Corrective Force: Difference between revisions

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{{LevelZero}}{{HeaderDefences}}
{{LevelZero}}{{HeaderDefences}}
==General Principles==
==General Principles==
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{{Quotation|
{{Quotation|
'''Correction of child by force'''<br>
'''Correction of child by force'''<br>
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|[http://canlii.ca/t/7vf2#sec43 CCC]}}  
|[http://canlii.ca/t/7vf2#sec43 CCC]}}  


This section sets out three requirements<ref>''R v Gervin'', [http://canlii.ca/t/fq3sq 2012 MBQB 44] (CanLII){{perMBQB|Midwinter J}}{{at|5}}<br>
This section sets out three requirements<ref>
see also R v Sinclair [http://canlii.ca/t/1vt2p 2008 MBCA 15] (CanLII){{perMBCA|Scott CJ}}<br>
''R v Gervin'', [http://canlii.ca/t/fq3sq 2012 MBQB 44] (CanLII){{perMBQB|Midwinter J}}{{at|5}}<br>
see also ''R v Sinclair'', [http://canlii.ca/t/1vt2p 2008 MBCA 15] (CanLII){{perMBCA|Scott CJ}}<br>
</ref>
</ref>
#The force must have been intended for corrective purposes.  
#The force must have been intended for corrective purposes.  
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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>
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>
Ogg-Moss v The Queen, [http://canlii.ca/t/1txjt 1984 CanLII 77] (SCC), [1984] 2 SCR 173{{perSCC|Dickson J}} at 190
''Ogg-Moss v The Queen'', [http://canlii.ca/t/1txjt 1984 CanLII 77] (SCC), [1984] 2 SCR 173{{perSCC|Dickson J}} at 190
</ref>
</ref>


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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>
''R v Nixon'', [http://canlii.ca/t/1txjw 1984 CanLII 78] (SCC), [1984] 2 SCR 197{{perSCC|Dickson J}}<br>
''R v Nixon'', [http://canlii.ca/t/1txjw 1984 CanLII 78] (SCC), [1984] 2 SCR 197{{perSCC|Dickson J}}<br>
Ogg-Moss{{ibid}}</ref>
{{ibid1|Ogg-Moss}}</ref>


A "pupil" refers to a child taking instruction.<ref>
A "pupil" refers to a child taking instruction.<ref>
Ogg-Moss{{ibid}}</ref>
{{ibid1|Ogg-Moss}}</ref>


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>
Ogg-Moss{{ibid}}</ref>
{{ibid1|Ogg-Moss}}</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.


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.<ref>
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.<ref>
e.g. Ogg-Moss{{ibid}}
e.g. {{ibid1|Ogg-Moss}}
</ref>
</ref>


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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>
Canadian Foundation for Children, Youth and the Law</ref> It must also "restrain or control" and not be for simply expressing disapproval.<ref>
Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), [http://canlii.ca/t/1g990 2004 SCC 4] (CanLII), [2004] 1 SCR 76{{perSCC|McLachlin CJ}}
Canadian Foundation for Children, Youth and the Law</ref>
</ref>  
It must also "restrain or control" and not be for simply expressing disapproval.<ref>
{{ibid1|Canadian Foundation for Children, Youth and the Law}}</ref>


Corrective intent and anger are not mutually exclusive.<ref>
Corrective intent and anger are not mutually exclusive.<ref>
BS{{supra}}{{at|9}}</ref>  
{{supra1|BS}}{{at|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. ''R v TI'', [http://canlii.ca/t/1j211 2003 CanLII 49914] (ON CJ), [2003] OJ No 5940 (Ont. C.J.){{perONCJ|Feldman J}} citing ''R v Peterson'', [http://canlii.ca/t/1wc3c 1995 CanLII 7395] (ON SC), [1995] OJ No 1266 ( Ont. Ct. Prov. Div){{perONSC|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”)
e.g. ''R v TI'', [http://canlii.ca/t/1j211 2003 CanLII 49914] (ON CJ), [2003] OJ No 5940 (Ont. C.J.){{perONCJ|Feldman J}} citing ''R v Peterson'', [http://canlii.ca/t/1wc3c 1995 CanLII 7395] (ON SC), [1995] OJ No 1266 (Ont. Ct. Prov. Div){{perONSC|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”)
</ref>
</ref>


