Corrective Force: Difference between revisions
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[[Fr:Force_corrective]] | |||
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{{LevelZero}}{{HeaderDefences}} | {{LevelZero}}{{HeaderDefences}} | ||
==General Principles== | ==General Principles== | ||
Section 43 provides a [[Defences|defence]] to a charge against a teacher, parent, or similar relating to the application of force. | |||
{{quotation2| | {{quotation2| | ||
; Correction of child by force | ; Correction of child by force | ||
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<br> | <br> | ||
R.S., c. C-34, s. 43. | R.S., c. C-34, s. 43. | ||
| | |{{CCCSec2|43}} | ||
|{{NoteUp|43}} | |{{NoteUp|43}} | ||
}} | }} | ||
; Components of Section 43 | |||
This section sets out three requirements<ref> | This section sets out three requirements<ref> | ||
{{ | {{CanLIIRP|Gervin|fq3sq|2012 MBQB 44 (CanLII)|274 Man R (2d) 240}}{{perMBQB|Midwinter J}}{{atL|fq3sq|5}}<br> | ||
see also {{ | see also {{CanLIIRP|Sinclair|1vt2p|2008 MBCA 15 (CanLII)|229 CCC (3d) 485}}{{perMBCA|Scott CJ}}<br> | ||
</ref> | </ref> | ||
#The force must have been intended for corrective purposes. | #The force must have been intended for corrective purposes. | ||
| Line 18: | Line 22: | ||
#The force used must have been objectively reasonable under the circumstances. | #The force used must have been objectively reasonable under the circumstances. | ||
This defence is available to teachers, parents, and persons acting as parents. This last category includes anyone who has assumed "all the obligations of parenthood" | Section 43 is to be "strictly construed."<ref> | ||
{{CanLIIRPC|Ogg-Moss v The Queen|1txjt|1984 CanLII 77 (SCC)| | {{ibid1|Ogg-Moss}}</ref> | ||
; Applicable Persons | |||
This defence is available to teachers, parents, and persons acting as parents. This last category includes anyone who has assumed "all the obligations of parenthood."<ref> | |||
{{CanLIIRPC|Ogg-Moss v The Queen|1txjt|1984 CanLII 77 (SCC)|[1984] 2 SCR 173}}{{perSCC|Dickson J}} at 190 | |||
</ref> | </ref> | ||
; "pupil or child" | |||
"Child" refers to a person under the age of majority.<ref> | |||
"Child" refers to a | |||
{{ibid1|Ogg-Moss}}</ref> | {{ibid1|Ogg-Moss}}</ref> | ||
A mentally disabled adult cannot be considered a child within the meaning of the section.<ref> | A mentally disabled adult cannot be considered a child within the meaning of the section.<ref> | ||
{{ | {{CanLIIRP|Nixon|1txjw|1984 CanLII 78 (SCC)|[1984] 2 SCR 197}}{{perSCC|Dickson J}}<br> | ||
{{ibid1|Ogg-Moss}}</ref> | {{ibid1|Ogg-Moss}}</ref> | ||
| Line 34: | Line 40: | ||
{{ibid1|Ogg-Moss}}</ref> | {{ibid1|Ogg-Moss}}</ref> | ||
; "schoolteacher" | |||
A "school teacher" refers to a person who gives formal instruction in a children's school<ref> | A "school teacher" refers to a person who gives formal instruction in a children's school<ref> | ||
{{ibid1|Ogg-Moss}}</ref> | {{ibid1|Ogg-Moss}}</ref> | ||
The term has been interpreted to include the principal.<ref> | |||
{{CanLIIR|McGrath|jd2q0|2021 CanLII 7914 (NL PC)}}{{atL|jd2q0|31}} | |||
</ref> | |||
The first requirement implies that the actions of the child called for corrective action. | The first requirement implies that the actions of the child called for corrective action. | ||
| Line 43: | Line 54: | ||
</ref> | </ref> | ||
; Factors | |||
