Judicial Interpretation of Supreme Court of Canada Decision

Queen v. Burtis [2012] Alberta Provincial Court Jan 18/12 S.E. Richardson 2012 ABPC 12

Facts: Teresa Burtis, a substitute teacher in an early education class is charged with one count of common assault against G, a five–year- old boy with severe autism. The class was composed of 4 and 5-year-olds who required assistance in order to be ready for school. G repeatedly touched the ears of people he liked, including two boys in the class, ‘for sensory feedback’. Burtis loudly reprimanded G for this, and said she only cupped her hands over his ears and repeated “how would you like it if your friends did that to you?” but denied pinching G’s ears 10-15 times as alleged by the school principal. The principal testified that G’s behaviour regressed as a result.

Decision: Guilty of common assault.

Reasons: Teacher argued that her touching of the child was corrective and therefore relied on s. 43. The Crown argued that if the accused pinched G’s ears, the action is corporal punishment and is not covered by s. 43 of the Criminal Code.

In the case law, corporal punishment is vaguely defined as punishment or discipline but applying force for the purpose of punishment, discipline, redirection or correction is a continuum upon which it is difficult for the court to place the teacher’s actions. I accordingly analyze her actions under S. 43.

The teacher’s evidence is not credible. The Canadian Foundation case says that the nature of the offence calling for correction is not a relevant contextual consideration in a S. 43 analysis. In this case, there is no offence on the part of the complainant, but rather a resort to behaviour caused by his disability. However, G’s action is a relevant contextual consideration because G was repeatedly doing this to others in the classroom.

G was incapable of learning and therefore the force could not have been corrective. There was also a loss of control by the accused to a degree that the force cannot be corrective. The force used by the accused was not reasonable in the circumstances. We are long past the stage in our collective social development where we agree that you hit a child to get him to stop hitting others, or that you bite a child to get him to stop biting others. Similarly, it is not objectively reasonable for a teacher to pinch the ears of a 5year old severely autistic boy to correct his behaviour of ear pinching. Click for link to decision.

Comment: Para 38 of the majority decision in Canadian Foundation states that ‘…while teachers may sometimes use corrective force to remove children from classrooms or secure compliance with instructions, the use of corporal punishment by teachers is not acceptable.’ The Crown therefore argued that ear pinching was corporal punishment, implying presumably, that the teacher could be convicted on this ground alone. However, the judge apparently did not consider ear pinching to be corporal punishment and seems to assume that the Supreme Court majority was referring only to such ‘traditional’ punishments as strapping or spanking. The Supreme Court prohibition on corporal punishment by teachers is apparently not as clear as it may have seemed.

Queen v. YJC [2012] Ontario Court of Justice Jan 16/12 Harris J.

Facts: YJC pled guilty to a charge of assaulting his 10-year-old son with a weapon, ie, a hockey stick. Crown elected to proceed by summary conviction. YJC is before court to be sentenced. Crown asks sentence of 4-6 months and probation. YJC argues for conditional discharge.

YJC is a Korean citizen in Canada on a work permit. As a foreign national, he will be considered inadmissible and will therefore likely be deported if a conviction is registered. Father thought son not studying hard enough and that he lied to father. Father struck son several times on buttocks and thighs with a hockey stick with sufficient force to cause a number of large, ugly bruises. Son disclosed injuries to teacher, and since Dec, father has been in custody.

Decision: Conditional discharge and probation for 3 years.

Reasons: Section 718.01 of the Criminal Code came into effect in 2005 and provides that when a court imposes sentence for an offence that involves the abuse of a person under18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. S. 718.2(a) provides that evidence that an offender abused a person under 18 or in committing the offence, abused a position of trust or authority, this shall be deemed aggravating circumstances.

Father has accepted responsibility for his actions, feels remorse and has no previous record. Other than this offence, court has no reason to believe he is anything other than a good man. YJC clearly loves his children and hopes they will succeed in life. He understands now that he cannot continue in the same fashion and that acts that may have been permitted in Korea may not be permitted in Canada. He understands now that there are definite limits on the extent to which Canada, as a multicultural country, is prepared to accommodate customs from other cultures.

