Supreme Court of Canada

Ogg-Moss v. R., [1984] 2 S.C.R. 173

Date: 1984-09-17

William Ogg-Moss (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

File No.: 16648.

1983: November 3; 1984: September 17.

Present: Ritchie, Dickson, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Assault—Defences—Protection of persons in authority—Common assault by Mental Retardation Counsellor on mentally retarded adult patient—Whether defence under s. 43 of the Criminal Code available—Whether Mental Retardation Counsellor a “person standing in the place of a parent” or a “schoolteacher”—Whether victim a “child” or a “pupil”—Criminal Code, R.S.C 1970, c. C-34, ss. 43, 771.

Appellant, a Mental Retardation Counsellor, was charged with common assault after hitting a severely handicapped twenty-one year old patient several times on the forehead with a large metal spoon after he had spilled his milk. At trial, the appellant claimed the protection of s. 43 of the Criminal Code arguing that by virtue of his position, his relationship with the patient was that of “a person standing in the place of a parent” or a “schoolteacher” using reasonable force to correct a “child” or “pupil” in his charge.

The Provincial Court Judge dismissed the charges. The County Court Judge overturned this judgment and entered a conviction. On further appeal, the Ontario Court of Appeal returned the case to County Court for a new hearing. The County Court held that s. 43 applied and acquitted the accused. On second appeal to the Court of Appeal the acquittai was set aside. It was held that the appellant was not a “schoolteacher” or “person standing in the place of a parent” and the complainant was neither a “pupil” nor “child” within the meaning of s. 43. The issue on this appeal is whether a Mental Retardation Counsellor who uses physical force on a mentally retarded adult under his supervision has the benefit of s. 43 of the Code.

Held: The appeal should be dismissed.

The Ontario Court of Appeal properly took jurisdiction to consider this appeal pursuant to s. 771(1) of the

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Criminal Code; the definition and meaning of various terms in s. 43 and the question whether there was any evidence capable of sustaining a conclusion that s. 43 applied are issues of law.

Section 43 of the Criminal Code recognizes the right of a schoolteacher, parent or person standing in the place of a parent to use reasonable force in the correction of a child or a pupil. This section must be strictly construed since it deprives an individual or a group of the equal protection normally offered by the criminal law, namely the right to be free from unconsented invasions of physical security or dignity. Here section 43 has no application: a Mental Retardation Counsellor is not a “person standing in the place of a parent” or a “schoolteacher” and a mentally retarded adult under his care, even if severely retarded, is neither a “child” nor a “pupil” within the meaning of s. 43.

In the Criminal Code and in the common law antecedents of s. 43, as well as other relevant statutes, the word “child” always refers to a person chronologically younger than the age of majority; there is no basis for interpreting the word “child” to include adults who are childlike or who are dependant upon a “parenting” figure. A Mental Retardation Officer is not a person standing in place of a parent since he has not assumed all of the obligations incidental to parental relationships, particularly that of support and maintenance. Even assuming that the complainant’s admission to the Centre as a voluntary patient with parental consent implies a delegation of parental powers in favour of the Minister of Social Services, the appellant was not a delegate of the Minister for purposes of exercising any right of correction; indeed, Personal Directive No. M.R. 17 specified that physical force against any resident was forbidden. The meaning of the term “pupil” in s. 43 is limited to a child taking instruction, in the same manner it was at common law. Finally, the term “schoolteacher” generally refers to a person who gives formal instruction in a children’s school. Mental Retardation Counsellors are neither qualified nor licensed as schoolteachers and their functions are those of personal care and not, in any meaningful sense, of teaching.

Even assuming that s. 43 applied to the parties in this case, the appellant’s use of force cannot constitute “using force by way of correction”. The record discloses that the person being corrected was, to the knowledge of

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the person applying the force, incapable of remembering the correction within minutes of its application.

Bennet v. Bennet (1879), 10 Ch. D. 474; Exporte Pye (1811), 18 Ves. 140; Powys v. Mansfield (1837), 3 My. & Cr. 359; Mitchell v. City of Toronto (1921), 1921 CanLII 532 (ON CA), 64 D.L.R. 569; Shtitz v. C.N.R., 1926 CanLII 92 (SK CA), [1927] 1 D.L.R. 951; Fuller v. Fuller, 418 F. 2d 1189 (1969); Busillo v. Hetzel, 374 N.E. 2d 1090 (1978); R. v. Woods (1921), 85 J.P. 272; North Carolina v. Pittard, 263 S.E. 2d 809 (1980); Martin v. United States, 452 A. 2d 360 (1982); Mitchell v. Defies (1846), 2 U.C.Q.B. 430; Brisson v. Lafontaine (1864), 8 L.C. Jur. 173; R. v. Griffin (1869), 11 Cox C.C. 402, referred to.

