her by the shoulders to calm her down. TMD believed that the caregiver had no right to touch her unless she physically touched or threatened another person and said she did not touch caregiver until she herself was touched. As TMD left the area, she pulled caregiver’s hair, causing a sizable lump to the back of her head. In essence, TMD says she was assaulted first and any force she applied to caregiver was in self-defence. Caregiver admitted that holding TMD by the shoulders was not the prescribed method of restraint at the group home and she may not have been gentle in her handling of TMD.

Decision:  TMD not guilty. Her conduct may have put her in breach of the group home rules and regulations, but judge was not satisfied beyond a reasonable doubt that her conduct was criminal.

Reasons: Clearly the caregiver was neither TMD’s parent nor her schoolteacher. No evidence was called showing that her role at the group home had her "standing in the place of a parent", in the meaning of that phrase as used in Section 43. However, I am prepared for the purposes of argument to assume that she is covered by Section 43 and was justified in using force as she did. There was very limited evidence about the rule governing the use of force by caregivers at the home. I believe TMD’s claim that since she had not hit or threatened anyone she could not be validly restrained and her belief was reasonable.

R. c. J.B. [2008] J.Q. no 4099, May 14/08, Saint-Maurice, Lambert, J.C.Q.

Facts: 6-year-old daughter was usually picked up from school by father but on day in question he asked mother to pick her up, but the child reacted with anger and didn’t want to go with her mother. (Mother and father were separated.) Mother put her hand on child’s shoulder to turn her around to talk to her. Both were crying and in tears. Mother charged with assault.

Decision: Not guilty.

R. c. Therien [2008] J.Q. no 5929, June 10/08, Laval, Michel Lalande, J.C.M. (Our translation) 16 pages

Facts: Substitute teacher for a class of students in their early teens who had learning and behavioural difficulties charged with assault. Teacher had asked the class to bring in their Halloween candies for a math exercise. Most failed to do so and the teacher was annoyed. He asked the student complainant not to touch a computer and when the student did, he took him by the arms and directed him to the back corner of the room. Student didn’t want to stay in the corner and when he tried to leave, teacher grabbed him by the base of the throat to force him to stay.

Decision: Guilty of assault in grabbing student by throat.

Reasons: Although the first action in directing student by the arm is protected by s. 43, the Supreme Court Canadian Foundation decision makes it clear that grabbing by the throat is not.

R. v. Beck [2008] N.J. No. 110  NFLD and Labrador Provincial Court, Grand Banks, H. Porter Prov. Ct. J. April 14/08.

Facts: Father was talking to his mother, but was interrupted by 11-year old son who was trying to tell him something. Father was holding a small cooking pot, did not like being interrupted, and struck son on the top of the head with the pot. Son started to cry. His 13-year old sister called her mother and the weekend visit to father was cut short. The blow caused a small bump on the head. Father admitted to having struck son on the head with the pot, but maintained it was an accident. Judge found both children to be straightforward and reliable witnesses.

Decision: Guilty of assault with a weapon

Reasons:  Not all parents agree with corporal punishment, or with any physical discipline of children. Despite this, our criminal law continues to recognize the right of a parent to use proportionate force to correct a child's bad behavior. While the striking may well have been unintentional, it was no accident. Striking the child with the pot was an unreasonable and disproportionate application of force. To find otherwise would be to allow parents to lash out at their children with whatever might be at hand, something clearly outside the legislative purview of section 43, and well beyond the limits of the decision of the Supreme Court of Canada in Canadian Foundation case.

R. v. Mcleod  [2008] O.J. No. 1335 78 W.C.B. (2d) 519  Ontario Court of Justice C. Brewer J. April 8/08.

Facts: A video-taped statement was made to police officer and Children's Aid Society worker on Jan/07 at the Hospital for Sick Children about injuries to 3-year year old girl. Her mother was hurrying to catch the school van, but child was slow. She said her mother had beaten her by striking her face with an open hand, hitting her hand and stepping on her stomach. On the first day child testified, she adopted her statement but on her second day of testimony, about 10 weeks later, she recanted.

Decision: Guilty of assault

Reasons: Judge did not believe child’s recantation, nor did it raise a reasonable doubt in his mind. Doctor testified child had bruising and swelling to the left side of her face, including her forehead, nose, eyelids, cheek, lip, chin and neck. The swelling below the left eye and bruising on the chin and neck were also visible on the videotape. The number of different places on the face that were involved made it unlikely that the injuries were accidental. The petechiae (leakage of blood from the small blood vessels) on child’s abdomen were consistent with being stepped on by an adult wearing shoes. S. 43 is not applicable in this case. Mother’s actions did not involve force "by way of correction". S. 43 cannot excuse outbursts of violence against a child motivated by either anger or frustration: Canadian Foundation case. Further, mother’s actions in slapping child's face and stepping on her abdomen were not reasonable in the circumstances.

R. v. Swan [2008] Ont Superior Court of Justice, Mar 13/08, Picton, Justice C. Robertson

Facts: 15-year-old daughter had a history of running away from home and had been voluntarily placed in CAS care but at this time was back home. She continued to run away and had been taken in by boyfriend and his mother. A court order had been made restraining them from doing so. Father had seen daughter and boyfriend both under influence of drugs and had discovered drug paraphernalia in daughter’s bedroom.

In Nov/06, the time of alleged assault, daughter had gone to party with boyfriend, contrary to parent’s instructions. The father went after her, grabbed her by the shirt and ‘kind of shoved’ her into his truck to take her home. She ran back to the party and when father found her again, she was outside ‘yelling and screaming’. Father called police and she told them father had assaulted her. The assault charge was that he threw daughter into truck. At the time of trial, daughter was living elsewhere with parents paying her room and board.

Trial judge concluded on the basis of the 2004 Supreme Court decision that father’s action did not constitute correction and that, even if it did, daughter was not capable of benefiting from this correction. He granted father conditional discharge.

Decision: Appeal allowed and father acquitted.

Reasons: In holding that s. 43 does not apply to teenagers, the Supreme Court was referring to corporal punishment, not to the use of reasonable force for restraint or control. The trial judge placed too narrow an interpretation on the meaning of correction and the child’s ability to benefit from it. The daughter benefited from this correction because she returned home for a time and no longer associates with boyfriend

The father’s use of force was to return his daughter to a safe environment and the force was reasonable. She was not injured. The reasonableness of the force must be considered ‘in light of the nature of the offence calling for correction’.

As for the Crown’s argument that the father was motivated by anger, the trial judge did not exclude the defence of s. 43 on this basis. Anger and correction are not mutually exclusive concepts. As stated in the 1995 decision in R. v. Peterson, anger is part and parcel of the correction of a child and to think otherwise is unrealistic.