Father has been in jail long enough that the principles of denunciation and deterrence have been satisfied. If a conviction is registered against YJC, he will be deported. Judge is concerned about the impact that this will have on his children. I am satisfied that when I take into account the fact that YJC has already spent 36 days in custody, and the fact that a conditional discharge may provide the best means for me to protect the son, I am satisfied that a conditional discharge would not be contrary to the public interest here. Accordingly, I am granting YJC a conditional discharge and placing him on probation for three years.

Regina v C. J. D. Territorial Court of Yukon, Whitehorse [2012] Jan 26 Lilles T.C.J.

Facts: 26-year-old father, D, pleads guilty to assault on his 2 and 1/2 year-old stepson. The assault occurred on March/11, when child’s mother was out. Child had been crying and would not stop.  D. admits that on 3 separate occasions he went upstairs and spanked him in an attempt to stop his crying.  On one occasion, he held child by the face using his two hands, lifted him up off bed and dropped him back on the bed.  On at least one of these occasions, he put his hand over child’s mouth in attempt to stop crying. The following week, the bruising on child’s face and buttocks were noticed. Children’s services were contacted. D cooperative with them and police; fully disclosed what he had done and accepted full responsibility. Information filed with the Court strongly suggests that stress and alcohol were operating factors of this offence. 

D on bail conditions since the incident and has complied fully.  He has done everything recommended by children’s services, including living apart from partner for the 5 months and not having any contact with child for 3 months.  He has been seeing a psychologist monthly, is attending couples counseling, and this is continuing 

Decision: Conditional discharge and D placed on probation for 12 months. Judge advises D that if found in willful breach of conditions, Crown can apply to revoke discharge and to enter a conviction.  The Court may then impose any sentence that it could have imposed, instead of the discharge imposed today.

Reasons: The assault, as serious and regrettable as it was, resulted in shame, remorse, self-awareness, learning and maturity.  That, in turn, has resulted in positive changes. D asks for conditional discharge. Crown asks for 90-day conditional sentence of imprisonment and one year probation. While Parliament has directed that primary consideration be given to the principles of denunciation and deterrence in assaults on children, it has not precluded the use of conditional discharges or other community-based dispositions.  A period of imprisonment, whether conditional or actual, is not necessary to meet the statutory requirements of s. 718 of the Code. A discharge would be in the best interests of the accused.  He has no criminal record.  There is ample evidence that he is a person of good character and that this offence is inconsistent with his normal behaviour.

The more difficult issue to be decided is whether granting a discharge is contrary to the public interest.  Parliament chose not to define the phrase “public interest”.  A helpful analysis of “public interest” is found in R. v. Triplett, [2008] A.J. No. 958. The public interest includes acceptance of responsibility, an early guilty plea, and remorse by the offender.  In part, this relates to saving the State the expense and time associated with a trial.  Public interest is also served when victims are spared the anxiety and sometimes trauma of awaiting trial and testifying, and when an accused takes the opportunity to learn from his error and develops skills and knowledge that help ensure that a similar incident will not occur in the future. Both D and partner have worked hard to keep the family together by counselling and working with helping agencies.  This is not a case where the parties have separated and gone their separate ways.  The public interest demands that a discharge not be precluded in such circumstances.

If every case of excessive force by a parent by way of slap or spanking resulting from frustration or immaturity were prosecuted criminally, our courts would do little else.  Moreover, the Supreme Court of Canada (see Canadian Foundation) has recently established guidelines for force in disciplining children, indicating that there was a lack of consensus until recently and that changes have been taking place in our society with regard to the discipline of children. The introduction of the Domestic Violence Treatment Option Court in the Yukon has significantly increased reporting by victims and encouraged treatment and rehabilitation.

Family-based child assaults are probably underreported.  A non-punitive disposition that recognizes remorse and emphasizes rehabilitation will encourage disclosure and treatment and reduce reoffending. 