APPEAL from a judgment of the Ontario Court of Appeal (1981), 1981 CanLII 85 (ON CA), 60 C.C.C. (2d) 127, 24 C.R. (3d) 264, setting aside accused’s acquittal on a charge of common assault. Appeal dismissed.

Ronald L. Doering, for the appellant.

S. Casey Hill and Kenneth L. Campbell, for the respondent.

The judgment of the Court was delivered by

DICKSON J.—This appeal raises the issue of whether a Mental Retardation Counsellor (M.R.C.) who uses physical force on a mentally retarded adult under his supervision has the benefit of s. 43 of the Criminal Code, R.S.C. 1970, c. C-34. Section 43 reads:

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.

The question of the applicability of s. 43 is basically one of statutory construction but inevitably it puts into issue two sensitive topics, namely, the status and rights of mentally retarded persons, and the limits on the disciplinary prerogatives of persons in authority over those in their charge. Despite this overlay of social concerns it is important to remember that the case before this Court is a criminal one and its resolution must be based on

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legal principles.

I Background and Facts

Mr. Ogg-Moss was charged with assaulting one Kent Henderson, a twenty-one year old developmentally handicapped resident of the Rideau Regional Centre, located in Smith Falls, Ontario. Mr. Ogg-Moss was employed at the Regional Centre as an M.R.C. He argues that by virtue of this position, his relationship with Mr. Henderson was that of “a person standing in the place of a parent” or of a “schoolteacher” using reasonable force to “correct” a “child” or “pupil” in his charge. He claims therefore the protection of s. 43.

Mental Retardation Counsellors are the “frontline direct care staff in provincial facilities for the developmentally handicapped. Their duties are set out in Regulations and Directives made pursuant to the Developmental Services Act, R.S.O. 1980, c. 118. These duties include providing daily care for the residents of such facilities and implementing programs designed and supervised by physicians, psychologists and other more senior professional personnel.

On the day in question Mr. Ogg-Moss was supervising a group of residents in a low grade ward. The residents, including Mr. Henderson, were seated at tables awaiting lunch. Mr. Henderson was described in evidence at trial as “very low functioning” and “profoundly retarded” with an I.Q. of less than 20. He was incapable of speech and, as a result of being a “head-banger” suffered from a large haemotoma on his forehead. In an apparent attempt to attract Mr. Ogg-Moss’s attention, Mr. Henderson spilled his milk on the table before him, whereupon Mr. Ogg-Moss shouted “no” and struck Mr. Henderson five times on the forehead with a large metal spoon for the purpose, according to his later testimony, “of punishing him for what he did”.

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The incident was reported by a summer student at the Rideau Regional Centre. It was her testimony that Mr. Henderson did not cry out as a result of being struck but appeared “quite startled”. She felt that had she been hit with that force she would have cried. In his evidence, in response to a question as to Mr. Henderson’s reaction to the blows, Mr. Ogg-Moss replied “Kent can’t speak but he gives this guttural sound and he did give a cry when I hit him”. Mr. Ogg-Moss stated further that five minutes after being hit with the spoon, Mr. Henderson would be incapable of remembering the incident. He conceded he was aware that it was a contravention of hospital policy to strike residents. Previous to the incident he had certified in writing that he had read and understood Personnel Directive Number M.R. 17 of the Ministry of Social Services which specified that physical force against any resident for any reason whatsoever was strictly forbidden.

Paragraph N of the Directive reads:

Striking of Patients:—No patient is to be struck for any reason whatsoever; approved methods of necessary patient restraint specifically exclude striking and any other form of unnecessary aggression. Any employee who strikes, slaps or kicks a patient will be dismissed.

II The Decisions in the Ontario Courts

At first instance in the Ontario Provincial Court, counsel for the Crown conceded that s. 43 was potentially available to the accused as a defence. The case was therefore argued on the issue of whether the force used by Mr. Ogg-Moss was more than “reasonable” in the circumstances. Smith Prov. Ct. J. held that it was not, and that Mr. Ogg-Moss was justified in taking the action he did to discipline the resident and to prevent the hospital from becoming a “mad house”. He dismissed the charge.

The Crown appealed to the County Court where Matheson Co. Ct. J. took a different view of the incident and its surrounding circumstances. While acknowledging the difficult nature of the accused’s

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job, Matheson Co. Ct. J. held that the force used was neither reasonable nor justified and substituted a conviction and a fine.

On further appeal to the Ontario Court of Appeal the applicability of s. 43 was for the first time challenged by the Crown. Since there was no evidence before them on this issue, Justices Jessup, Martin and Weatherston sent the case back to the County Court for a new hearing of the appeal. At this new hearing Flanigan Co. Ct. J. held that a “child” for purposes of s. 43 included a “severely retarded” adult and that Mr. Ogg-Moss stood “in the place of a parent” to Mr. Henderson. Flanigan Co. Ct. J. then stated that in view of what he saw as the limited role of the appellate court on review, he was unwilling to draw different inferences from those drawn by the trial judge on the issue of the reasonableness of the force used by Mr. Ogg‑Moss. He restored the acquittal at trial.