Comment: The decision accords with the Supreme Court’s distinction between the use of reasonable force for correction and reasonable force for restraint or control in holding that the father’s use of force was for restraint or control and hence within the ambit of s. 43. Holding that the force was reasonable, however, seems to depart from the criteria set out by the Supreme Court.

For example, the daughter alleged she was ‘shoved’ and ‘thrown’ into the truck although not physically injured. Being thrown or shoved surely raises the prospect of bodily harm and the Supreme Court held that s. 43 can only apply to force that neither harms nor raises the prospect of bodily harm.

The Supreme Court held that force motivated by anger is not protected by s. 43. Yet, this court finds that the father’s anger does not preclude s. 43 as a successful defence.

The Supreme Court held that correction should not focus on the gravity of the child’s offence. Yet this decision clearly took into account the ‘nature of the issue calling for correction’.

R. v. Sinclair [2008] Manitoba Court of Appeal, Feb 7/08, Scott, Monnin, Freedman, JJ

Facts: Father and family were visiting Winnipeg and staying in hotel where father was left alone to look after 5 children all under age 10. His 4-year-old daughter was being ‘disobedient and rambunctious’ and refused to go to bed. Father picked her up, ‘shook her a couple of times’ and threw her down onto the bed telling her to stay in bed and sleep. The child bounced off the bed, hit the wall and fell onto the floor. She later died from a subdural hematoma caused by the trauma. Father agreed he was angry and frustrated.

Decision: Manslaughter conviction upheld

Reasons: The principal issue is whether s. 43 is available to an accused who in frustration attempts to correct his daughter’s misbehaviour by using force that results in unintended injury causing death. The father argued that although his conduct was motivated by anger and frustration, it was nonetheless measured and reasonable in the circumstances and designed to be corrective and therefore he was entitled to rely on s. 43.

According to the 2004 SCC decision, s. 43 can be invoked only where force does not result in harm or the prospect of bodily harm. This limits its operation to the mildest forms of assault. People must know that if their conduct raises an apprehension of bodily harm they cannot rely on s. 43. The force must be intended for discipline and not stem from anger or frustration. Father’s argument is not valid.

Comment: For a conviction of manslaughter, the court had to find that the event leading to the child’s death was an unlawful assault. There apparently being no other defence available, the father argued that the assault on the child was justified by s. 43 and was not unlawful and therefore could not ground a conviction for manslaughter. This was clutching at straws, given the father’s anger and the extent of the force used – which could hardly be described as ‘mild’. On a policy level, the case illustrates the unintended consequences that can result from believing that force is acceptable for correcting children.

R. c. S. S. et G. R. [2008] Quebec No. 429 Jan 25/08 Trois-Rivieres M. Tremblay J.C.Q.

Facts: (Our translation) Adoptive parents of 3 boys charged with 9 counts of assault over a period of about 6 years beginning when the boys were adopted at age 4, 5 and 7 yrs. The adopting couple had a good income, large house with acreage and wood lot and an active and hard-working rural life. They had received glowing recommendations as prospective adoptive parents.

The boys had lived in deplorable and deprived circumstances prior to their adoption. At the time of trial, they were 15, 13, and 11 yrs. Assaults by the father included holding a boy’s head under bath water, frequent kicking, slapping, spanking, hitting with a wooden ‘baton’ and slipper and punching as punishments for stealing and failing to help parents with work on their property. The charge against the mother was for 1 count of assault, failing to protect the boys from the father’s actions and, in particular, being present but failing to intervene during the water punishment.

Psychologists and social workers intervened several times in the early the years to help parents use appropriate discipline but the father had fixed ideas on the need for “strict’ discipline and physical punishment and the file was closed. Father explained he had received much worse punishment when young, including being kicked, and believed he had worked hard, succeeded and wanted to raise the boys the same way. The boys were aggressive and difficult at school and after several attempts to advise parents that their actions were contributing to the boy’s difficulties, the school alerted child protection authorities.

Decision: Father guilty on 8 counts. Mother guilty on 1 count  

Reasons: In a 38-page judgment, the court went over the evidence re the alleged assaults in great detail and found all but 1 proven against father and neither reasonable nor justifiable under s. 43. The Supreme Court decision made it clear that only light force with a transitory and insignificant effect can be used to correct children and quoted Justice Binnie  to the effect that the court can evaluate actions according to prevailing social norms without requiring proof by experts. The father considered himself a good father, minimized the force he used against the boys, but was clearly untruthful about many of his actions. The couple had the potential to be good adoptive parents but the father had no faith in any disciplinary methods but those of his own childhood and refused to change.

As for the mother, the Crown argued that she had an obligation under the Criminal Code, the Quebec Civil Code, and the common law to protect her children from harmful treatment but “closed her eyes” to what was happening and was therefore guilty along with father. However, this was rejected as she had voiced her disagreement with father’s punishment, tried to change his approach, and collaborated with social workers and was guilty only of one assault in March/06.

R. c. Denault [2007] J. Q. Quebec, Longueuil, Oct 19/07, Bélisle, J.C.Q. (Our translation)

Facts: Daycare teacher charged with common assault on 4-year-old girl by pulling her by the arm. The pulling caused red marks that left the child sobbing and rubbing her arm. The marks were still visible when the child went home at the end of the day. The incident occurred after the 4-year-old refused to give another child a toy because the other child had not said ‘please’ as taught by daycare staff. Teacher denied using force and said the child was only pulled up in order to talk to her.

Decision: Guilty

Reasons: The right of correction given by s. 43 cannot be used as a defence because the child had done nothing to warrant discipline. The Supreme Court has clearly stated that s. 43 only applies to behaviour that needs correction. The only question is credibility and the evidence of witnesses is believed.

R. v. Palombi [2007] O.J. No. 2611, June 28/07, Ontario Court of Appeal (MacFarland, Rosenberg, Goudge JJ.A)

Facts: Mother convicted of aggravated assault on premature, 3 month old son and sentenced to 9 months imprisonment and probation. The baby had 8 fractures of legs and 1 of the rib. An expert in pediatric bone disease testified that the baby had osteopenia (weak bone density) and that normal handling of infant likely caused injuries. Crown experts disagreed. Mother denied causing injuries and among other grounds of appeal, argued that they must have been caused in normal handling and therefore consent can be implied.

Decision: Obviously the s. 43 defence could not apply given the age of the child. Neither could the common law excuse of necessity. A new trial ordered on other grounds. For purpose of the new trial, the Court of Appeal ‘chose to provide some guidance’ on implied consent.

Court of Appeal guidance on implied consent: The necessity defence is ‘awkward’ and courts have developed the concept of deemed or implied consent instead. The leading Ont case on the subject is R. v. Emans (2000) 146 CCC (3d) 449, a decision of the Ont Court of Appeal by Justices Catzman, Weiler and Laskin JJ. A. Only force that is necessary for care of the child can be justified. Such force must not be excessive and must be within the ‘customary norms of parenting’.

