circumstances is vague, neither parents nor teachers understand the zone of risk, the area in which they might be charged under the criminal law: “A standardless sweep does not become acceptable simply because it results from the whims of judges and justices of the peace rather than the whims of law enforcement officials. Cloaking whims in judicial robes [is] not sufficient to satisfy the principles of fundamental justice.”
Justice Arbour further ruled, that because section 43 is “standardless” — that is, too vague — it cannot meet that portion of section 1 of the Charter, that might otherwise allow a violation of section 7 to stand.
International Treaties and Canada: Protection of the Child
Section 43, Justice Arbour said, had to be measured against the requirements of the Charter, and especially section 7 of that document. After all, the Charter, as the highest law in Canada, sets standards that must be met by statutes such as the Criminal Code.
A source for understanding the rights of children, as they relate to principles of fundamental justice within the meaning of section 7, are Canada’s international obligations found in treaties. There, said Justice Arbour, Canada not only has obligated itself to the United Nations Convention on the Rights of the Child, but Canada is also committed to take part in the Committee on the Rights of the Child, set up under the agreement. That committee, whose comments are not binding, said of section 43 in a summary given by Justice Arbour:
It is notable that the Committee has not recommended clarifying these laws [section 43] so much as abolishing them entirely.… The Committee’s Concluding Observations on Canada’s First Report are illustrative:
Penal legislation allowing corporal punishment of children by parents, in schools and in institutions where children may be placed [should be considered for review]. In this regard … physical punishment of children in families [should] be prohibited. In connection with the child’s right to physical integrity … and in the light of the best interests of the child, … the possibility of introducing new legislation and follow-up mechanisms to prevent violence within the family [should be considered], and … educational campaigns [should] be launched with a view to changing attitudes in society on the use of physical punishment in the family and fostering the acceptance of its legal prohibition. Committee on the Rights of the Child, Report adopted by the Committee at its 233rd meeting on 9 June 1995, Ninth Session, CRC/C/43, at para. 93.
In its most recent Concluding Observations, the Committee expressed “deep concern” that Canada had taken “no action to remove section 43 of the Criminal Code” and recommended the adoption of legislation to remove the existing authorization of the use of “reasonable force” in disciplining children and explicitly prohibit all forms of violence against children, however light, within the family, in schools and in other institutions where children may be placed. (Committee on the Rights of the Child 2003, paras. 32–33)
YOU BE THE JUDGE
A Case of Necessity?
The Facts
Simon Just has been an elementary school teacher for fifteen years. He is recognized by school administrators and students as fair-minded but strict. Rules of conduct, he has frequently said, are meant to be followed. “If they are not taught here and accepted, the likelihood is that they will not be accepted later on in a child’s education.”
Simon Just is an athletic person with a black belt in karate.
One day, he heard screaming in the school hall. Two ten-year-old boys were in the midst of a fight. Both had drawn knives and they were slashing at each other. Both were bleeding.
Just rushed over. He knew both boys. He had been their teacher for three years, and he considered them “hot heads.” They had little capacity to manage their frustrations. With two swift karate chops, Just not only disabled both boys, but knocked them out. Both were rushed to the hospital. They suffered from concussions and dislocated shoulders.
The police laid charges of assault against Just, who admitted that shouting at the boys during the fight might have ended the confrontation. But he felt that this was a chance that he simply could not take. In his view, the boys had been dangerous, capable of seriously wounding him and each other with their knives.
The Issue
Did the fight present an emergency situation that justified Just’s assault?
Points to Consider
Section 43 of the Criminal Code provides: “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 force does not exceed what is reasonable under the circumstances.”
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)