The appeal then returned a second time to the Ontario Court of Appeal (1981), 1981 CanLII 85 (ON CA), 60 C.C.C. (2d) 127, 24 C.R. (3d) 264. In a very brief oral judgment delivered for himself and for Martin and Lacourcière JJ.A., Jessup J.A. set out the facts of the case and then held:

However, in our opinion, the respondent was not a schoolteacher or person standing in the place of a parent and the complainant was neither a pupil or child within the meaning of s. 43. In the result we think the appeal must be allowed and the verdict of acquittal set aside and a verdict of guilty entered. By way of penalty we would impose an absolute discharge.

III The Grounds of Appeal

The appellant was granted leave to appeal on five grounds:

1. Whether the Ontario Court of Appeal erred in holding that a Mental Retardation Counsellor charged with the daily care of profoundly mentally retarded persons are [sic] not in the place of a parent vis-à-vis these persons;

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2. whether the Ontario Court of Appeal erred in holding that a profoundly retarded person with the physical age of twenty-one and the mental age of five is not a “child” for the purposes of the application of Section 43 of the Criminal Code of Canada;

3. whether the Ontario Court of Appeal erred in holding that a Mental Retardation Counsellor charged with training mentally retarded persons in basic life skills are [sic] not schoolteachers and their charges not pupils in the circumstances of an institution for the mentally retarded;

4. whether the Ontario Court of Appeal erred in not ordering a new trial, having concluded that Section 43 of the Criminal Code had no application;

5. that the learned Justices of the Court of Appeal erred in law by basing their decision on a question of fact alone, when the jurisdiction of that Honourable Court was one of appeal restricted to questions of law alone, pursuant to Section 771(1) of the Criminal Code.

Though listed last, the fourth and fifth of these grounds are logically prior to the others since they challenge the jurisdiction of the Court of Appeal to proceed as it did. Counsel for Mr. Ogg-Moss argues that the applicability of a specific section of the Criminal Code to a given set of circumstances is a question of fact. He submits, therefore, that the Court of Appeal’s overturning of Flanigan Co. Ct. J.’s conclusions as to the applicability of s. 43 to the facts of the present case was beyond its jurisdiction which (in summary conviction matters, pursuant to s. 771(1)) is restricted to questions of law. He argues further that if the Court of Appeal was of the opinion that the courts below did not adequately deal with the question of the applicability of s. 43, the proper course would have been to order a new trial.

I cannot accept these submissions. In the present case the issue of the applicability of s. 43 depends on the legal definition and meaning of various terms and phrases in that section and whether, therefore, there was any evidence before the courts below capable of sustaining a conclusion that s. 43 did apply. These are clearly legal questions and therefore within the jurisdiction of the Court of Appeal. If it is correct that s. 43 cannot apply to a

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situation like the present then it must inevitably follow that the blows admittedly struck by Mr. Ogg-Moss constituted an assault under s. 245(1) and the Court of Appeal, in the exercise of its discretion, was within its jurisdiction under s. 613(4)(b)(ii) in substituting a conviction for the acquittal below.

The other three grounds of appeal present different facets of the main question as to whether the Court of Appeal was correct in concluding that s. 43 could not apply to the present case. Mr. Ogg-Moss submits that that court erred in all three of its major conclusions on the question. In contrast to the Court of Appeal’s conclusions, he submits that (1) Mr. Henderson was a “child” within the meaning of s. 43; (2) Mr. Ogg-Moss was “in the place of a parent” to him for purposes of that section, and (3) the relationship between them was that of “schoolteacher” and “pupil”. The Crown submits, on the contrary, that the Court of Appeal was correct in its conclusion on each of the three points and therefore correct in entering a conviction in place of the acquittal below.

Although he purports to base his reading of the terms in issue in this appeal on their “natural and ordinary meaning”, the appellant’s argument is essentially a functional one. He argues that the terms “person in the place of a parent” and “child”, on the one hand, and “schoolteacher” and “pupil”, on the other, refer to relationships. Consequently, he says, the application of s. 43 ought to be determined primarily on the basis of the nature and quality of the relationship between the “parenting person” and the “child” under his care, or between the “schoolteacher” and his “pupil”, rather than on the basis of such factors as the chronological age of the “child” or “pupil”.

Mr. Ogg-Moss therefore seeks to support his contention that he was “in the place of a parent” to Mr. Henderson by citing the Province of Ontario Manual of Program Care Standards

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(September 1976), from which he quotes the following passage:

Direct-care staff shall be responsible for observing, detecting, reporting and managing usual resident illness and behaviour. They shall be trained as surrogate parents to handle such illness and behaviour as are commonly met in the working situation.

(Emphasis added.)