Comment: This is a good, detailed discussion of the public interest and conditional discharges and illustrates that a conditional discharge, rather prison sentence, is often the most appropriate response to cases of parental assaults against children. It shows that opposition to repeal of S. 43 on the basis that it will result in jailing ‘loving’ parents ignores the public interest in conditional discharges.

R v. Peifer [2012] Saskatchewan No. 068 April 25/12 B. Morgan, Prov. Ct. J.

Facts: Stepfather charged with assault on 13-year-old-stepson who had been falling behind in schoolwork. Usual punishment for this was to take away boy’s iPhone and iPad. When his mother asked for these, he would not surrender them. Stepfather came home shortly after this and mother asked for his help. Stepfather grabbed boy, pushed him against the wall, then to the floor, where he pinned him down by folding boy’s arms across his chest, and kneeling on his chest and arms while mother searched son’s pockets. Stepfather weighs 320 lbs; boy about 150. Stepfather continued to hold him in that position for some time until mother told him to release boy. He then left the house to drive around, as he wanted to calm down from what was a stressful situation.

Decision: Guilty

Reasons: Judge begins by noting SCC Ogg-Moss decision, in which S. 43 is described as a justification that exculpates a parent and others who use force in the correction of a child, because it considers such an action not a wrongful, but a rightful, one. He also notes the SCC Canadian Foundation decision that the force used must be for correction. Here force was used for restraint so that the boy could be searched. Further, the force was “motivated by anger” and “animated by frustration”. The extent of the force was unreasonable, as the sheer size of the accused meant that his actions went beyond what was necessary for restraint. Lastly, stepson was a teenager, and the action can hardly be called trifling. Nor can the harm be considered transitory, as boy put an icepack on his ribs for a couple of hours and was sore due to stepfather kneeling on him. All of these elements make it clear that s.43 does not apply in this case.

Queen v M.E. [2011] Ontario Superior Court of Justice Dec 14/11 Hill J.

Facts: Two sons and stepdaughter charge father with 17 counts of assault occurring between 1972 and 1989. These included hits with broomsticks and belts, slaps, punches and sexual assaults on stepdaughter. The father and children had emigrated from Guyana when sons were age 6 – 9 years. Children were all told ‘you don’t tell, you don’t talk, you don’t call the police, you don’t tell a doctor, you don’t tell anybody.   You don’t talk about it to anyone, not even each other’, ‘and said ‘That was drilled into us.’

Decision: Guilty on 12 counts

Reasons: This is a lengthy judgment that sets out the allegations in detail and discusses community standards, similar fact evidence, collusion, credibility and burden of proof; all mainly of interest to practicing lawyers. What is relevant to S. 43, is that the 2004 Supreme Court decision, Canadian Foundation v AG is referred to and that the ‘discipline’ of the children in 12 of the counts was not justified by S. 43 either before or after that decision.

R. v Bryan [2011] Ontario Superior Court of Justice May 16/11 J. Wilson J.A.

Facts: In 2008, Leonard Bryan, now age 36, went to police and reported physical abuse by his father Basil Bryan, who immigrated to Canada from Jamaica in 1975. Years later, when father discovered he had a son (Leonard) in Jamaica, he brought him to Canada. Leonard was then age 12 years. The abuse is alleged to have occurred between the ages of 12 and 18 years when Leonard breached the strict house rules set by his father. Details of the alleged assaults are given at length and in detail and included beating Leonard’s naked body using belts, extension cords, a piece of garden hose or a fan belt. When questioned by his counsel about whether he was a religious zealot, father answered that his faith governed “close enough to everything” in their family life. R.B.1, half sister to Leonard, also laid a charge in 2008 of historic assault committed by father between 1999 and 2006.  After Leonard left the home in 1994, he attended college, became a banker and has enjoyed a successful career. His half-sister, R.B.1 became a permanent ward of the Children’s Aid Society in 2006 when she left her father’s home. R.B.1 testified that she did not report the abuse while she was living at home as “I did not think anything was wrong with it at the time it was happening”. She “just took it”. Presently, R.B.1 appears to be doing very well in school and has thrived in foster care under the supervision of the CAS since 2006.