Comment: In the hearings on Bill S-207 by the Senate Human Rights Committee, counsel for the Dept. of Justice argued that consent could not be implied if the child objected to the force used. Counsel gave putting winter boots on an objecting child as an example where consent could not be implied. (See The Law, Committee Hearings on Bill S-207.) If this argument were correct, implied consent could never be a successful defence if the child objected or resisted – even though the force was needed for customary care. Since force is only needed where in fact the child objects, it follows that implied consent can be a successful defence where the force is needed for the child’s care – notwithstanding the child’s objections –  providing the force is ‘reasonable’.

R. v. C.M.T.U. [2006] Prov. Court, Vancouver, Dec 1/06, Watchuk, P.Ct. J.

Facts: Mother charged with common assault on 8 year-old daughter for pulling the child by the hair up 12 stairs to take a shower. The child resisted saying she had already taken a shower. Incident occurred in the morning after the mother had fought with boyfriend and had been drinking. Police arrived because of noise and found child hysterical, crying, and sobbing. Mother said she had pulled hair only once and had no intention of harming child but her evidence was not accepted.

Decision: Guilty of common assault

Reasons: The SCC decision clearly finds that s. 43 ‘delineates who may access its sphere with considerable precision… but identifies less precisely what conduct falls within its sphere’. The purpose was not the education of the child. The mother was angry and frustrated and the force was not minor or corrective. It was not justified by s. 43.

R. v. Rennato [2007] O.J. No. 1366,  April 11/07, Ontario, Pringle J.

Facts: Father and mother charged with common assault on son, age 11, and daughter age 13. Son hit on arms by father with doubled belt, leaving marks and swelling, and daughter hit twice with open hand on shoulders by mother when children arrived home late. They had often been late and daughter had often run away. Judge described their behaviour as ‘disturbing’. Son’s evidence was that father told him he only hit because he loved him. Parents denied hitting and claimed son had hit himself in a game.

Decision: Parents guilty

Reasons: Children’s evidence believed. Father had strapped by way of discipline, not anger, but the strapping was excessive and unreasonable. Although the mother’s hitting probably did not hurt daughter, the mother was angry and yelling and hit in anger and frustration. This was not corrective discipline and cannot be seen as trifling or de minimis.

Comment: The Supreme Court held that corporal punishment using objects such as rulers or belts is physically and emotionally harmful and will not be reasonable. If this is a clear ban on hitting children with objects, the finding that the strapping was ‘excessive’ or ‘unreasonable’ seems unnecessary. If objects are banned, there can be no such thing as a ‘reasonable’ strapping.

R. v. Persaud [2007] O. J. No. 1725, Toronto, May 3/07, Epstein J.

Facts: Schoolteacher charged with 14 counts of assault and 4 of assault with weapon on various boys in a class of 30 grade 1 and 2 pupils. The boys, some of whom had ‘behavioural and/or learning challenges’ claimed he hit them with a ruler or book and pushed their heads on to the desk and sometimes pushed them on to the floor. Teacher had taught for 30 years and frequently hit pupils’ desks with a ruler to make a loud noise to get their attention.

Decision: Acquitted of all counts

La Reine c. Dubois [2007] J. Q. No. 1921,Quebec, Longueil, May 3/07, Noël, J. C. Q. (Our translation)

Facts: Teacher charged with assault for twisting the arms of 3 pupils, age 10-13, forcing them on to the floor, to stand in corner for 1-3 hours and threatening them. The 13-year-old hurt his shoulder in one incident and the mark remained for 3 weeks. The teacher was working with another teacher in a class of pupils with behavioral problems.

Decision: Guilty of assault and threats of assault under s. 264 (1) of Criminal Code.

Reasons: Teacher admitted using a ‘clé de bras’(arm twist) regularly on some pupils. The force used was unreasonable in this case, although it may be reasonable in other cases. His words to pupils were threatening because they were said with a view to intimidating and making them feel afraid.

The accused reacted out of anger and frustration. The pupils were impolite, arrogant and insubordinate. But their behaviour is not a consideration that can be taken into account because the SCC has said that the gravity of the child’s wrongdoing is not relevant. The Judge said he agreed with the Supreme Court’s position on this.

R. v. Tourand 2007, Sask, April18/07, Benison J.

Facts: Father charged with assault for slapping son on cheek. The slap hurt but was not delivered with ‘full force’. The age of the boy is not given. He had argued with father’s partner who had asked him to do some cleaning up in kitchen. The judge described boy’s behaviour  as ‘obnoxious’ When father came home from work, he spoke to son about the need to show ‘respect’ but became angry and slapped him.

Decision: Guilty

Reasons: The slap was administered in anger or frustration and was not within criteria established by SCC decision. ‘A slap to the face could only be considered reasonable if the slap were slight and/or trifling.’

Comment: Although the SCC said ‘Discipline by…blows or slaps to the head is unreasonable’ and described them as ‘harmful’, this Court does not see this as an absolute ban on a slap to the face but as allowable if slight or trifling.

R. v. R (T. J.)  66 Alberta Law Reports (4th) 359, July/06,  Dunnagan J.

Facts: Father charged with assault against daughter who was just over 2-years-old. The child had taken off her diaper at daycare center and made a mess that upset the daycare workers. The parents were separated, both working, and made a joint decision to spank the child if it happened again. Some time later, the child did the same thing – at home – making even a bigger mess. The father said he had spanked her ‘2 or 3 whacks’ with an open hand on the bare bottom. The mother was shocked when she saw the child’s bruised and broken skin. This cleared up in a week and aside from this, the child was described as ‘fine’.

Decision: Guilty

Reasons:  The Court found the injuries were probably not intended but were consistent with anger and frustration. The broken skin may have been caused by a ring on father’s finger. There is no evidence of a lasting emotional or physical effect. The judgment of McCombs J. (in the case that ended in the Jan/04 SCC decision) on findings by experts are quoted, with the Court noting that the child was ‘barely past the 2-year threshold below which experts identify corporal punishment as both useless and damaging’.

Sentence: The Court said it would hear submissions as to sentence.

R. c. A. [2006] J. Q. No. 13818, Quebec, St.-Maurice, Nov. 17/06, Lambert, J. C.Q. (Our translation)

Facts: Father charged with assault on son, apparently age 12 at the time, by hitting, pulling hair, and grabbing him by the neck to force him to go to his room. The son had serious behavioural problems since very young and had not always lived with father. Father denied any hitting but admitted that he had grabbed his son to force him to his room when he misbehaved. During these times, father would become very angry and impatient with the boy.

Decision: Guilty. Although there was no proof that father had ever hit his son, he had used excessive force in getting him into his room.