He argues that the functions of an M.R.C. correspond to those of a parent and that, in fact, the M.R.C. is the only “parent” many mentally retarded persons will know. This line of argument found favour with Flanigan Co. Ct. J. who prefaced his conclusion that Mr. Ogg‑Moss stood in the place of a parent to Mr. Henderson by observing:

I can’t think of any person more closely associated with this particular victim [sic] as a parent image than the accused.

On the basis of his contention that an M.R.C. stands in the place of a parent to a mentally retarded person, the appellant argues that the mentally retarded person is a “child” for purposes of s. 43 no matter what his chronological age may be. He contends that this reading of s. 43 is consistent with the ordinary meaning of the word “child”, which, as defined by Webster’s Dictionary of the English Language, includes a “childlike or childish person”. The appellant cites from the decision of Flanigan Co. Ct. J.:

When one looks at the job description that is affixed to the Appellant’s Affidavit…and when one refers to the evidence as to the condition of the victim who has been in this institution for many years, one can come to no other conclusion on any reasonable basis that [sic] the word “child” could not [sic] apply to him. Surely the very services that are applied and that this victim requires are those that we envisage being required by a child of tender years.

Finally, the appellant urges, even if Mr. Henderson was not a “child” within the meaning of s. 43, his relationship to Mr. Ogg-Moss was nevertheless that of a “pupil” to a “schoolteacher”. He contends that the job description of a M.R.C.

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includes teaching “life skills” and that at the time of the incident in question he was teaching Mr. Henderson to eat with a spoon. In the absence of a statutory definition, the terms “schoolteacher” and “pupil” should, he submits, be given a liberal interpretation so as to include this sort of instructional activity.

IV The Purpose and the Effect of s. 43

Mr. Ogg-Moss urges a broad, functional approach to the terms in s. 43. In his submission, the purpose of s. 43 is to protect persons exercising certain parental and instructional functions and therefore its terms ought to be defined so as to further that purpose. I do not doubt that a functional reading is often more appropriate to statutory construction than a slavishly literal one and is often better suited to the attainment of legislative purposes. This appropriateness, however, depends on the accuracy with which the purpose of the enactment is identified.

I note that in the present appeal, there is something circular in the way the appellant identifies the purpose of s. 43. If he is correct, and the terms “in the place of a parent” and “child” or “schoolteacher” and “pupil” ought to be given wide interpretations, then he will also be correct that a particular result, and arguably the purpose, of s. 43 will be to protect persons exercising widely-defined “parental” or “educational” functions. But since the accuracy of this identification of the purpose of s. 43 depends on the accuracy of Mr. Ogg-Moss’s “liberal definitions of its terms, I do not see how it is possible then to turn around and use this purpose to support these very same definitions. It seems clearly true that the purpose of s. 43 and the meaning of its terms are closely intertwined, but the consequence is that neither one can be deduced from an a priori definition of the other. An abstract definition of the hypothetical purpose cannot, therefore, be the proper starting point for a consideration of the meaning of its terms.

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A better starting point, in my view, is not the purpose of s. 43 but its effects. While a confident conclusion as to the purpose of s. 43 must await an accurate assessment of the meaning of its terms, the overall effects of that section are clear, no matter how its terms are defined. It exculpates the use of what would otherwise be criminal force by one group of persons against another. It protects the first group of persons, but, it should be noted, at the same time it removes the protection of the criminal law from the second. For the Attorney General of Ontario this latter effect justifies a restrictive reading of s. 43, specifically of the terms “child” and “pupil”. It is his submission that:

…the class of persons against whom otherwise criminal force can be employed ought to be restricted, not broadened, and…any section which authorizes otherwise illegal physical violence should be strictly construed against the actor.

There is much to be said in favour of this submission. As a statement of general principle it accords with our normal assumptions about the purpose and operation of the criminal law. One of the key rights in our society is the individual’s right to be free from unconsented invasions on his or her physical security or dignity and it is a central purpose of the criminal law to protect members of society from such invasions. I agree with the Attorney General that any derogation from this right and this protection ought to be strictly construed. Where the effect of such a purported derogation is to deprive a specific individual or group of the equal protection we normally assume is offered by the criminal law, I think it appropriate to view the proferred definition with suspicion and to insist on a demonstration of the logic and rationale of the interpretation.

Finally, on this point, it should be noted that s. 43 is not necessary for the protection of persons using physical force in response to violent or dangerous behaviour or in the course of approved treatment. The former situations are already covered by, inter alia, ss. 34, 35, 37, 38, 39 and 41 of

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the Criminal Code. The latter are dealt with by provincial legislation such as the Developmental Services Act, supra, and the Mental Health Act, R.S.O. 1980, c. 262, and by regulations promulgated thereunder, as well as by the common law. Section 43 only applies to “correctional” force unrelated to treatment or to the protection of self or others.

V Is a mentally retarded adult a “child” for purposes of s. 43?