Decision: Guilty on all counts except one.

Reasons: The defence argues that Leonard and R.B.1 colluded with one another in 2008 and that similar fact evidence should not be introduced, but did not make any arguments to justify the degree of physical force used by father. Canadian Foundation decision is cited and it is not disputed that physical discipline using a belt, garden hose, extension cord or fan belt exceeds the legal limits of physical discipline. Father simply denied that physical force was used.

Queen v M.A [2011] Ontario Court of Justice Feb 9/11 D.A. Harris J.

Facts: Father charged with 3 counts of assault on his 6-year-old daughter in Oct/09. Parents separated and daughter spent every other weekend with father. Count 1 is an alleged spanking. Count 2 allegedly knocking her off bed. Count 3 shaking his fist at her. Father attempted to comfort child when he came up to her room in response to her crying.  Soon after, she began screaming and woke up her brother. Father cautioned that he would spank her again if she did not stop screaming. He spanked her after she began screaming a third time. Finally, he comforted her and explained why he had spanked her and that he still loved her. Mother conceded that child is a handful at times and does not always do what she is told.  She had had trouble with her to the extent that she had asked her doctor and the Children’s Aid Society for help.

Decision: All charges dismissed

Reasons: I am satisfied beyond a reasonable doubt that father struck child twice on her bottom with his open hand with sufficient force to leave bruises and that they took one to two weeks to go away. Crown argued that such bruises are not reflective of minor force nor are they of a transitory or trifling nature. I think there is some merit to that argument. I realize however that not everyone would necessarily agree. I think that the spanking was by way of correction. Judge notes 4 cases decided before the Supreme Court decision in Canadian Foundation in which blows had left marks on the child and S. 43 was a successful defence. He also notes comments in Canadian Foundation that s. 43 exempts from criminal sanction “only minor corrective force of a transitory and trifling nature”. He then asks what exactly is minor force?  What is transitory and trifling? The burden is on the Crown to establish that the force used was not reasonable under the circumstances and the Crown must do so beyond a reasonable doubt.  In all of the circumstances here I have such a doubt.

Comment: This judgment relies on decisions before the Canadian Foundation case and implies that the Supreme Court’s criteria of “transitory and trifling” are meaningless.

R. v. Gervin [2012] Manitoba MBQB Feb 7/12 Hughes J.

Facts: This was an appeal from conviction of a father on a charge of common assault on his 10-year-old son. Father claimed justification under S. 43. He was delivering his children back to their mother when his car became stuck in snow near mother’s house and asked son to help push car out of snow. Son was dressed in light clothes. When asked by father why he was not pushing, he responded (with some expletives) that his feet were freezing. Father got out of the car, walked up to his son (who was facing away from house) and told him to go to the house. Son looked at his father with what father described as a ‘look of defiance’, and then pushed son on the chest with both hands; son fell over backwards in the snow, got up and went in to the house where he apparently locked himself in his bedroom.

The trial judge held that pushing a child to the ground is not consistent with commonly accepted forms of corrective force in our society. While the accused did not likely intend the fall, the Manitoba Court of Appeal in the Sinclair case, has confirmed that an accused is not entitled to the protection of S. 43 where the consequences of the his actions are worse than intended. Further, where the force used to correct a child’s behaviour stems from the parent’s anger or frustration, it cannot be said to be objectively reasonable. While light blows, force intended to restrain a child from acting out physically, and force designed to guide a child to a reasonable destination – such as a timeout spot – are all clearly consistent with S. 43, this kind of force and frustration, are not. She did not believe the father’s denial of frustration.

Decision: Acquitted on appeal.

Reasons: The appeal judge disagreed; holding: ‘The fact is that there is no evidence that he did act out of frustration, and not accepting his denial still leaves an evidentiary vacuum on which to base a finding that he did act out of frustration’. Accordingly, he allowed the appeal and acquitted father.

