In the context of section 43, teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but force cannot be used merely as corporal punishment.
Section 8(3) of the Criminal Code allows for the common law defence of necessity. This defence recognizes that there are emergency situations where the law does not hold people accountable if they act in self-defence or to save others.
In effect, the defence of necessity is an excuse, not a justification for violating the law.
Discussion
If the reasoning of Justice Arbour in her Foundation case dissent was accepted, Simon Just might have a valid defence within the meaning of section 8(3) of the Criminal Code. He acted to protect children from seriously wounding or possibly killing each other. They were slashing at each other with knives. Both were bleeding. They were known in the school as “hot heads.” Indeed, the fight took place in the school where Just was a teacher. He saw the fight and acted instantly.
Was there a reasonable alternative to the assault, to the use of karate which caused injury? If such an alternative existed, then, under the defence of necessity, he was obligated to use it. Just seemed aware that the law did not approve of the use of force. His alternative was to yell at the boys to stop fighting. However, Just felt that he could not take the chance that the boys would not stop fighting on his command. He believed he had to act quickly to end the fight.
Once Just put before the trial court sufficient evidence to raise the issue of necessity, then the burden was on the Crown to show that the defence was invalid beyond a reasonable doubt.
More on Justice Arbour’s Reasoning
The Court majority in the Foundation case did not discuss the necessity defence. The issue before the Court, after all, was the Charter challenge to section 43 of the Criminal Code. Justice Arbour took a broader view. She did so in the context of her conclusion that the Charter required that section 43 be set aside.
The defence of necessity, she emphasized, is a long-standing common law rule incorporated into section 8(3) of the Criminal Code and recognized by the Court in Perka v. The Queen, [1984] 2 Supreme Court of Canada Reports 232. Justice Arbour wrote:
I see no reason why, if the above requirements are met, the defence of necessity would not be available to parents and teachers should they intervene to protect children from themselves or others. Other authors have also proposed the use of necessity for parents and teachers should the section 43 defence be abolished. (See, Anne McGillivray, “He’ll Learn It on His Body: Disciplining Childhood in Canadian Law,” International Journal of Children’s Rights 193, at p. 240.)
In The Queen v. Morris (1981), 61 Canadian Criminal Cases (2d series) 163 (Alberta Queen’s Bench), the defence of necessity succeeded in absolving a husband on a charge of common assault of his wife. The husband had restrained his inebriated wife when she tried to jump out of their truck. The husband honestly and reasonably believed that the intervention was necessary. The judge noted, at p. 166, that: “To have allowed his wife to get out of the truck to walk on a dark road in an intoxicated condition would have shown wanton or reckless disregard for her life or safety and could have constituted criminal negligence on his part….”
If a parent were to forcibly restrain a child in order to ensure that the child complied with a doctor’s instructions to receive a needle, section 43 would be of no assistance to excuse the use of restraint, but the parent would, in my view, have the common law defence of necessity available to him or her should a charge of assault be pursued. The common law defence of necessity has always been available to parents in appropriate circumstances and would continue to be available if the section 43 defence were struck down.
Common sense under a test of reasonableness seems to be the direction taken by Justice Arbour. For example, parents will be seen as justified in restraining an unruly child who insists on crossing the street on a red light. The parent is acting largely for the purpose of the safety of the child.
Still Another Common Law Defence:
De Minimis?
Police and prosecutors, in effect, screen all criminal charges. They can and do determine, from the start, which charges will proceed to court. Challenging their discretion not to press a charge is seldom possible. Yet, suppose a charge is brought that the accused believes is trivial. Can a defence be mounted on that basis alone?
Justice Arbour argued that in situations where there has been a “technical” violation of the law against assault, a court is free to dismiss the case (to stay proceedings) on the ground that the breach was only “trivial.” In this regard, Justice Arbour cited the legal axiom in Latin: de minimis non curat lex — or, loosely translated, “The law does not concern itself with trifles.”
Raising the de Minimis Defence
According to Justice Arbour, the cases supporting the de minimis rule in criminal cases are “unsatisfactory.” Yet the fact remains that it has been used a number of times by Canadian trial courts — especially in drug cases involving “a tiny quantity of the proscribed drug” and theft cases where the “value of the stolen property is very low.” Justice Arbour wrote:
Generally, the justifications for a de minimis excuse are: (1) it reserves the application of the criminal law to serious misconduct; (2) it protects an accused from the stigma of a criminal conviction and from the imposition of severe penalties for relatively trivial conduct; and (3) it saves courts from being swamped by an enormous number of trivial cases.… In part, the theory is based on a notion that the evil to be prevented by the offence section has not actually occurred. This is consistent with the dual fundamental principle of criminal justice that there is no culpability for harmless and blameless conduct….
The chief justice, speaking for the Court majority in the Foundation case, saw a role for the de minimis rule, although one that had its own problems of ambiguity. But it is one that does not infringe on the Court’s basic holding. She stated:
Finally, Arbour J. argues that parents who face criminal charges as a result of corrective force will be able to rely on the defences of necessity and de minimis. The defence of necessity, I agree, is available, but only in situations where corrective force is not in issue, like saving a child from imminent danger. As for the defence of de minimis, it is equally or more vague and difficult in application than the reasonableness defence offered by section 43.
Cruel and Unusual Treatment or Punishment?
Question: Does section 43 of the Criminal Code offend section 12 of the Charter, which guarantees the “right not to be subject to any cruel and unusual treatment or punishment”? The Foundation argued that such a violation occurs whenever parents or teachers use physical force against children of whatever age.
Answer: None of the Court Justices saw any merit to the Foundation argument. Chief Justice McLachlin, speaking for the Court majority stated that section 12 of the Charter relates to action by the State.
Parents, as such, are not agents of the State. Thus, any action on their part against children cannot be seen as action by the State. Section 12 of the Charter does not apply to the parents.
Teachers, especially, those employed by government, may be seen as employees of the State. However, the chief justice stated that section 43, as it has been interpreted and limited by the Court, cannot rise to the level of cruel and unusual punishment.
The chief justice wrote:
The conduct permitted by section 43 does not in any event rise to the level of being “cruel and unusual,” or so excessive as to outrage standards of decency.… Section 43 permits only corrective force that is reasonable. Conduct cannot be at once both reasonable and an outrage to standards of decency. Corrective force that might rise to the level of “cruel and unusual” remains