Le carnet de droit pénal

Force corrective

Version datée du 21 juin 2024 à 23:36 par AdminF (discussion | contributions) (Remplacement de texte : « ==General Principles== » par « ==Principes généraux== »)
Ang
Cette page a été mise à jour ou révisée de manière substantielle pour la dernière fois June 2021. (Rev. # 2950)
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Principes généraux

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.

– CCC (CanLII), (Jus.)

Note: 43

Components of Section 43

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.

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]

  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.[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]

  1. ↑ R c Gervin, 2012 MBQB 44 (CanLII), 274 Man R (2d) 240, par Midwinter J, au para 5
    see also R c Sinclair, 2008 MBCA 15 (CanLII), 229 CCC (3d) 485, par Scott CJ
  2. ↑ , ibid.
  3. ↑ Ogg-Moss v The Queen, 1984 CanLII 77 (SCC), [1984] 2 SCR 173, par Dickson J at 190
  4. ↑ , ibid.
  5. ↑ R c Nixon, 1984 CanLII 78 (SCC), [1984] 2 SCR 197, par Dickson J
    , ibid.
  6. ↑ , ibid.
  7. ↑ , ibid.
  8. ↑ R c McGrath, 2021 CanLII 7914 (NL PC), au para 31
  9. ↑ e.g. , ibid.
  10. ↑ R c BS, 2008 CanLII 10389 (ON SC), 58 CR (6th) 126, par Robertson J, au para 8
  11. ↑ Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4 (CanLII), [2004] 1 SCR 76, par McLachlin CJ
  12. ↑ , ibid.
  13. ↑ BS, supra, au para 9
  14. ↑ e.g. R c TI, 2003 CanLII 49914 (ON CJ), [2003] OJ No 5940 (Ont. C.J.), par Feldman J citing R c Peterson, 1995 CanLII 7395 (ON SC), [1995] OJ No 1266 (Ont. Ct. Prov. Div), par Menzies J, au 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”)
  15. ↑ Canadian Foundation for Children, Youth and the Law, supra
  16. ↑ R c Dupperon, 1984 CanLII 61 (SK CA), 16 CCC (3d) 453, par curiam
  17. ↑ , ibid.
  18. ↑ R c Haberstock, 1970 CanLII 1046 (SK CA), (1971) 1 CCC (2d) 433, par Culliton CJ
  19. ↑ R c BT, 1985 ABCA 51 (CanLII), 19 CCC (3d) 156, par 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 c Catellier, 2011 MBQB 77 (CanLII), 263 Man R (2d) 304, par Bryk J
  24. ↑ Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4 (CanLII), [2004] 1 SCR 76, par 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]

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