Comment: Although this is not a case for a jail sentence, the nature of the push and the fact that the trial judge examined the accused and rejected his denial of frustration, suggests that the trial judgment was correct. A period of probation and parenting education could have been beneficial to all concerned.

R. v. Randell [2011] NFLD & Labrador Sept 20/11 Gorman J.

Facts: Father, age 51, employed as a commercial small boat fisherman, pleads guilty to assault of his 13-year-old son. Son was present during an argument about money between his parents in the basement of their house earlier in the day. Son believed beer was a source of problems in his family and took a bottle of beer and threw it on the floor, where it broke in front of parents. Soon after, father told son to ‘clean up the mess’ but son did not want to comply. Father chased and punched son on side of the neck with a closed hand and tried to direct him to basement. They struggled, with father attempting to push son down basement stairs. Son was holding onto a rail and father began hitting son’s arm to release his grip. Eventually son released grip and fell down 5 stairs to a landing. As a result, he bumped his head but no injury was reported. Scratches and red marks observed on son’s arms, chest and neck. Father concedes the assault, but argues that it was legitimate discipline allowed by S. 43.

Decision: Guilty. Sentence suspended with 12 months probation and conditions.

Reasons: The court must determine if force used by father is justified by S. 43. If not, what is the appropriate sentence? Section 43 does not justify the force applied by father. It was not for disciplinary purposes and occurred as a result of anger and frustration.

The court canvasses principles and precedents for sentencing. In general, father has good work history, indicating a prior good character—a mitigating factor. He has a number of previous convictions, including one for assault [apparently not on his son] and is a regular user of alcohol and marihuana. Defence argued this is an appropriate case for probation and that imprisonment would be excessive; referring to father’s guilty plea, remorse, and significant steps taken to rehabilitate himself. Sentence suspended with probation for12 months with ‘optional conditions’ being to report to a probation officer in person as required; attend all counseling or treatment sessions arranged by probation officer, strictly abide by all these arrangements; and perform 20 hours of community service.

S.S. v R., 2011 NBCA 75 New Brunswick Court of Appeal Sept 8/11 Justices Turnbull, Deschênes, Bell

Facts: Father convicted of assault for spanking his 6-year-old son in 2009. Apparently, the boy was yelling at passing cars, unbuckling his seatbelt and throwing things. After repeated warnings, the father stopped in a parking lot and said he spanked the child 3 times. Two witnesses who watched the spanking from their apartment, said they could hear the child yelling, and that he was hit from 10 to 18 times. Father denied this and claimed he was slapping himself on the leg as a demonstration of what would happen to the child. The trial judge found this "ludicrous" and said “No spanking should go on and on to the point that strangers pick up the phone and call the police”. No marks or bruising were found on the child when he was examined by social works 8 hours later that day and none were noticed by his grandmother who took him swimming that same afternoon.

Decision: New trial ordered by Justices Turnbull and Bell. Justice Deschênes would dismiss the appeal.

Reasons: Per Justices Turnbull and Bell – On the question of reasonableness: For the protection of S. 43, the conduct must be “by way of correction” and must be “reasonable under the circumstances”. Reasonableness must be measured against an objective standard. When the trial judge stated, “no spanking should go on and on to the point that strangers pick up the phone and call the police”, she applied a subjective standard by delegating to an onlooker the determination of guilt or innocence.

She would not, at that point, have benefited from all the attributes that convert a subjective decision into an objective one: for example, she would not have considered the appellant’s version of the incident, whether the child’s buttocks were covered, whether she might be mistaken about whether all slaps were administered to the child and whether the other witness’s observations and conclusions were identical to her own. Further, the trial judge failed to provide reasons for the apparent inconsistency re the lack of marks or bruising on the child given the testimony of a Crown witness about slaps to the bare skin and the testimony of another that he witnessed 18 “blows

On the question of process: The trial judge must explain to the parties why he or she did not accept the father’s testimony, or at least find that it did not raise a reasonable doubt. If this is not done, it constitutes an error of law, which results in a new trial. The trial judge’s analysis of the testimony does not indicate why the appellant’s testimony was not credible, nor why the Crown witnesses’ testimony was believable. Overall, the trial judge’s approach indicates she did not demonstrate why she was convinced by the totality of the evidence of the appellant’s guilt beyond a reasonable doubt.

