Kinesiology 4459A/B Lecture Notes - Lecture 17: Child Discipline, Fundamental Justice, Mental Disorder
20 Feb 2017
School
Department
Course
Professor
k
Lecture 17
R V Leitch
Leitch slapped “student”; intentional, in loco parentis; said it was reasonable application of force Section
43.
Judge says the actions were definitely those for correction as Johnsons act was that of disobedience (name
calling)
Was the use of any force necessary?
Leitch never gave student a chance to explain actions. Once he admitted guilt, he was slapped. Judge
believes it to be an unsatisfactory/intolerable basis to make the decision of corrective action. The use of
force was not reasonable and exceeded what was reasonable.
Also states that the skating club can’t take a school designation; is not educational institution ala ministry
of ed. And it’s a voluntary program where you can just remove them for poor behaviour.
No basis to consider Leitch as a parent either.
The blow was an assault and not protected under section 43
Gave an absolute discharge.
(i) R. v. Leitch (1998)
• Facts?
• Charge?
• Pleading?
• Issues?
• Principles?
• Thoughts?
• Accused, skating instructor/coach (Kerry Leitch), heard reports that victim, male skater (James
Johnson), was verbally abusing (swearing) at female partner (Randy)
• Accused met with victim and after victim admitted to allegations, accused slapped victim’s face
• Charged with assault (s. 266)
• Pleading was not guilty
• Facts were admitted, simply a question of law
• Issue was s. 43 of Criminal Code defense
Section 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 defence of reasonable correction appeared in Canada’s first Criminal Code in 1892. The content has
remained virtually unchanged since that time, with the exception of the removal of masters and
apprentices from among the relationships covered by the defence
• Judge determined that slap was a corrective action
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• Judge determined that “the use of force in these circumstances was not reasonable and exceeded
what was reasonable. In retrospect when a clearer view of Johnson’s behavior is taken into
account by virtue of the evidence taken at the trial, there is nothing in that evidence that would, in
my opinion, support the conclusion that Mr. Johnson was standing before Leitch as a person who
needed to be disciplined by the application of force.”
• On that ground and that ground alone, the defence in this case will fail.
• The course that is to be taken is to provide a narrow interpretation of schoolteacher so as to
minimize the risk to the unprotected child that is the subject of discipline.
• “In my view Mr. Leitch does not fall into the category of school teacher when a restricted
interpretation of that word is reasonably considered.”
• “In my opinion there is simply no sound basis for the court to contemplate that Mr. Leitch stood
in the place of a parent towards Mr. Johnson.”
• Found guilty.
• Sentencing?
“I do not perceive a conditional discharge as being a sign of greater culpability than an absolute
discharge. I do view the question of absolute versus conditional as depending entirely on the
characteristics of the accused and whether or not he is a person who can benefit from, and needs, the
corrective measures, or the assistance of a probation officer.”
Judge thought there was nothing to be gained by imposing a conditional discharge, absolute discharge
granted
Any concerns with section 43 of CC?
(ii) Canadian Foundation for Children and Youth v. Attorney General of Canada (S.C.C.2004)
• 6-3 decision that s. 43 did not offend Charter
• S. 7 “life, liberty and security…”
• S. 15 (1) “…. Equal protection and equal benefit of the law…”
• Limitations to application of force based on age and means – nothing under age of 2, hands only
to bottoms until 12, after 12 broader scope depending on circumstances.
Section 43 of the Criminal Code does not offend s. 7 of the Charter. While s. 43 adversely affects
children’s security of the person, it does not offend a principle of fundamental justice:
First, s. 43 provides adequate procedural safeguards to protect this interest, since the child’s
interests are represented at trial by the Crown.
Second, it is not a principle of fundamental justice that laws affecting children must be in their
best interests.
Thirdly, s. 43, properly construed, is not unduly vague or overbroad; it sets real boundaries and
delineates a risk zone for criminal sanction and avoids discretionary law enforcement. The force must
have been intended to be for educative or corrective purposes, relating to restraining, controlling or
expressing disapproval of the actual behaviour of a child capable of benefiting from the correction.
While the words “reasonable under the circumstances” on their face are broad, implicit
limitations add precision. Section 43 does not extend to an application of force that results in harm or the
prospect of harm. Determining what is “reasonable under the circumstances” in the case of child
discipline is assisted by Canada’s international treaty obligations, the circumstances in which the
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Leitch slapped student ; intentional, in loco parentis; said it was reasonable application of force section. Judge says the actions were definitely those for correction as johnsons act was that of disobedience (name calling) Leitch never gave student a chance to explain actions. Judge believes it to be an unsatisfactory/intolerable basis to make the decision of corrective action. The use of force was not reasonable and exceeded what was reasonable. Also states that the skating club can"t take a school designation; is not educational institution ala ministry of ed. And it"s a voluntary program where you can just remove them for poor behaviour. No basis to consider leitch as a parent either. The blow was an assault and not protected under section 43. Issues: accused, skating instructor/coach (kerry leitch), heard reports that victim, male skater (james. Issue was s. 43 of criminal code defense. The defence of reasonable correction appeared in canada"s first criminal code in 1892.