The factors to be considered include:<ref> | The factors to be considered include:<ref> | ||
{{ | {{CanLIIRP|BS|1w3b1|2008 CanLII 10389 (ON SC)|58 CR (6th) 126}}{{perONSC|Robertson J}}{{atL|1w3b1|8}}<br> | ||
</ref> | </ref> | ||
#age and character of the child, | #age and character of the child, | ||
| Line 52: | Line 64: | ||
The "corrective" application for force means that there must be a corrective or educative purpose.<ref> | The "corrective" application for force means that there must be a corrective or educative purpose.<ref> | ||
{{CanLIIRPC|Canadian Foundation for Children, Youth and the Law v Canada (Attorney General)|1g990|2004 SCC 4 (CanLII)| | {{CanLIIRPC|Canadian Foundation for Children, Youth and the Law v Canada (Attorney General)|1g990|2004 SCC 4 (CanLII)|[2004] 1 SCR 76}}{{perSCC-H|McLachlin CJ}} | ||
</ref> | </ref> | ||
It must also "restrain or control" and not be for simply expressing disapproval.<ref> | It must also "restrain or control" and not be for simply expressing disapproval.<ref> | ||
| Line 60: | Line 72: | ||
{{supra1|BS}}{{atL|1w3b1|9}}</ref> | {{supra1|BS}}{{atL|1w3b1|9}}</ref> | ||
Anger is simply a factor to consider by the court. The determining issue is not whether the parents are "upset, distraught, frustrated, annoyed or angry" but rather whether the accused was able to "control" his anger or emotions.<ref> | Anger is simply a factor to consider by the court. The determining issue is not whether the parents are "upset, distraught, frustrated, annoyed or angry" but rather whether the accused was able to "control" his anger or emotions.<ref> | ||
e.g. {{CanLIIRP|TI|1j211|2003 CanLII 49914 (ON CJ)| | e.g. {{CanLIIRP|TI|1j211|2003 CanLII 49914 (ON CJ)|[2003] OJ No 5940 (Ont. C.J.)}}{{perONCJ|Feldman J}} citing {{CanLIIRP|Peterson|1wc3c|1995 CanLII 7395 (ON SC)|[1995] OJ No 1266 (Ont. Ct. Prov. Div)}}{{perONSC|Menzies J}}{{atp|15}} (“it is unrealistic to assume that parents discipline their children, whatever the nature of the infraction, in a state of detached calm. Anger is part and parcel of correction of the child. What is relevant is not whether the parent is upset, distraught, frustrated, annoyed or angry, but whether the parent is in control of his or her anger or emotions”) | ||
</ref> | </ref> | ||
| Line 67: | Line 79: | ||
Reasonableness of the force used can include both the objective and subjective considerations when examining the nature of the activity being corrected, age and character of child, the likely effect of the punishment, degree of gravity of punishment, circumstances of the punishment, and injuries. <ref> | Reasonableness of the force used can include both the objective and subjective considerations when examining the nature of the activity being corrected, age and character of child, the likely effect of the punishment, degree of gravity of punishment, circumstances of the punishment, and injuries. <ref> | ||
{{ | {{CanLIIRP|Dupperon|1pfn2|1984 CanLII 61 (SK CA)|16 CCC (3d) 453}}{{TheCourtSKCA}} | ||
</ref> | </ref> | ||
| Line 73: | Line 85: | ||
{{ibid1|Dupperon}}</ref> | {{ibid1|Dupperon}}</ref> | ||
The punishment does not have to come immediately after the act to be corrected as long as it is at the "next reasonable opportunity" | The punishment does not have to come immediately after the act to be corrected as long as it is at the "next reasonable opportunity."<ref> | ||