Per Justice Deschênes This is a case where the trial judge made critical credibility findings. Although she accepted parts of the appellant’s testimony, she rejected those parts that she found “ludicrous” in light of all the evidence and, more particularly, the evidence provided by Crown witnesses. Based on the evidence she accepted, the trial judge concluded the spanking of the 6-year-old boy was corrective, but the number of blows administered and the duration of the spanking were “unreasonable; thus, the defense under s. 43 was not available. In my view, there is nothing to suggest that the trial judge assessed the reasonableness of the corrective force by referring to her personal experiences. On the contrary, her decision was reached in light of the circumstances of the case and based upon the evidence she accepted. Her reference to the call made to the police was nothing but another circumstance to consider on the issue of reasonableness.

On the question of process: My colleagues would impose upon a trial judge an obligation to analyse and verbalize the reasons why he or she does not believe the accused’s version of events and why such evidence does not raise a reasonable doubt in the judge’s mind. Furthermore, they would impose upon the trial judge an obligation to explain how, on the basis of the evidence accepted by him or her, the Crown has succeeded in establishing the guilt of the accused beyond a reasonable doubt. In a case before judge alone, reasons for judgment are given after a trial judge has explained why he or she arrived at a particular conclusion. They are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge. Indeed, to impose such a requirement on trial judges would have a serious negative impact by slowing “the system of justice immeasurably. The jurisprudence does not support such an obligation. For these reasons, I would dismiss the appeal.

R. v. Catellier [2011] Manitoba MBQB 77 April 11/11 Bryk, J.

Facts: Father pleads not guilty to common assault for grabbing his 21-month-old son – who was having a tantrum at the dinner table – by the arm and carrying him a few feet before depositing him on the second step of a staircase. When the tantrum continued, he picked the child up and carried him to his room on the second floor where he left him alone. His wife, who was at the table, was called as witness.

Decision: Not guilty

Reasons: The Crown argued that s. 43 was unavailable as the child was under age 2 and relied on the Canadian Foundation case. Judge disagreed; saying that a careful reading of the case clearly discloses that while S. 43 does not apply to children under 2 or teenagers, this relates only to incidents where corporal punishment had been administered. This was not cp and the father’s conduct was not motivated by anger or frustration – nor did it amount to an outburst of violence. I accept father’s evidence that his purpose was to address the child’s behaviour and place him in a “time out” situation. 

R. c. P. G. [2011] Quebec No. 450-01-064188-100 Jan 18/11 Conrad Chapdelaine, J.C.Q.

Facts: Father pleads not guilty to common assault for spanking his 9-year-old son 3 times on the bare bottom because son had misbehaved at school. Bruises on the boy were visible 3 days later and mother reported them to police.

Decision: Guilty

Reasons: Force to educate a child is justified if it doesn’t present a reasonable risk of harm and is transitory and insignificant. There was no urgent need to use force to prevent a dangerous situation and father admits there were other ways of discipline he could have used.

R. v. Zachow [2010] ABPC 397 Dec 9/10 M.G. Stevens-Guille, Prov. Ct. J.

Facts: Parents plead not guilty to assault on daughter. The father, Larry Zachow, held the legs of his 14-year-old daughter over her head to expose her bottom and at his direction the mother, Aida Calagui-Zachow, fetched a belt and strapped daughter across the buttocks at least three times. The day before this, mother had asked daughter if she had been sexually active with boyfriend. Daughter said she had and was told not to see him again. The next day daughter was confronted by parents and readily admitted she had been with her boyfriend and friends. During the confrontation, daughter grabbed a kitchen knife, which was either dropped or taken away. Father grabbed daughter by hair to take her to her room and instructed wife to bring a belt with which she was struck. Both accused were remanded in custody for 3 days and then granted bail. A trial date was set but they did not attend. Warrants were issued and the lawyer who had appeared for them withdrew. Counsel was appointed for daughter. See News/Articles June 4/10 Sun report for other info.