Reasons: Father had to deal with his son’s rude and difficult behaviour, but treating him in this way was not improving the situation. The Supreme Court has said that s. 43 only allows force for correction and education and that it does not excuse force resulting from anger and frustration. The force used had no beneficial effect on the boy and the father should have found a better way to correct him. Trying to dominate the boy by physical force simply made the boys’s behaviour worse.

La Reine c. Y [2006] J.Q. No.10184, Quebec, Laval, Sept. 14/06, Lalande J. (Our translation)

Facts: Father, age 42, charged with assaulting 12-year-old daughter in 2004 by kicking her on the buttocks and hitting her on the shoulders when she argued with him after being suspended and sent home from school for getting into a physical fight with another girl. She was living with father because mother had found her difficult to deal with since primary school. The girl phoned police and went to live in a shelter after the incident.

Decision: Guilty

Reasons: The father’s actions were the result of impatience, exasperation and anger. These kinds of actions have a bad effect on adolescents and according to the Supreme Court decision are not allowed by s. 43.

The Queen v. Freedman 68 W.C.B. (2nd) 498, Montreal, Feb 20/06, Vauclair, J.C.Q.

Facts: Freedman touched a male parking service employee on the chest during an angry argument over a parking ticket and was charged with common assault. The judge found the touching was not a hard push as alleged but a touch simply to separate himself from the employee when the two came physically close during the argument. Freedman argued the de minimis defence, ie, that the push was a minor, trivial touching and that such trivial touchings are a valid defence to assault and should not be prosecuted.  Another charge of assault with a weapon for allegedly backing a car into the employee was dismissed as unfounded.

Decision: On the common assault charge, de minimis is a valid defence to such a touch and the accused is acquitted. This 24-page judgment reviews numerous appeal court and Supreme Court of Canada decisions including the constitutional challenge to s. 43 by the Canadian Foundation for Children, Youth and the Law. (See Constitutional Challenge chapter for information on this case.)

Reasons: Although some courts have questioned the existence of the de minimis defence, the defence is “well alive in Canadian criminal law”. De minimis, as well as being a defence, is also a barrier to unwanted prosecution. In this case, the Crown concedes that if the facts were as found, it would not have prosecuted. De minimis is not the only barrier to prosecution, as prosecutorial discretion and implied consent can also serve this purpose. Other Supreme Court decisions state that Parliament could not have intended to make trivial touching a criminal offence and that there has to a nuanced application of the law on assault. This does not mean that such touching is acceptable, but simply that it is not criminal misconduct.

Comment: This decision refutes the claim that s. 43 should not be repealed because repeal would result in criminal prosecutions for using reasonable force to put a child in a car seat or restraining a child during a tantrum. De minimis, prosecutorial discretion, and implied consent are all ways of preventing such prosecutions or of defending them in the highly unlikely event that such a charge were laid.

The Queen v. [S.(B. W.)] Prov. Ct. Sask, Saskatoon, July 10/06, Kolenick, PCJ

Facts:  Stepfather, age 27, charged with an assault with a weapon, a belt, on 13-year-old stepson. Boy diagnosed with autism and now living in a youth home. He had been very difficult for parents to deal with, frequently running away, making bogus calls to police, fire hall, restaurants etc. After one such episode, stepfather gave him a “spanking with the belt”, resulting in marks on his leg and arm. Stepfather had threatened but never used any corporal punishment on the boy prior to this occasion as he had been strapped as a child and did not believe in such punishment. He had tried to have an affectionate relationship with his stepson.

Decision: Guilty

Reasons: The court referred to several decisions on s. 43, including the Supreme Court decision in the constitutional challenge. According to it, every case will depend on its particular circumstances, the gravity of the child’s wrongdoing is not relevant, the parent must not act in anger but only for correction, and current social consensus on what is reasonable may be considered. The stepfather had reacted in anger and frustration, the force was not used by way of correction, the belt was a weapon, and the force was not reasonable under the circumstances.

Sentence: Father given conditional discharge with 12 months probation, plus a $50 victim surcharge fine and a DNA order.

Comment: Presumably, the boy was 12 at time of assault. Had he been 13, the court would have had to find stepfather guilty for this reason as well.

Even though the boy had been diagnosed as autistic, the court held he could understand the instructive purpose of the force used.

The Supreme Court's use of "current social consensus" to determine what constitutes reasonable force may conflict with its finding that only "minor corrective force of a transitory and trifling nature" is allowed by s. 43. Is there such a consensus? And if there is, is such trifling force really our current social consensus? In either case, should social consensus be a deciding factor at all on whether the Charter right to equal protection of the law has been violated?

Judges and others should stop referring to hitting a child with a belt as "spanking". McCombs J. defined "spanking" in the Ontario Court decision in the constitutional challenge as "one or two mild to moderate open-handed slaps to child’s bottom or legs". Hitting with an object is not part of this definition.

R. v. T. E. [2006] N.S.J. No. 61, Nova Scotia, Halifax, Feb 16/06

Facts: Father, a military police officer, charged with assault with a weapon for touching his 7-year-old son with a “heated lighter” in Mar/04. The son had lit a fire in some garbage. The burn left a scab on the boy’s arm.

The trial judge acquitted the father on the grounds that although the force was excessive, it was the result of negligence and not intentional. The touching was to educate the son on the dangers of playing with a lighter.

Decision: Acquitted by trial judge. Convicted on appeal.

Reasons: Supreme Court says the force must be educative or corrective, must not cause harm, must be reasonable, and that the gravity of the precipitating offence is not relevant. Law enforcement officials and judges must not use their own subjective views in such cases. The force used was not reasonable and the lighter was a weapon as defined by s. 2 of the Criminal Code. Section 43 is therefore not a defence and the father is guilty of assault with a weapon.

Sentence: Case remitted to trial judge for sentence.

R. v. M.U. and V. G. [2005] O. J. No. 4577, Ont., Toronto, Aug 17/05, Trafford J.

Facts: Mother and live-in boyfriend charged with assault, assault with weapon, administering a noxious substance and attempting to cause bodily harm in disciplining the 5-year-old-daughter of M.U. for failing to properly clean herself after bowel movements. The discipline included forcing her to eat her own excrement, hitting with a belt, standing in a corner for long periods of time that caused some pain in her knees, and a bare bottom spanking of about 6 blows by her angry mother.

Decision: Mother acquitted of assault by spanking. Boyfriend convicted of assault with weapon and administering a noxious substance. Neither guilty of attempting to cause bodily harm by standing child in corner.

Reasons: Investigation of assault charge was too superficial. There was a lack of medical evidence and no proof of injuries. The Supreme Court has said that the nature of the child’s offence is not relevant. It is not proved beyond a reasonable doubt that the spanking violates s. 43. There was no direct evidence of psychological harm by standing child in corner for long periods of time in spite of some physical discomfort in her knees. There was no intention to cause psychological harm.