Why in law or in policy should the word “child” be given a definition which would make a mentally retarded person over 21 subject to blows which, if directed at a mentally normal 21‑year old, would constitute an assault? In my view the proposition that a person in Mr. Henderson’s position is a “child”, within the meaning of s. 43, is refuted by the history of s. 43 and its common law antecedents and by the very “functional” analysis through which the proposition is articulated.

(a) ‘‘Child” in s. 43 and its common law antecedents

Both in common parlance and as a legal concept the term “child” has two primary meanings. One refers to chronological age and is the converse of the term “adult”; the other refers to lineage and is the reciprocal of the term “parent”. A child in the first sense was defined at common law as a person under the age of fourteen. This definition may be modified by statutory provision: see, for example, the Child Welfare Act, R.S.O. 1980, c. 66, s. 19(1); the Children s Institutions Act, R.S.O. 1980, c. 67, s. 1(c) and the Children’s Residential Services Act, R.S.O. 1980, c. 71, s. 1(b). No statutory modification, however, fixes an age higher than the age of majority which, in Ontario, pursuant to the Age of Majority and Accountability Act, R.S.O. 1980, c. 7, s. 1(1), is 18 years. A child in the second sense was defined at common law as the legitimate offspring of a parent, but in most jurisdictions this definition has been amended by statute to constitute all offspring, whether legitimate or not, as the “children” of their natural

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or adoptive parents: see, for example, the Children’s Law Reform Act, R.S.O. 1980, c. 68, s. 1.

As I have indicated, according to the appellant there is a third meaning for the term “child” which focusses on the “childishness” or “childlike” behaviour of the person to whom it applies. To my knowledge this definition of child has no equivalent as a legal concept, nor—unless it succeed in the current case—has it ever successfully been urged to interpret a statutory provision. Certainly it is not the meaning of the term child in the common law antecedents of s. 43.

Like s. 43, the common law recognized a right of certain persons to use force in the correction of a “child”. The “child” referred to was a child in the sense both of chronology and of lineage. This is how Blackstone in his Commentaries on the Laws of England, Book I, chap. 16, described the common law right:

The power of a parent by our English laws is much more moderate [than that of the paterfamilias in Roman law]; but still sufficient to keep the child in order and obedience. He may lawfully correct his child being under age, in a reasonable manner; for this is for the benefit of his education… He may also delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis [in the place of a parent], and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed.

(Emphasis added.)

I shall have occasion to return to this quote, but the underlined portion clearly indicates that the power to chastise was, at least at common law, the power of a parent (specifically the father) or of his direct delegate, to discipline his offspring until the age of majority. Blackstone is explicit on this point:

The legal power of a father (for a mother, as such, is entitled to no power, but only to reverence and respect)

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the power of a father, I say, over the persons of his children ceases at the age of twenty one:…

I have no doubt, therefore, that at common law no chronological adult, no matter how “childish” or “childlike”, was subject to corporal correction from his father or his father’s delegate. History does not support the appellant’s interpretation.

Given the seemingly clear restriction of the common law right of correction to a “child” under the age of majority, it seems highly unlikely that the framers of the Criminal Code used this same word to render a wider class of persons subject to such correction. This impression is reinforced by the fact that when a “child” is referred to elsewhere in the Code either explicitly or by implication, it always refers to a person chronologically younger than the age of majority: see ss. 3, 140, 146, 168(3) and 197. It should also be noted that when the Code does wish to refer to a person with a mental handicap it does so not metaphorically as a “child” or by reference to his purportedly “childlike” or “childish” characteristics, but rather directly, if somewhat bluntly, as a “feeble-minded person” or “an idiot” or “imbecile” or simply “insane”. See, for example, ss. 2, 158(2)(b)(ii). Although somewhat disturbing to modern sensibilities the terms “feeble-minded”, “idiot” and “imbecile” are, in fact, the legal equivalents to the current concepts of “mentally retarded” or “developmentally handicapped”. Had the Criminal Code intended to include mentally retarded adults in the category of person subject to corporal punishment, these are the terms it would have used, not “child”.

(b) The “functional” reading of “child”

The foregoing factors of history and statutory construction make the appellant’s proposed interpretation highly unlikely. Beyond them, the skepticism which would in any event be the proper judicial response to the appellant’s proposed extension of the category of persons the common law made subject to corporal correction is in no way allayed even by his “functional” reading of the

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term “child”. The single basis cited by Mr. Ogg-Moss for his metaphorical reading of the word “child” is the purported correspondence between the dependency on a parenting figure by a severely retarded adult and by a “child”. Beyond this single asserted correspondence, there are no submissions that would support a conclusion as to the “childish” or “childlike” nature of mentally retarded persons; nor do I believe that any such arguments could be successfully maintained. Certainly the description in the record of Mr. Henderson’s condition affords no support for such an argument. Incapacity for speech, “headbanging” and inability to recall incidents for more than a few minutes are signs of severe physiological affliction. They do not correspond to any recognizable image of childhood. I agree with the Attorney General for Ontario that there is a qualitative difference between “immaturity”, “childishness” or “childlike” behaviour and the behaviour of a mentally retarded adult, especially as in the present case, of a severely retarded adult.