{{CanLIIRP|Haberstock|htz9t|1970 CanLII 1046 (SK CA)| (1971) 1 CCC (2d) 433}}{{perSKCA|Culliton | {{CanLIIRP|Haberstock|htz9t|1970 CanLII 1046 (SK CA)|(1971) 1 CCC (2d) 433}}{{perSKCA|Culliton CJ}} | ||
</ref> | </ref> | ||
Where a judge finds the method of correction to be used "unacceptable" then s. 43 cannot apply.<ref> | Where a judge finds the method of correction to be used "unacceptable" then s. 43 cannot apply.<ref> | ||
{{ | {{CanLIIRP|BT|1p6hv|1985 ABCA 51 (CanLII)|19 CCC (3d) 156}}{{perABCA|Laycraft CJ}} | ||
</ref> | </ref> | ||
| Line 97: | Line 105: | ||
An adult who carried a child to a step by his arm was found to be acting lawfully under s. 42.<ref> | An adult who carried a child to a step by his arm was found to be acting lawfully under s. 42.<ref> | ||
{{ | {{CanLIIRP|Catellier|fl5qp|2011 MBQB 77 (CanLII)|263 Man R (2d) 304}}{{perMBQB|Bryk J}}<br> | ||
</ref> | |||
'''Constitutionality''' | |||
Section 43 was found to be constitutional.<ref> | |||
{{CanLIIRPC|Canadian Foundation for Children, Youth and the Law v Canada (Attorney General)|1g990|2004 SCC 4 (CanLII)|[2004] 1 SCR 76}}{{perSCC-H|McLachlin CJ}} | |||
</ref> | </ref> | ||
| Line 104: | Line 118: | ||
==Person Standing in Place of a Parent== | ==Person Standing in Place of a Parent== | ||
A counsellor who is tasked with supervising a mentally disabled adult does not stand in the place of a parent.<ref> | A counsellor who is tasked with supervising a mentally disabled adult does not stand in the place of a parent.<ref> | ||
{{ | {{CanLIIRP|Nixon|1txjw|1984 CanLII 78 (SCC)|[1984] 2 SCR 197}}{{perSCC|Dickson J}} | ||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
Latest revision as of 07:10, 23 July 2024
| This page was last substantively updated or reviewed June 2021. (Rev. # 95872) |
- < Criminal Law
- < Defences
General Principles
Section 43 provides a defence to a charge against a teacher, parent, or similar relating to the application of force.
- Correction of child by force
43. Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.
R.S., c. C-34, s. 43.
- Components of Section 43
This section sets out three requirements[1]
- The force must have been intended for corrective purposes.
- The child must have been capable of benefiting from the correction.
- The force used must have been objectively reasonable under the circumstances.
Section 43 is to be "strictly construed."[2]
- Applicable Persons
This defence is available to teachers, parents, and persons acting as parents. This last category includes anyone who has assumed "all the obligations of parenthood."[3]
- "pupil or child"
"Child" refers to a person under the age of majority.[4] A mentally disabled adult cannot be considered a child within the meaning of the section.[5]
A "pupil" refers to a child taking instruction.[6]
- "schoolteacher"
A "school teacher" refers to a person who gives formal instruction in a children's school[7]
The term has been interpreted to include the principal.[8]
The first requirement implies that the actions of the child called for corrective action.
The meaning of capability of "benefiting from the correction" is a broad term and will take into account the accused's knowledge of the ability to learn and remember from the act.[9]
- Factors
The factors to be considered include:[10]
- age and character of the child,
- nature of the issue calling for a correction,
- circumstances and gravity of the correction, any injuries, and
- the likely effect of the punishment on the child.