Sentence: No information

R. c. G. O. [2005] J.Q. No. 7328, Dist. of Quebec, Quebec, June 1/05, Pelletier, J. C. Q. (our translation)

Facts: Father charged with assault with a weapon and common assault for hitting 7-year-old son on the arm with a shoe and slapping him on the face because he was slow in getting dressed. The boy said father was angry and that he had been slapped on other occasions. The slap didn’t leave a mark but son said it hurt and made him feel bad “in the heart”. He told his schoolteacher. The teacher agreed with father that boy was difficult to handle and recommended that he be placed in a class that could deal with his attention deficit problems. Father admitted hitting with the shoe and having lightly pushed him on the head but contended the latter was accidental.

Decision: Guilty on both counts.

Reasons: The father hit his son because he was angry. His purpose was not educational. The boy’s evidence was clear and truthful and is accepted. The fact that he needed clear guidance does not excuse the father’s actions. The Supreme Court has held that hitting with an object or on the face is not reasonable and not allowed by s. 43.

Sentence: No information

R. v. Kinch [2005] O. J. No. 3997, Ontario, Brockville, May13/05 Anderson J.

Facts: School bus driver, age 64, charged with assault causing bodily harm for pushing 8-year-old boy who was “roughhousing” with sister while getting off bus. Driver was angry, red in the face, grabbed the boy by his jacket and pushed him into a seat where boy struck bars on window. This caused a red mark 1” - 2” thick across his back.

Decision: School bus driver guilty of common assault.

Reasons: This was not reasonable force to control a child. The driver was angry, violent, and acted without forethought. The s. 43 defence therefore does not apply. However, the assault does not amount to bodily harm, which must be something more than trifling or transient. The injury was treated with pain killers at the time and the boy’s complaint of continuing back pain due to the assault was not proven beyond a reasonable doubt.

Sentence: No information

Comment: The Supreme Court of Canada decision in the 1984 Ogg-Moss case places strict limits on persons who can claim to be “standing in the place of a parent”. That decision would seem to rule out a school bus driver from claiming s. 43 as a defence, yet the Kinch decision assumes it applies.

The Jan/04 Supreme Court decision in the Canadian Foundation case holds that s. 43 allows only trifling, transient assaults. Apparently, an assault leaving a 1” – 2” mark across the back of an 8-year-old is only a trifle.

R. v. Foote [2005] O. J. No. 3260, Ont., Kitchener, May 6/05, Westman J.

Facts: Special education teacher charged with common assault on 7-year-old mildly autistic boy by kicking him on the leg. On the way to the school gym, the boy had “bolted” into a room and was dragged out by 4 teachers, including the accused, and taken to his own special classroom. There he began “flailing and kicking” because he wanted to go to the gym. The teacher contended that she did not kick him but only blocked his kicks by “mimicking” them in order to help him understand the effects of his actions.

Decision: Teacher acquitted

Reasons: In a detailed 17 page review of the evidence and law, the Court finds that the kick was merely mimicked, there was no mark and no actual contact with the boy’s leg. It was nothing more than a threat of a common assault, as opposed to a threat of bodily harm, and there was no evidence that the boy was traumatized emotionally or otherwise. No expert evidence of this was presented. The mimicked kick was an attempt to correct the child, was not motivated by anger and is within the protection of s. 43 as interpreted by the Supreme Court. The judge lamented the fact that the teacher was charged, expressed concern about the emotional effect of the trial on her, and suggested that these situations should be dealt with in a community rather than in a criminal setting.

Comment:  Although the judge reviews the majority decision of the Supreme Court at some length, he does not refer to its statement that s. 43 only allows teachers to use force for restraint but not for correction. As he specifically finds that the threat of the kick was for correction, his conclusion seems inconsistent with the Supreme Court judgment.

R. v. Brown [2005] Nu. J. No.10,  Nunavut, Iqaluit, April 18/05, Johnson J.

Facts: Foster mother charged with common assault for slapping 13-year-old girl several times breaking her glasses. The girl alleged she had been struck on other occasions but mother claimed she had only struck her once and had not broken her glasses. The mother was a former teacher from Nova Scotia, described as a perfectionist, and the girl was Inuit. She had wanted to adopt the girl but there was a history of trouble between them and the girl did not want to be adopted by her.

Decision: Guilty of common assault

Reasons: The defence claim that one blow is within the parental discipline allowed by s. 43 is not accepted. The girl’s evidence of several slaps that broke her glasses is believed.

Sentence: No information

R. v. Small [2005] N. S. J. No. 64, Nova Scotia, Digby, Feb.16/05, Boudreau J.

Facts: Father appeals conviction for common assault on 7-year-old son. A passing pedestrian stated she had seen father striking child on rear and face 6 or 7 times while father and other children in car. Older brother corroborated one striking on face. No evidence of marks on child.

Decision: Appeal dismissed and conviction upheld

Reasons: Although the trial judge did not mention s. 43 or the Supreme Court decision, he must have had s. 43 in mind. A slap on the face is not allowed by s. 43.

Sentence: No information

R. c J. M.  [2005] J. Q No. 109, Quebec, Athabaska, Jan.14/05, Judge Labbé (Our translation)

Facts: The accused, a pig farmer, and his wife adopted a 4-year-old boy from Thailand in 2001 but the wife rejected the boy. This caused tension and the relationship between the couple deteriorated. The 50-year-old husband began disciplining the child by subjecting him to cold baths, beating with a stick, hitting in the face, forcing him to eat his vomit, smearing him with excrement because he soiled himself and locking him in the pigpen where he was sprayed with cold water. The father sought assistance from the Quebec Adoption Bureau and the Protection de la jeunesse but the ill treatment continued for about 2 years. He also sought marital counseling. The couple separated. The father again approached protection de la jeunesse, the child was removed, and the father charged with assault. The child was later returned to his care.

Father pled guilty

Sentence:. Sentenced to 3 months imprisonment to be served in the community subject to various conditions including confinement to his house in the evenings and 12 months probation during which father must complete therapy with a men’s group and a psychologist. He was responding well to these measures, had no previous criminal convictions, had sought help, showed remorse for the abuse, and was not fundamentally violent. The relations between him and his son had improved and the child needed him. The prosecution had had an impact on the father, was known to his community, and his rehabilitation had already begun.

In coming to its conclusion, the Court referred briefly to the Supreme Court decision in the Canadian Fdn. case and reviewed the following recent sentences in Quebec cases of parental/daycare assaults against children.

Cases referred to:

R. c. Beaulieu, 2000   Father spanks 10-year-old son several times and throws him on bed. Conditional discharge, 6 months probation, and a $300 fine.