A further important consideration is that chronological childhood is a transitory phase, and for a child in the chronological sense the suspension of the criminal law’s protection against certain kinds of assault is a temporary phenomenon. For the mentally retarded person the definition of “childhood” proposed by the appellant is a life sentence and the consequent attenuation of his right to dignity and physical security is permanent. I cannot believe that it is the intention of the Criminal Code to create such a category of permanent second-class citizens on the basis of a mental or physical handicap.

If mentally retarded adults are to be considered “children” solely on the basis of their dependency on a “parenting” figure, it is difficult to see how the category of “children” would be limited to the mentally retarded. Essentially the same argument could be made with regard to the functional relationship between sufferers from senility or other cognitive disorder, or perhaps even stroke victims or other invalids, and those who take care of them.

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If an inability to tend to one’s basic needs, or an inability, because of one’s mental state, to function unassisted in society, are indices of “childishness”, then the category of adults subject to correction is a very broad one indeed. I do not believe that a functional analysis of childlike dependency is appropriate in these latter cases and for similar reasons I cannot accept it with regard to mentally retarded adults.

A mentally retarded adult is not a child in fact, nor for purposes of the law in general, nor for purposes of s. 43 of the Criminal Code in particular.

VI Is a Mental Retardation Counsellor a “Person Standing in the Place of a Parent” to a Mentally Retarded Person under His Charge?

Section 43 only authorizes a “person standing in the place of a parent” to use force by way of correction of a child. Since I have concluded that a mentally-retarded adult is not a “child”, it must follow that even if an M.R.C. were a person standing in the place of a parent, he would not be authorized to use force to correct a mentally retarded adult like Mr. Henderson. Even if I were wrong, however, and a mentally retarded adult could be a “child” for purposes of s. 43, I would nevertheless hold that an M.R.C. in the position of Mr. Ogg-Moss is not a “person standing in the place of a parent” within the meaning of that section.

At common law the power to use force for the correction of a child was vested in the child’s parents (originally the father). Blackstone, Commentaries on the Laws of England, Book I, chap. 16, saw it as one of the parental rights which were the correlatives of the parental duties of support, education and protection. As the passage quoted earlier indicates, this right was conceptualized as an aid in discharging the parental duty of education and could be delegated by the parent to a schoolmaster.

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It follows, then, that at common law there are two ways in which a person could put himself “in the place of a parent”. The first is to assume, in the absence or default of the natural parents, the parental duties that give rise to parental rights. The second is to have that right delegated to one by the natural parent.

The first way of assuming the place of a parent is consonant with the well-known line of cases defining the legal meaning of the term in loco parentis or “in the place of a parent”. The locus classicus is the decision of Jessel M.R. in Bennet v. Bennet (1879), 10 Ch. D. 474 (which was itself based on the decisions of Lord Eldon in Ex parte Pye (1811), 18 Ves. 140 and Lord Cottenham, in Powys v. Mansfield (1837), 3 My. & Cr. 359) wherein Jessel M.R. held at pp. 477-78:

…a person in loco parentis means a person taking upon himself the duty of a father of a child to make a provision for that child.

In the case of a person in loco parentis you must prove that he took upon himself the obligation.

This line of cases has been applied in Canada, inter alia, in Mitchell v. City of Toronto (1921), 1921 CanLII 532 (ON CA), 64 D.L.R. 569 (Ont. C.A.) and Shtitz v. C.N.R., 1926 CanLII 92 (SK CA), [1927] 1 D.L.R. 951 (Sask. C.A.) and in the United States, inter alia, in Fuller v. Fuller, 418 F. 2d 1189 (C.A.D.C. 1969), and in Busillo v. Hetzel, 374 N.E. 2d 1090 (I11. App. 1978). These decisions have stressed the central necessity of taking upon oneself responsibility for the child’s financial support in order to fall within the definition of a “person standing in the place of a parent”. See, for example, the passage from the judgment of Turgeon J.A. in the Shtitz case, at p. 959:

A person in loco parentis to a child is one who has acted so as to evidence his intention of placing himself towards the child in the situation which is ordinarily occupied by the father for the provision of the child’s pecuniary wants.

The English cases upon which this definition is based dealt mainly with questions of inheritance, specifically the presumptions of satisfaction and

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ademption in equity. The definition is also relevant, however, to the question of whether the functions a person discharges vis-à-vis a child are sufficiently similar to those of a parent to entitle him to use force in the correction of a child.

