R. v. Poulin (L.), (2002) 218 Nfld. & P.E.I.R. 68 (PEITD)

• Judge: Jenkins, J.
• Case Date: October 25, 2002
• Jurisdiction: Prince Edward Island
• Citations: (2002), 218 Nfld. & P.E.I.R. 68 (PEITD);2002 PESCTD 68

R. v. Poulin (L.) (2002), 218 Nfld. & P.E.I.R. 68 (PEITD);

    653 A.P.R. 68

MLB headnote and full text

Temp. Cite: [2002] Nfld. & P.E.I.R. TBEd. OC.029

Her Majesty the Queen v. Lucille Poulin

(S-1-GC-164; 2002 PESCTD 68)

Indexed As: R. v. Poulin (L.)

Prince Edward Island Supreme Court

Trial Division

Jenkins, J.

October 25, 2002.

Summary:

An accused was charged with five counts of assaulting children who were in her care.

The Prince Edward Island Supreme Court, Trial Division, found the accused guilty.

Civil Rights - Topic 8302

Canadian Charter of Rights and Freedoms - General - Effect of - General - The Prince Edward Island Supreme Court, Trial Division, stated that the Charter was to be "interpreted and applied in a purposive manner, which implies a generous con­struction rather than a technical or legalis­tic one, understood in light of the interests it was designed to protect, undertaken by reference to the character and larger objects of the Charter, recognizing all the protected rights and values of parents including the accused, of children includ­ing the complainants, and of Canadian society. Meaning is to be given to the pronounced recognition of the supremacy of God and the rule of law in the pre­amble. The Charter is to be construed as being pervasive. The Charter subsumes the common law and the U.N. Covenant provi­sions. The Criminal Code is to read and applied in a manner that is consistent with Charter values." - See paragraph 47.

Civil Rights - Topic 8462

Canadian Charter of Rights and Freedoms - Interpretation - Purposive test - [See Civil Rights - Topic 8302 ].

Civil Rights - Topic 8471

Canadian Charter of Rights and Freedoms - Interpretation - Constitutional recognition of God's supremacy - Effect of - [See Civil Rights - Topic 8302 ].

Criminal Law - Topic 225

General principles - Statutory defences or exceptions - Correction of child by force - The accused nun stood in loco parentis of the five child complainants - She admitted to spanking the complainants with a wooden paddle on at least 25 occasions for discipline purposes during a two year period - She would give a "good stroke" while they were bent over a chair - The chair would move - Seven, 14, 21 or 39 strokes would be delivered depending on the offence - The Prince Edward Island Supreme Court, Trial Division, convicted the accused of assault - The accused's conduct was outside the protection of s. 43 of the Criminal Code (correction by force) - Most of the acts acknowledged exceeded what was reasonable given the excessive intensity, number of strokes and frequency - The court accepted that the accused had hit the complainants frequently, in circum­stances or by means unprotected by s. 43, and that the paddle was used more days than not - The accused also applied excess­ive force when she pulled the children's ears until they cracked and bled - The excessive use of force, sometimes without justification, also disqualified the accused from the protection of the "purpose of corrections" provisions of s. 43 - See paragraphs 158 to 174.

Criminal Law - Topic 225

General principles - Statutory defences or exceptions - Correction of child by force - The Prince Edward Island Supreme Court, Trial Division, stated that "The Court is cautious about second-guessing a parent on the parameters of correction. The Criminal Code does not legislate parental and family values. As a general statement, a parent should not fear criminal law sanctions for appropriately correcting his or her child regarding offences generically categorized in the present case as stealing, lying, mocking or ridiculing others, or disruptive behaviour. However, the basis or reason for applying force in pursuit of the laud­able objectives of the opposite condition, i.e. respect for property of others, honesty, respect for other people, respect for parents and elders, and orderly conduct, is not entirely immune from review." - See para­graph 23.

Criminal Law - Topic 225

General principles - Statutory defences or exceptions - Correction of child by force - The Prince Edward Island Supreme Court, Trial Division, stated that "'Unacceptable' [parenting] would include in the present case punishment without educational value or punishment for breaching rules which upon objective scrutiny taking into account the subjective element are untenable or impossible to satisfy. The Court is not about to question particular chores or practices; however, there is no protection from s. 43 [of the Criminal Code] where the day-in-the-life of a child is burdened by a harsh regime marked by rules that are so onerous that a child is bound sooner or later to fail." - See paragraph 25.