R. c. B.( F.), J. E., 1997  Father’s assaults against daughter from age 13 to 16 years described as bad treatment.  Sexual assaults also took place. Imprisoned for 6 months.

R. c. P.D., 2000  Father guilty of assault causing bodily harm, including a fractured arm, and sexual touching of stepdaughter beginning when she was 6 or 7 years old. He believed in strict family discipline but had become conscious of its ill effects. The prosecution and public knowledge of his actions must be considered and the court believed he would not re-offend. Sentenced to 23 months of imprisonment to be served in the community, with conditions including community service and 24 months probation.

R. c. Y. L. V.,  2002  Father acted as a dictator toward his 2 stepsons, demanding total obedience. His punishments left no marks and consisted of putting soap in their mouths, cold showers, forcing them to kneel for long periods, and putting them outside in winter with inadequate clothing. Instead of an atmosphere of support, the children lived under a regime of hate, terror and violence. He had also been found guilty of sexually touching another child. He denied his actions, refused to admit guilt, showed no remorse and refused to take any steps to understand his behaviour. Sentenced to 12 months imprisonment in the community subject to various conditions and 3 years probation.

R. c. Brisbois, 2002  A 5-year-old child in a daycare center owned by the accused couple was incontinent. In spite of reprimands, the child soiled himself. The accused wiped the boy’s face with the soiled underpants, hosed him down and invited the other children to make fun of him. Later the same day, the child again soiled himself and the accused struck him with his hand and belt. This method of correction had adverse physical and psychological results. Suspended sentence of 4 months and one-year probation.

Comment: The assaults in R. c. J. M. and in the 5 cases referred to in that judgment were all serious — in some cases severe and continuing over a long period. Except for one case that also involved sexual assault, none of the offenders were sentenced to jail. Yet, opponents of repealing s. 43 — including the Minister of Justice — continue to alarm the public by claiming that a “mild” spanking could result in parents being jailed. There is no evidence to support this claim.

R. c. S. J.-B.  [2004] No. 15788, Quebec, Trois-Rivières, Dec. 15/04, Bergeron J. (our translation)

Facts: Stepfather charged with 13 counts of physical and sexual assault against wife and stepdaughters and physical assault against stepson over a period of years. (Age of stepson unclear but probably about 10 years old.) The physical assaults included assaults with a weapon by hitting with a belt on legs and back. Stepfather described as controlling and authoritarian and justified his hitting as being a good father who had to discipline the children for poor school marks and because he was disciplined in this way by his own father. He described himself as the saviour of the 3 children and believed that one day they would thank him. The charges were brought after the children were old enough to leave home.

Decision: Guilty on 10 counts, including assault with a weapon.

Reasons: Section 43 is not a valid defence because the Supreme Court in the Can. Fdn. case has made it clear that hitting with a belt is not reasonable under the circumstances described.

Sentence: No information

R. c. D. P. [2004] J.Q. No.10753, Quebec City, Sept.10/04, Judge Dionne

(Our translation)

Facts: Mother charged with assaulting 6-year-old daughter in May/03 by hitting her twice on the shoulders and once on the mouth with the back of her hand. Two or three other children being looked after by the mother were present. A witness saw the incident, heard the child question whether she was bleeding, and told mother she had no right to hit children. Witness did not see any bleeding and was told to mind her own business.

Mother’s evidence was that child had been difficult to manage since age 2, that she had been consulting a doctor and community services for help prior to the incident, and that child had been particularly difficult that day by insisting that she be allowed to go to the corner store. Subsequently, the child was diagnosed as hyperactive and impulsive, Ritalin was prescribed, and the child’s behaviour improved. Child protection workers interviewed parents, helped them adopt a different method of controlling child, and closed file after 2 months.

Decision: Acquitted

Reasons: Hitting on shoulders is not proven because witness did not have clear view and mother’s evidence was that she was simply grabbing the child to get her attention. But the mother admitted the slap to the mouth and this has to be considered in light of the Supreme Court’s interpretation of s. 43.

The Crown contends that the child was slapped out of frustration and that the Supreme Court does not allow hitting from frustration or on the face. The mother was not acting out of frustration but trying to calm the child and prevent her from running to the store, which could have been dangerous. The mother had to do something. The slap was to bring child back to reality. Perhaps the defence of necessity could have been used instead of s. 43 but it was not pleaded. The mother believed she was disciplining the child and has raised at least a reasonable doubt on the question of frustration.

As for the part of the body hit, and the Supreme Court’s statement on hitting the head: although the slap was not de minimis, it was transitory and insignificant or, at least, there is a reasonable doubt on this point. Moreover, the slap had a calming effect. The force employed, even to the face, is not the kind of blow prohibited by the Supreme Court.

Comment: As in the Ontario case, R. v. D. K, where a 13-year-old was slapped in the face, this court is also reluctant to convict a parent, even where the Supreme Court seems to have specifically prohibited this type of assault. In spite of the Supreme Court, these lower courts are still condoning slapping a child on the face if the parent and court see the child’s behaviour as unacceptable. Supreme Court Justice Binnie’s view that appellate courts will “rein in overly elastic interpretations that undermine the limited purpose of s. 43” is unrealistic. It is difficult enough to put children and families through criminal trials. Appeals in such cases are unlikely. The solution is to repeal this defence, inform parents that hitting children is now illegal, and instead of prosecution, help them learn alternatives.

R. v. D. K., [2004] O. J. No. 4676, Ontario, Toronto, Sept 24/04, Judge Sutherland

Facts: Mother charged with common assault for slapping 13-year-old daughter on the face for ignoring her request to turn off TV. Daughter described blow as a “punch” that made her face feel numb and caused her to cry for rest of the evening. Judge rejected this description and found it a ‘light slap’.

Decision: Acquitted

Reasons: Child was not responding to mother and this was clearly disrespectful and unacceptable behaviour calling for correction. This was only a light slap and was minor corrective force of a transitory and trifling nature allowed by the Supreme Court’s Jan/04 decision.

The Crown argues that even if the force was reasonable, a slap to the head is per se unreasonable because of the Supreme Court judgment. The Supreme Court did not say this. A careful reading of the judgment shows that only slaps to the head that can be characterized as ‘corporal punishment’ fall outside s. 43. This light slap to the head is not ‘corporal punishment’.

Comment: This interpretation appears quite contrary to the Supreme Court judgment holding that blows to the head are not covered by the s. 43 defence. It shows that the guidelines laid down by the Court are not as clear as they may seem. This decision is essentially the same as it would have been before the Supreme Court’s Jan/04 judgment.

R. v. J. D. B,[2004], A. J. No. 814 Alberta, Calgary, July 8/04, Judge Wilkins

Facts: Father charged with assaulting 8-year-old son. Parents separated when child 1 year old but visited father every other weekend. No evidence that father had physically disciplined son previously. Child returned to mother after visit to father and relatives with bruises 7 in. wide and 4 in. long on lower back buttock area. Police photographed the bruises.