The Bennet v. Bennet definition was applied implicitly in R. v. Woods (1921), 85 J.P. 272. In that case Avory J. rejected the claim that an elder brother was in loco parentis for purposes of correction, on the ground that once the children’s father had returned from the war the elder brother could no longer be said to be taking his place. It was applied explicitly and in a manner directly relevant to the current appeal, in North Carolina v. Pittard, 263 S.E. 2d 809 (N.C. App. 1980). In that case a day-care worker had claimed the right to use force in the correction of a child by virtue of the similarity of her functions in caring for the child and those of a parent. Wells J., speaking for the Court, rejected this claim at p. 811:

The relationship of in loco parentis does not arise from the mere placing of a child in the temporary care of other persons by a parent or guardian of such child. The relationship is established only when the person with whom the child is placed intends to assume the status of a parent—by taking on obligations incidental to the parental relationships particularly that of support and maintenance.

(Emphasis added.)

See also, to the same effect, Martin v. United States, 452 A. 2d 360 (D.C. App. 1982).

I agree with these conclusions. Insofar as Mr. Ogg-Moss’s claim to status of a “person standing in the place of a parent” for purposes of using force by way of correction rests on the similarity between the functions of an M.R.C. and of a parent, it cannot succeed. The parent’s power of correction arises from his assumption of all the obligations of parenthood. A person does not step into the place of a parent for purposes of assuming this power unless he also assumes all these obliga-

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tions. Not only does an M.R.C. have no responsibility for the pecuniary needs of the children under his temporary care, those “parental” responsibilities which he does exercise are exercised under the direction and supervision of the Minister and the senior professional staff designated by the Regulations under the Developmental Services Act, supra. He does not, by exercising these limited responsibilities become in the relevant sense, a “person standing in the place of a parent”.

Even if a person does not stand “in the place of a parent” in the Bennet v. Bennet sense, there still remains the second way of assuming this position, that of delegation. Flanigan Co. Ct. J. found that Mr. Ogg-Moss stood in loco parentis to Mr. Henderson “as an agent of the Minister and an employee of the Department”. With respect, I cannot agree. As the decision in Pittard, supra, clearly indicates, delegation cannot simply be inferred from the fact of placing a child in the care of another. I am willing to assume that Mr. Henderson’s admission in early childhood to the Rideau Regional Centre as a voluntary patient with parental consent implies a delegation of parental powers in favour of the Minister. This, however, is not enough. For Mr. Ogg-Moss to succeed, the power must then have moved from the Minister to Mr. Ogg‑Moss. On this latter point, the record in the present case goes beyond a simple absence of evidence of sub-delegation to positive evidence of non-delegation in the form of the prohibition in Personnel Directive Number M.R. 17 forbidding the striking of any resident for any reason whatsoever. Mr. Ogg-Moss was not a delegate of the Minister for purposes of exercising any right of correction that may have been delegated to the Minister; nor, as a consequence of his certification that he read and understood this directive, could he assert that he mistakenly thought that he was.

I conclude that even if a person in the position of Mr. Henderson were a child for purposes of

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s. 43, an M.R.C. in the position of Mr. Ogg-Moss would not be a “person standing in the place of a parent” within the meaning of the section.

VII Is the Relationship between a Mental Retardation Counsellor and a Mentally Retarded Adult under his Care that of “Schoolteacher” and “Pupil”?

(a) “Pupil”

The same considerations apply to the definition of “pupil” for the purposes of s. 43 as to the definition of “child”.

Blackstone, in the passage quoted earlier, makes it clear that at common law the schoolmaster’s right of corporal correction only applied to a chronological child under his charge. He speaks of a parent’s power to correct his underage child being delegated to the “tutor or schoolmaster of his child”. A similar connotation of childhood attaches to the word “pupil” used in s. 43, which, unlike the more neutral “student”, has overtones of immaturity or youthfulness. Were this not so, and were the s. 43 relationship between “schoolmaster” and “pupil” to be read as authorizing corporal correction by anyone teaching something to someone else, then anyone, no matter what his age or his mental competence, would be vulnerable to corporal correction anytime he sought instruction in any field. This would be ludicrous. It is clear that whatever else it may mean, the term “pupil” as used in s. 43 must be limited, as it was at common law, to a child taking instruction.

Since I have already concluded that a mentally retarded adult is not a child for purposes of s. 43, it follows that he is also not a “pupil” within the meaning of that section.

(b) “Schoolteacher”

Because Mr. Henderson is not a “pupil” Mr. Ogg-Moss’s claim to protection by virtue of his status as “schoolteacher” would fail in any event. It also fails because an M.R.C. is not a schoolteacher.