Criminal Law - Topic 225

General principles - Statutory defences or exceptions - Correction of child by force - The Prince Edward Island Supreme Court, Trial Division, stated that the correction of a child by the use of force could not exceed what was "reasonable in the cir­cumstances" (Criminal Code, s. 43) - Consideration of reasonableness was not confined to the child's age and physical condition - The gravity of the offence, the child's character and the likely effect on the child's character were also relevant - The test accorded a degree of latitude - Within a range or band, reasonable parents could come to different and even opposite conclusions without one being unreason­able - The standard of review was not whether the parent was right or wrong or mistaken - If a parent's action fell within the band of reasonableness, no court would replace a parent's judgment with its own - The question was whether the force used fell outside the range of what the court assessed was reasonable upon considering all the circumstances - See paragraphs 28 to 43.

Criminal Law - Topic 225

General principles - Statutory defences or exceptions - Correction of child by force - The Prince Edward Island Supreme Court, Trial Division, stated that "Parents do have the freedom to deal with their children under the creative leading of God. How­ever, the force used must be by way of correction, within broadly interpreted parameters, determined objectively but considering the beliefs and both parent and child at the time, and the degree of force used must not exceed what is objectively reasonable in the circumstances. Failing that, the unwanted force used will be an assault." - See paragraph 52.

Criminal Law - Topic 225

General principles - Statutory defences or exceptions - Correction of child by force - An accused was charged with five counts of assaulting children who were in her care - The Prince Edward Island Supreme Court, Trial Division, stated that "upon being satisfied that the purpose of the force is correction within the meaning of s. 43 [of the Criminal Code] the determination on reasonableness is based not on the instrument of force being a hand or a paddle, but on how the instrument is used - in relation to the circumstances of the child and of the offence being punished - in terms of intensity of the force, or amount of force used, duration of the force, and frequency of occurrence." - See paragraph 160.

Criminal Law - Topic 1413

Assaults - Simple assault - What consti­tutes - [See first Criminal Law - Topic 225 ].

Criminal Law - Topic 1421

Assaults - Defence - Child correction - [See all Criminal Law - Topic 225 ].

Cases Noticed:

R. v. Ogg-Moss, [1984] 2 S.C.R. 173; 54 N.R. 81; 5 O.A.C. 81, refd to. [para. 20].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney Gen­eral) et al., [2000] O.T.C. 769; 146 C.C.C.(3d) 362 (Sup. Ct.), affd. (2002), 154 O.A.C. 144; 161 C.C.C.(3d) 178 (C.A.), leave to appeal granted [2002] S.C.C.A. No. 113 (S.C.C.), refd to. [para. 20].

R. v. Baptiste and Baptiste (1980), 61 C.C.C.(2d) 438 (Ont. Prov. Ct.), refd to. [para. 23].

R. v. R.P., [2000] O.J. No. 5250 (Gen. Div.), refd to. [para. 26].

R. v. R.S.D. (1995), 102 C.C.C.(3d) 319 (Ont. Prov. Div.), refd to. [para. 27].

R. v. Dupperon (1984), 37 Sask.R. 84; 16 C.C.C.(3d) 453 (C.A.), refd to. [para. 30].

R. v. Halcrow (V.A.) (1993), 24 B.C.A.C. 197; 40 W.A.C. 197; 80 C.C.C.(3d) 370 (C.A.), affd. (1995), 179 N.R. 63; 55 B.C.A.C. 72; 90 W.A.C. 72; 95 C.C.C.(3d) 94 (S.C.C.), folld. [para. 30].

R. v. Peterson (D.C.) (1995), 124 D.L.R.(4th) 758 (Ont. Prov. Ct.), refd to. [para. 38].

R. v. R.W.M. (1995), 103 C.C.C.(3d) 375 (P.E.I. Prov. Ct.), refd to. [para. 39].

R. v. Graham (D.) (1994), 151 N.B.R.(2d) 81; 387 A.P.R. 81 (Prov. Ct.), affd. (1995), 160 N.B.R.(2d) 306; 412 A.P.R. 306 (T.D.), dist. [para. 43].

R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161; [1991] 2 W.W.R. 385; 62 C.C.C.(3d) 193; 1 C.R.R.(2d) 1; 2 C.R.(4th) 1, refd to. [para. 177].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 43 [para. 18].

Authors and Works Noticed:

Laskin, Bora, Canadian Constitutional Law (5th Ed. 1986), vol. 2, c. 7, pp. 117 [para. 49]; 1123 [para. 50].

Counsel:

Darrell C. Coombs, for the Crown;

Zia Chishti, for the accused.

Jenkins, J., of the Prince Edward Island Supreme Court, Trial Division, heard this matter at Charlottetown, Prince Edward Island, on September 16-20, 23-27 and 30, and October 1 and 2, 2002, and delivered the following judgment on October 25, 2002.