Supreme Court of Canada

Nixon v. R., [1984] 2 S.C.R. 197

Date: 1984-09-17

Phyllis Jean Nixon (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

File No.: 16763.

1983: November 3; 1984: September 17.

Present: Ritchie, Dickson, Estey, Mclntyre 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, s. 43.

Ogg-Moss v. The Queen, 1984 CanLII 77 (SCC), [1984] 2 S.C.R. 173, applied.

APPEAL from a judgment of the Ontario Court of Appeal setting aside accused’s acquittal on a charge of common assault[^1]. Appeal dismissed.

R.J. Poirier, for the appellant.

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

The judgment of the Court was delivered by

DICKSON J.—The present appeal raises the very issue this Court considered in Ogg-Moss v. The Queen, 1984 CanLII 77 (SCC), [1984] 2 S.C.R. 173, reasons being delivered concurrently herewith, namely, 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.

There is a striking similarity in the factual situations in both cases. The only noticeable differ-

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ence is in the level of mental development of the respective victims. The victim in Ogg-Moss was severely handicapped. The victim in the present case was only moderately retarded and relatively self-sufficient.

In my view, this difference is of no consequence to the determination of this appeal and therefore I do not feel it necessary further to review the facts.

If a severely retarded person is not considered a “child” under s. 43 (Ogg-Moss, supra) then, a fortiori, a moderately handicapped person cannot fall within the restricted definition of “child”.

I would also adopt the analysis in Ogg-Moss as to why an “M.R.C.” is neither “a person standing in the place of a parent” nor a “schoolteacher” and why a moderately retarded adult under his or her care is neither a “child” nor a “pupil” within the meaning of s. 43.

For the reasons given in Ogg-Moss v. The Queen, s. 43 of the Criminal Code does not afford a defence to the accused in the present case. The Court of Appeal did not err in entering a verdict of guilty.

I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: MacGillivray-Poirier, Thunder Bay.

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

[^1]: 5 W.C.B. 266.