Son’s evidence was that father had grabbed and spanked him about 8 times when he told father to “shut up”. Father said son was out of control and was yelling that he hated being there, wasn’t coming back, was going to sue father, and live in a foster home. After the spanking, son cried and threw up. Father said child was spanked 3 times, denied being angry, and said spanking was last resort for purpose of discipline. The son had been tobogganing with cousins previous to incident. No evidence was presented to show whether the bruising resulted from this or the spanking. A short note on the decision was reported in the Ottawa Citizen of July 9. The incident occurred in 2002.

Decision: Acquitted

Reasons: The Jan/04 decision of Supreme Court of Canada thoroughly analyses s. 43 and decides how it is to be interpreted and applied. It is the binding authority and allows only “corrective force of a transitory and trifling nature…to address symbolic disapproval”. It cannot exculpate violence against a child motivated by anger or frustration. The photos of bruising are of no value as evidence because no expert witness was called to link them to the spanking. Although it is somewhat difficult to believe that the father was not angry, his statement denying anger is accepted. The force was minor, transitory and trifling and is allowed by s. 43.

Comment: The facts of this case show that the law continues to regard hitting as justifiable, even for a young child of divorced parents who is angry and confused in trying to deal with this situation. Most professionals who counsel and treat such children would be unlikely to see this as an appropriate parental response. Even though Wilkins J. found it difficult to believe the father was not angry, and despite the Supreme Court’s direction on this issue, he nevertheless accepted the father’s denial.

Where the cause of bruising or other injuries can be doubted, expert witnesses should be called to give evidence. This will increase the time and cost involved in prosecutions but without such evidence, injuries can easily be attributed to other causes and bruising spankings dismissed as trifling. To limit s. 43 as required by the Supreme Court, prosecutions will have to be thoroughly prepared and, if necessary, appealed to enforce these new limitations.

R. v. Galliani [2004] O.J. No. 2978, Ontario, July 9/04 Appeal, Judge Durno

Facts: Special education teacher charged with assaulting 13-year-old autistic student by a punch to the stomach. The student had a mental ability of a 3 to 5 year-old, was noisy, and would not be quiet when told. The trial judge acquitted the accused on the basis that there was no evidence of a punch and that it was a trifling issue. The incident occurred in 2002 and the trial judge’s decision was delivered in 2003 without written reasons.

Decision: New trial ordered

Reasons: The trial judge ignored relevant evidence and erred in law in holding that a punch would have to be proven in order to constitute an assault. Council disagreed as to whether the de minimis principle would apply but Durno J. held he did not have all the facts needed to decide this. The actions for which the student was being corrected are no longer relevant according to the Supreme Court decision.

Comment: Among other limitations, the Supreme Court holds that “…it is improper to retrospectively focus on the gravity of a child’s wrongdoing, which invites a punitive rather than corrective focus.” This is another limitation placed on s. 43. Previous judgments have held that the “nature of the offence calling for correction” should be taken into account in interpreting the scope of s. 43. The serious nature of the child’s wrongdoing will not, according to the Supreme Court, justify a more severe punishment.

R. v. W.E.S. [2004] S. J. No. 480 Sask. Broadview, June 30, 2004, Judge Green

Facts: Mother charged with 3 counts of common assault on 11-year-old-daughter. The daughter and her older sister had been playing with the family dog and a minor dog bite to older sister occurred. Mother felt that the younger daughter’s teasing of the dog had caused the bite. She slapped daughter once on the hip and buttocks, appeared to threaten her with a shoe, and then late slapped her and sister at least once on the shoulder for failing to clean up living room of house. Both daughters were apprehended by child protection services and subsequently returned. The mother was in police custody for18 hours. Incident happened in 2003. Both daughters were reluctant to testify.

Decision: Guilty on 1 count of assault. No information on sentence.

Reasons: Court must apply the scope of s. 43 as established by Supreme Court judgment. The first slaps to the 11-year-old were reasonable and for correction in order to teach daughter not to tease the dog in a way that could cause injury, even though the mother was mistaken in believing that the daughter had intentionally provoked the dog. It is doubtful that the shoe was meant as a threat. The third slapping was not connected with the dog incident and was neither corrective nor reasonable.

Comment: This 7 page judgment devotes 4 pages to sorting out when, where, how and why the slapping took place. Since the mother admitted to the first slapping, all concerned could have been spared the stress and expense of this trial if s. 43 did not exist. The mother could have been told that any slapping is illegal but would not be prosecuted if she accepted appropriate counseling and help. As a single mother needing help, this would have been a better outcome for her and for her daughters, quite aside from costs of the trial.

R. c. Martineau  [2004] No.13923, Quebec, Longueuil, June17/04, Judge Denys Noël (Our translation)

Facts: Daycare teacher charged with 5 counts of assault against 4 children for putting Tabasco and soap in their mouths, telling a child to bite another child, spraying child’s face with water, telling children to push a child, and telling one child that she, the teacher, would “kick him in the pants”. The children were between the ages of 17 months and 3 years. The teacher pled not guilty on the ground that the force was reasonable and for correction.

Decision: (14 page judgment) Guilty on 4 counts of using soap, spraying with water, and having classmates push a child.

Reasons:  Since the Supreme Court decision in the Canadian Fdn. case, parents and teachers no longer have the same protection under s. 43. The parties agree and the Court accepts that the daycare teacher was acting in the place of the parent and can therefore raise s. 43 as a defence.

Section 43 does not define ‘reasonable force’ and has left the task of deciding this to the courts in each case. This gave rise to different conclusions until the Supreme Court decision. The court is not bound by these prior decisions.  The Supreme Court has now established limits even though these may be difficult to define in some cases.

The court does not accept the defence argument that force cannot be found unreasonable in the absence of expert evidence. The social consensus found by the Supreme Court is a sufficient guide. The soap and spraying incidents against children under age 2 are clearly disallowed by these guidelines. Pushing a child by other children is humiliating and degrading. Moreover, the child’s mother did not approve of this method. The charges concerning Tabasco and telling a child to bite are not proven. No gestures or action accompanied the statement about kicking the child and this charge is dismissed.

Sentence: No information

Comment: The court in R.c. G. B. (April 8/04 above) treats the daycare teacher as a schoolteacher entitled to use reasonable force for restraint. In the Martineau case, the daycare teacher is treated, not as a schoolteacher, but as standing in the place of a parent and allowed to use reasonable force for correction. If this is so, it seems that daycare teachers as well as parents can legally use force for correction, but perhaps only if the parent approves.