The "corrective" application for force means that there must be a corrective or educative purpose.[11] It must also "restrain or control" and not be for simply expressing disapproval.[12]
Corrective intent and anger are not mutually exclusive.[13] Anger is simply a factor to consider by the court. The determining issue is not whether the parents are "upset, distraught, frustrated, annoyed or angry" but rather whether the accused was able to "control" his anger or emotions.[14]
Where the child must benefit from the correction, it would not be reasonable to correct children under the age of 2 or those suffering from a learning disability.[15]
Reasonableness of the force used can include both the objective and subjective considerations when examining the nature of the activity being corrected, age and character of child, the likely effect of the punishment, degree of gravity of punishment, circumstances of the punishment, and injuries. [16]
Any punishment that endangers the life, limbs, health, or risks disfigurement will render the act unreasonable.[17]
The punishment does not have to come immediately after the act to be corrected as long as it is at the "next reasonable opportunity."[18]
Where a judge finds the method of correction to be used "unacceptable" then s. 43 cannot apply.[19]
At no time can the force be "degrading, inhuman, or harmful". The use of objects or the infliction of blows to the head are unreasonable.[20]
A teacher cannot use corporal punishment.[21] But they may apply reasonable force to remove a child from a classroom or secure compliance with instructions.[22]
An adult who carried a child to a step by his arm was found to be acting lawfully under s. 42.[23]
Constitutionality
Section 43 was found to be constitutional.[24]
- ↑
R v Gervin, 2012 MBQB 44 (CanLII), 274 Man R (2d) 240, per Midwinter J, at para 5
see also R v Sinclair, 2008 MBCA 15 (CanLII), 229 CCC (3d) 485, per Scott CJ
- ↑ Ogg-Moss, ibid.
- ↑ Ogg-Moss v The Queen, 1984 CanLII 77 (SCC), [1984] 2 SCR 173, per Dickson J at 190
- ↑ Ogg-Moss, ibid.
- ↑
R v Nixon, 1984 CanLII 78 (SCC), [1984] 2 SCR 197, per Dickson J
Ogg-Moss, ibid. - ↑ Ogg-Moss, ibid.
- ↑ Ogg-Moss, ibid.
- ↑ R v McGrath, 2021 CanLII 7914 (NL PC), at para 31
- ↑ e.g. Ogg-Moss, ibid.
- ↑
R v BS, 2008 CanLII 10389 (ON SC), 58 CR (6th) 126, per Robertson J, at para 8
- ↑ Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4 (CanLII), [2004] 1 SCR 76, per McLachlin CJ
- ↑ Canadian Foundation for Children, Youth and the Law, ibid.
- ↑ BS, supra, at para 9
- ↑ e.g. R v TI, 2003 CanLII 49914 (ON CJ), [2003] OJ No 5940 (Ont. C.J.), per Feldman J citing R v Peterson, 1995 CanLII 7395 (ON SC), [1995] OJ No 1266 (Ont. Ct. Prov. Div), per Menzies J, at p. 15 (“it is unrealistic to assume that parents discipline their children, whatever the nature of the infraction, in a state of detached calm. Anger is part and parcel of correction of the child. What is relevant is not whether the parent is upset, distraught, frustrated, annoyed or angry, but whether the parent is in control of his or her anger or emotions”)
- ↑ Canadian Foundation for Children, Youth and the Law, supra
- ↑ R v Dupperon, 1984 CanLII 61 (SK CA), 16 CCC (3d) 453, per curiam
- ↑ Dupperon, ibid.
- ↑ R v Haberstock, 1970 CanLII 1046 (SK CA), (1971) 1 CCC (2d) 433, per Culliton CJ
- ↑ R v BT, 1985 ABCA 51 (CanLII), 19 CCC (3d) 156, per Laycraft CJ
- ↑
Canadian Foundation for Children, Youth and the Law, supra
- ↑
Canadian Foundation for Children, Youth and the Law, supra
- ↑
Canadian Foundation for Children, Youth and the Law, supra
- ↑
R v Catellier, 2011 MBQB 77 (CanLII), 263 Man R (2d) 304, per Bryk J
- ↑ Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4 (CanLII), [2004] 1 SCR 76, per McLachlin CJ
Person Standing in Place of a Parent
A counsellor who is tasked with supervising a mentally disabled adult does not stand in the place of a parent.[1]
- ↑ R v Nixon, 1984 CanLII 78 (SCC), [1984] 2 SCR 197, per Dickson J