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Like its reciprocal term “pupil” which is narrower than the term “student”, the term “schoolteacher” is narrower than the terms “teacher” or “instructor”. Generally, it refers to a person who gives formal instruction in a children’s school. I would in any event have doubt as to whether an M.R.C. could fall even within the wider definition of “teacher”, since his functions are those of personal care and not, in any meaningful sense, of “teaching”. A fortiori an M.R.C. cannot fall within the more restrictive definition of “schoolteacher”. Mental Retardation Counsellors are neither qualified nor licensed as schoolteachers. Such “educational” responsibilities as they do possess (Mr. Ogg-Moss’s claim rests on the fact that he was “instructing” Mr. Henderson on how to eat with a spoon) have no academic content, and the context in which they are carried out has not even a metaphorical connection with that in which a schoolteacher functions. I think counsel for Mr. Ogg-Moss was well advised at first instance to disclaim any reliance on an M.R.C.’s status as a “schoolteacher”. He has none.

VIII Using Force By Way of Correction

Even if all of the above were incorrect and an M.R.C. could be a “schoolteacher” or “person standing in the place of a parent” and a mentally retarded adult could be a “child” or “pupil” within the meaning of s. 43, the appeal would still fail.

Section 43 authorizes the use of force “by way of correction”. As Blackstone noted, such “correction” of a child is countenanced by the law because it is “for the benefit of his education”. Section 43 is, in other words, a justification. It exculpates a parent, schoolteacher or person standing in the place of a parent who uses force in the correction of a child, because it considers such an action not a wrongful, but a rightful, one. It follows that unless the force is “by way of correction”, that is, for the benefit of the education of the child, the use of force will not be justified.

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An early Canadian illustration of one aspect of this principle is Mitchell v. Defries (1846), 2 U.C.Q.B. 430, which dealt with the common law authorization, now no longer in effect, for a “master” to use force in the correction of his “apprentice”. The Upper Canada Court of Appeal was clearly correct in refusing to read the term “apprentice” so widely as to include a servant. A “master” had a responsibility for the education of his “apprentice”; an employer had no such responsibility toward his employees.

Where the context does imply an educational responsibility, this same reasoning demands that the person applying the force intended it for “correction”, and that the person being “corrected” be capable of learning from the correction. These stipulations are separate and distinct from the additional requirement, essentially a question of fact, that the force used be reasonable in the circumstances.

The first prerequisite, that the force be intended for correction, has been a part of Canadian law since Brisson v. Lafontaine (1864), 8 L.C. Jur. 173 (S.C.) In a passage that has been quoted in almost every subsequent case on the right of correction, Loranger J. said at p. 175 that the schoolteacher’s power of correction could only be exercised in “the interests of instruction” and that “any punishment…motivated by arbitrariness, caprice, anger or bad humour constitutes an offence punishable like ordinary offences.”

The second prerequisite, referring to the child’s capacity, was articulated by Martin B. in R. v. Griffin (1869), 11 Cox C.C. 402, at p. 403: “The law as to correction has reference only to a child capable of appreciating correction.” In Griffin, Martin B. held that a two-and-a-half year old child was not so capable. The English scholar, Professor H.K. Bevan, in his work, The Law Relating to Children (1973), has concluded at p. 212, footnote 11, that on this same basis “there would be no right to punish a child who was mentally disordered”.

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This latter conclusion could, of course, be highly relevant to the present appeal. I find it impossible and unnecessary to decide the correctness of the full breadth of Professor Bevan’s categorical statement. There is no evidence before this Court to the effect that mentally retarded children either are or are not, as a class, capable of appreciating correction. I do agree, however, that insofar as a given mentally retarded child is incapable of appreciating correction, s. 43 does not, as a matter of law, justify the use of force by a person standing in the place of a parent or by a schoolteacher. In the present case where the record discloses that the person being “corrected” was, to the knowledge of the person applying the force, incapable of remembering the “correction” within minutes of its application, the assault could not, as a matter of law, constitute “using force by way of correction” and the person committing it could not have recourse to s. 43.

IX Conclusion

In my view the Court of Appeal was correct in each of its conclusions. An M.R.C. is neither a “person standing in the place of a parent” nor a “schoolteacher” and a mentally retarded adult under his care, even if “severely” or “profoundly” retarded, is neither a “child” nor a “pupil” within the meaning of s. 43. Section 43 cannot therefore have any application to a case like the present.

I wish to reiterate that this conclusion in no way affects the right of a person in authority to use force to protect himself or others from violent or threatening behaviour. The fact that the person behaving in this violent or threatening manner may be mentally handicapped is irrelevant to this right. My conclusion as to the inapplicability of s. 43 also has no effect on the statutory or common law protection enjoyed by those who apply force in the course of medical treatment for which the proper consent has been obtained.

Since s. 43 does not justify the intentional application of force in a situation like the present, it follows that this use of force constitutes an

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assault within the meaning of s. 245(1), I make no comment on the gravity of the, assault nor on the appropriateness of laying criminal charges. These questions are not before us; as in the case of any other intentional application of force they are matters for prosecutorial judgment and the discretion of the sentencing court. The Court of Appeal did not err in entering a verdict of guilty.

I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: Ronald L. Doering, Ottawa.

Solicitor for the respondent: The Attorney General for the Province of Ontario, Toronto.