R. c. D. É. [2004] J. Q. No. 8258, Quebec, Longueuil, June 28/04 Judge Gagnon

(Our translation)

Facts: Physical education teacher charged with 2 counts of common assault on 6-year-old girl. In the first incident in Oct/02, the child testified that she was not listening to instructions, run away from her gym group and was grabbed by the arm and forcibly sat down by the teacher. The teacher said the child was disruptive and was forced to sit for a time-out. In the second in Jan/03, the child was disruptive and refused to line up for gym class. The teacher grabbed her by the arm and collar of her sweater, pulled her to the door, and pushed her into the corridor where she accidentallyfell. There was conflicting testimony from another teacher as to the degree of force used and no evidence of any mark.

Decision: Acquitted

Reasons: Crown must prove beyond a reasonable doubt that force was used and that it was unreasonable in the circumstances. The accused does not have to prove that his version of events is true. It is clear that the force must be for the purpose of correction, rather than punitive, and that the pupil must be capable of learning. Here, the teacher did not act in an arbitrary, capricious or angry manner to punish the child, but only in order to correct her. There was contradictory evidence from a teacher who witnessed the incident as to the degree of force used and the child herself agreed that it was not violent or very strong. The court cannot conclude beyond a reasonable doubt that the force was unreasonable. It was justified because the teacher must fulfill his duties. This applies to both counts.

Comment: Given that teachers have a duty under provincial education acts to keep order in school, the decision appears justified. However, the same result could have been achieved without s. 43 because under s. 25 of the Criminal Code, everyone required by law to carry out a duty is justified in using reasonable force to do so. Section 25 of the Code could therefore have provided a defence. In addition, the common law allows parents and teachers to use reasonable force for restraint and control. Teachers do not need s. 43 and if repealed, could rely on these other defences.

R. c. G. B., [2004] J. Q. No. 4568, Quebec, Montreal, April 8/04, Judge Desbiens

(Our translation).

Facts: Daycare teacher charged with assault causing bodily harm to 3-year-old boy by seizing him and forcing him to sit when he wouldn’t sit for a group reading session, contrary to her instructions. The child was moving about banging a tin lid and sustained a leg fracture when he resisted being sat down on the ground. The fracture resulted from the teacher’s intervention and the child’s resistance. The incident occurred in 2002.

Decision: Guilty. No information on sentence.

Reasons: The Supreme Court, in addition to the limitation on age and implements, has also limited the section by holding that correction must be educational, that anger and frustration include impatience, and that force by teachers must be aimed solely at controlling the child. The interpretation of these limits must not be subjective. For teachers, force can only be used to ensure respect for instructions and this includes forcing a child to sit down to calm himself. The question is whether the degree of force used was reasonable. This degree of force was not reasonable. Such an experienced teacher should have foreseen the child’s resistance and risk of injury. This would have been the case at the time of the incident, as well. This is not a new test.

R. v. S.I [2004] O.J. No.5380, Ontario, Ottawa, March 11/04, Judge Ratushny

Facts: Aunt charged with 5 counts of assault with weapon consisting of bat, shoe, spoon and knife and 1 of common assault on 11 and 13 year-old orphan siblings in her care. The accused and children arrived in Canada in 1999 after traumatic experiences as refugees in African countries. The assaults allegedly occurred in 2000 and the siblings are now in the care of children’s aid. A witness testified that she had once seen aunt lightly slap one of the children for coming home late. She also gave evidence of a cut and slightly swollen lip and bruises on the children.

Decision: Acquitted

Reasons: The aunt has tried to be a mother to children and was strict with them because of traumatic experiences. There is only a written account of the children’s evidence from the preliminary inquiry as counsel agreed to spare them the stress of testifying again. There were inconsistencies in their evidence, and taking all evidence together, Crown has not proved assaults beyond a reasonable doubt. As for the open-handed slap, this is minor corrective force that was reasonable under the circumstances according to s. 43 and the recent Supreme Court decision.

Comment: The Supreme Court decision states that there are “a number of implicit limitations” on s. 43 that are agreed upon by experts on both sides of the constitutional challenge. One example given is “Corporal punishment which involves slaps or blows to the head is harmful. These types of punishment, we may conclude, will not be reasonable.” This appears to be an outright prohibition on slapping a child’s face, no matter how minor. Judge Ratushny, however, believes the Supreme Court interpretation of s. 43 allows such a slap.

R. v. D. P., [2004] N. L. No. 38, NFLD and Lab., Grand Bank, Feb. 11/04, Judge Porter,

Facts: Father charged with 2 counts of common assault for kicking 14-year-old daughter on the leg, leaving a bruise, when he found her hitchhiking with friend at 1:30 am. When home, he pushed her into house, yelling, and calling her a “slut”. Father was arrested and released and daughter spent month with foster family. Incidents occurred in 2003.

Decision: Guilty on both counts.

Sentence: Suspended for 1 year, with probation and requirement for counseling as recommended by probation officer. Father had 2 previous convictions for common assault.

Reasons: Accused argued that the assault was technical and trifling and that he should be discharged instead of given a suspended sentence. This is not an attempt to correct. The father was acting out of frustration and the force was not proportionate. Lower levels of force were not tried.

Comment: The judge cites the Supreme Court decision but does not decide the case on the basis that the daughter was over 12 years of age and therefore outside the Supreme Court age limit. Instead, he decides the case on basis that s. 43 is not a valid defence because the force was excessive and the father acted out of frustration. If the age limitation placed on s. 43 by the Supreme Court had been applied, the father should have been found guilty because of the daughter’s age alone.

The judge also refers to the Ontario Court of Appeal decision in Emans, [2000] O. J. No. 2984. This case reiterates the common law proposition that if a parent touches a child for the purpose of care or protection, the child’s consent can be implied. The touching, as long as the force is reasonable, is therefore not an assault. This clearly allows reasonable force for such actions as grabbing a child out of traffic, putting a child in a car seat, or restraining a child having a temper tantrum. Although the point is not strictly relevant to the decision, it is a useful reminder of the implied consent rule.

R. v. Storey [2004] O.J. No. 760, Ontario, city unnamed, Jan 22/04, Libman J.

Facts: Teacher charged with common assault on 16-year-old student. The student, on entering the classroom in the morning, had asked permission to use the computer. The teacher said “no”; the student asked a second time and claimed the teacher had agreed that he could. He had wanted to use the computer to email an important assignment he had forgotten and that was due that day.  On sitting down at the computer, the student and one witness testified that the teacher became angry, slapped his face, and pulled him out of the chair by his coat collar.

Decision: Teacher acquitted.

Reasons: The teacher “got into (the boy’s) face”, grabbed him by the lapels, and “tapped him on the cheek”. This grabbing and “making contact in the face area” to get the boy’s attention is justified by s. 43. The force was minor and of brief duration. The judge expressed reluctance to convict a teacher who was “well respected” in the community.

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