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.<ref>
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.<ref>
Canadian Foundation for Children, Youth and the {{supra1|Law}}</ref>
{{supra1|Canadian Foundation for Children, Youth and the Law}}</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>
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>
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Any punishment that endangers the life, limbs, health, or risks disfigurement will render the act unreasonable.<ref>
Any punishment that endangers the life, limbs, health, or risks disfigurement will render the act unreasonable.<ref>
Dupperon{{ibid}}</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".<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".<ref>
R v Haberstock (1971) 1 CCC (2d) 433, [http://canlii.ca/t/htz9t 1970 CanLII 1046] (SK CA){{perSKCA|Culliton CJ}}
''R v Haberstock'' (1971) 1 CCC (2d) 433, [http://canlii.ca/t/htz9t 1970 CanLII 1046] (SK CA){{perSKCA|Culliton CJ}}
</ref>
</ref>


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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.<ref>
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.<ref>
Canadian Foundation for Children, Youth and the Law
{{supra1|Canadian Foundation for Children, Youth and the Law}}<br>
</ref>
</ref>


A teacher cannot use corporal punishment.<ref>
A teacher cannot use corporal punishment.<ref>
Canadian Foundation for Children, Youth and the Law
{{supra1|Canadian Foundation for Children, Youth and the Law}}<br>
</ref> But they may apply reasonable force to remove a child from a classroom or secure compliance with instructions.<ref>
</ref>  
Canadian Foundation for Children, Youth and the Law
But they may apply reasonable force to remove a child from a classroom or secure compliance with instructions.<ref>
{{supra1|Canadian Foundation for Children, Youth and the Law}}<br>
</ref>
</ref>


Revision as of 20:18, 13 January 2019

General Principles

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.


– CCC

This section sets out three requirements[1]

  1. The force must have been intended for corrective purposes.
  2. The child must have been capable of benefiting from the correction.
  3. 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".[2]

Section 43 is to be "strictly construed".[3]

"Child" refers to a preson 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]

A "school teacher" refers to a person who gives formal instruction in a children's school[7]

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.[8]

The factors to be considered include:[9]

  1. age and character of the child,
  2. nature of the issue calling for a correction,
  3. circumstances and gravity of the correction, any injuries, and
  4. the likely effect of the punishment on the child.

The "corrective" application for force means that there must be a corrective or educative purpose.[10] It must also "restrain or control" and not be for simply expressing disapproval.[11]

Corrective intent and anger are not mutually exclusive.[12] 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.[13]

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.[14]

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. [15]

Any punishment that endangers the life, limbs, health, or risks disfigurement will render the act unreasonable.[16]

The punishment does not have to come immediately after the act to be corrected as long as it is at the "next reasonable opportunity".[17]

Section 43 was found to be constitutional.[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]

  1. ↑ R v Gervin, 2012 MBQB 44 (CanLII), per Midwinter J, at para 5
    see also R v Sinclair, 2008 MBCA 15 (CanLII), per Scott CJ
  2. ↑ Ogg-Moss v The Queen, 1984 CanLII 77 (SCC), [1984] 2 SCR 173, per Dickson J at 190
  3. ↑ Ogg-Moss, ibid.
  4. ↑ Ogg-Moss, ibid.
  5. ↑ R v Nixon, 1984 CanLII 78 (SCC), [1984] 2 SCR 197, per Dickson J
    Ogg-Moss, ibid.
  6. ↑ Ogg-Moss, ibid.
  7. ↑ Ogg-Moss, ibid.
  8. ↑ e.g. Ogg-Moss, ibid.
  9. ↑ R v BS, 2008 CanLII 10389 (ON SC), per Robertson J, at para 8
  10. ↑ Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4 (CanLII), [2004] 1 SCR 76, per McLachlin CJ
  11. ↑ Canadian Foundation for Children, Youth and the Law, ibid.
  12. ↑ BS, supra, at para 9
  13. ↑ 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”)
  14. ↑ Canadian Foundation for Children, Youth and the Law, supra
  15. ↑ R v Dupperon, 1984 CanLII 61 (SK CA), per curiam
  16. ↑ Dupperon, ibid.
  17. ↑ R v Haberstock (1971) 1 CCC (2d) 433, 1970 CanLII 1046 (SK CA), per Culliton CJ
  18. ↑ Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4 (CanLII), [2004] 1 SCR 76, per McLachlin CJ
  19. ↑ R v BT, 1985 ABCA 51 (CanLII), per Laycraft CJ
  20. ↑ Canadian Foundation for Children, Youth and the Law, supra
  21. ↑ Canadian Foundation for Children, Youth and the Law, supra
  22. ↑ Canadian Foundation for Children, Youth and the Law, supra
  23. ↑ R v Catellier, 2011 MBQB 77 (CanLII), per Bryk J

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]

  1. ↑ R v Nixon, 1984 CanLII 78 (SCC), [1984] 2 SCR 197, per Dickson J
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