Decision: Both guilty of common assault; the belt being considered an aggravating factor in sentencing.

Reasons: Pre-sentence reports are negative, particularly with regard to the father and showed no remorse by either accused. They considered their actions appropriate, arguing that parents cannot use hands for discipline because hands are for caring, and only objects, such as a belt, can be used for physical discipline. This is in complete contradiction to the court’s conclusion in the Canadian Foundation case, which also held that for psychological reasons, corporal discipline of a teenager cannot be corrective. The accused and their community believe the law on disciplining children does not apply to them because they answer to a higher authority than the courts. Religious belief cannot be used to expand the constitutionally accepted scope of s. 43. R. v. Poulin cited.

Sentence: Both accused spent 3 days in jail and have acquired a criminal record.  That in my view is significant punishment. I sentence both to time already spent in jail, which I put at the equivalent of one week on a two for one basis.  Each will pay a surcharge of $100.

Absolute and conditional discharges have been the principal focus in sentencing in these matters. While I have discretion to grant discharge, it is not in the public interest for me to do so in this case. General deterrence, in my view, here requires the registering of a conviction. I have considered incarceration to express the public denunciation of what the parents here did and especially to send a message to other parents as to what is and what is not legally acceptable in the discipline of children. Deterrence must involve a punishment of significance to the offender and the public if it is to be effective. I do not believe that I need to deter these offenders, but a strong message to parents may be useful. The father held his daughter in a degrading manner. There was an abuse of trust that is aggravating under s. 718.2 (iii) and abuse of a person under 18 years of age under s. 718.2 (ii.1) of the Criminal Code.

R. v. Jonkman [2010] Alberta No. 898 July 15/10 D.R. Valgardson Prov. Ct. J.

Facts: Substitute schoolteacher with 30 years experience is charged with Sept/08 assault of a grade-6 boy at an elementary school in Edmonton. There were four students in the classroom who were calling out and being rude. The complainant (who was one of the four) refused to work and was wandering about and wouldn’t listen.

The boy testified that he called out to the accused to obtain help with his schoolwork. In so doing he mispronounced the name of the accused and the accused then stated, ‘You disgraced my name. Don’t ever talk to me like that again’ and came over to the boy, grabbed his arm above the elbow, twisted it, and pulled him out of his chair. Boy testified that accused twisted his arm again and dragged him one or two feet. He stated he said ‘ow’ and was crying, hurt and embarrassed in front of the class. He tripped on the chair leg and fell to the ground. At this point the accused told him to get back into his seat. The accused testified that he considered the boy’s remarks a personal insult and derisive of his surname. He did not ask the boy to leave the classroom before grabbing him by the arm and pulling him from his desk.

Decision: Guilty as charged.

Reasons: The Supreme Court in the Canadian Fdn case stated that s. 43 cannot exculpate outbursts of violence against a child motivated by anger or animated by frustration. The purpose of the force must always be the education or discipline of the child. In addition, the child must be capable of benefiting from the correction. With respect to what is reasonable under the circumstances, the Court noted that ‘generally s. 43 exempts from criminal sanction only minor corrective force of a transitory or a trifling nature.’ The Court emphasized that the test to determine reasonableness is objective. The accused reacted angrily and did not act in a controlled fashion for the purpose of correction. This was not a minor incidental touching that could be described as a mere technical assault. The teacher’s actions cannot be characterized in a way that brings them within the ambit of the legal principle de minimus non curat lex (the law does not concern itself with trifles). As a consequence, the accused is guilty as charged.

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 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.

The issue here is whether the Crown has proved beyond a reasonable doubt that the defendant acted in a manner that exceeded the scope of s. 43. It is not clear that the witnesses had actually seen these incidents, there appeared to be a personality conflict between the accused and some of her colleagues, and a difference of opinion on styles or methods of teaching between them and the defendant. This difference affected each witness’s perception of certain actions and I am not satisfied that the defendant used any force that was not corrective or beyond that which was reasonable in the circumstances and within the scope of s. 43 as explained by the Supreme Court.

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.

Comment: Numerous decisions are quoted and discussed in this lengthy and scholarly judgment, but the finding that it is reasonable to stuff and tape a sock in the mouth of a disturbed 6-year-old is questionable, even when the child is “freaking out” and posing a danger to himself and others. Legal approval of actions like this not only demean the child but also encourage persons in authority to resort to such practices rather than anticipating and planning what to do in such foreseeable situations; particularly when dealing with disturbed children. Holding that the common law provides a defence quite apart from s. 43, is noteworthy in view of a bill to repeal s. 43 currently in the senate that makes no reference to ending this common law defence.

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.

Reasons: Mother’s actions did not cause any marks. She was in no way responsible for the child’s ill humour and was trying to calm her by bending down to reason with her. There was no excessive force in turning the child. Mother acted within the limits of s. 43.

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’.

The difficulty of applying these criteria to the use of reasonable force for restraint or control or for corporal punishment poses real danger for children; especially those from 2 to 12 years of age. Such force is still allowed by s. 43 as interpreted by the Supreme Court. These children are at a particularly vulnerable age and need clear protection from assault: not protection qualified by criteria that even judges find difficult to apply.

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. M.T. 2007 SKPC 53 Sask. Ap 18/07 J. Benison, P.C.J.  

Facts: Father pled not guilty to a charge of assault on son. Parents separated but father had visiting rights. A verbal altercation occurred culminating in the accused slapping his son on the cheek. Son was behaving obnoxiously, was using foul and abusive language, was disobedient and was out of control. His conduct clearly required correction. Father correctly described himself to RCMP as snapping and getting mad. Court found this to mean that father lost his temper. 

Decision: Guilty

Reasons: The slap on the cheek does not fall within the category of “force by way of correction”, since it was administered in anger or frustration.  Even if I were wrong in this conclusion, it would be my finding that the force exceeded what was reasonable under the circumstances. The Canadian Foundation case makes it clear that discipline including blows or slaps to the head is unreasonable. Thus, a slap to the face could only be considered reasonable if the slap were slight and/or trifling. The evidence in this case satisfies me that the slap, though not administered with all his force, was significant. In considering the phrase “reasonable under the circumstances”, the Canadian Fdn case found that the S. 43 exception applies only to “minor corrective force of a transitory or trifling nature” or “the mildest forms of assault”. It specifically found that discipline by the use of objects or blows or slaps to the head is unreasonable. A further important point is that “the gravity of the precipitating event is not relevant”.

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

Reasons: The children’s testimony varied and in some cases was contradictory, not corroborated and of low probative value. Teacher had ‘vast’ experience and a ‘challenging work environment’. He frequently became frustrated and admitted touching children but not beyond what was ‘absolutely necessary’. S. 43 allows touching. The force used was ‘beyond the absolute minimum required’ but in all cases, the children were not hurt but only ‘pushed’. It is not necessary to determine in this case whether de minimis can be raised as a defence.

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.

Comment: Because this judgment was issued shortly before the Jan 30/04 Supreme Court decision, the judge does not refer to it. However, he does refer to the Ontario Court of Appeal decision in the same case. Unlike the Supreme Court, the Court of Appeal simply upheld s. 43 with no specific reservations respecting teachers, hitting teenagers or hitting on the face. If R. v. Storey had come after the Supreme Court decision, the teacher could have been found guilty on any of these grounds. He could then have been given an absolute or conditional discharge to avoid a criminal conviction being entered against a “well-respected” member of the community. It seems that “tapping on the cheek” and “making contact in the face area” are the judge’s euphemisms for slapping.

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