The Physical Abuse of Children

• Author: Lisa Joyal/Jennifer Gibson/Lisa Henderson/David Berg/Kasandra Cronin
• Pages: 297-332



The Physical

Abuse of Children

8

I. Introduction.............................................. 298

II. The Offence of Assault Simpliciter............................ 298

A. Overview of the Statutory Framework .................... 298

B. Actus Reus ......................................... 301

C. Mens Rea .......................................... 307

III. The Offence of Assault Causing Bodily Harm ................... 307

A. Elements of the Offence .............................. 307

B. Actus Reus ......................................... 308

C. Mens Rea .......................................... 311

IV. The Offence of Assault with a Weapon ........................ 312

A. Elements of the Offence .............................. 312

B. Actus Reus ......................................... 313

C. Mens Rea .......................................... 315

V. The Offence of Aggravated Assault ........................... 315

A. Elements of the Offence .............................. 315

B. Actus Reus ......................................... 316

C. Mens Rea .......................................... 318

VI. Defences to Crimes Alleging the Physical Abuse of Children . . . . . . . 319

A. Introduction ........................................ 319

B. “Deemed Consent” .................................. 320

C. Necessity .......................................... 322

D. Accident ........................................... 323

E. De Minimis Non Curat Lex ............................ 324

F. Section 43 of the Criminal Code—The Defence of

“Reasonable Correction” .............................. 326

© [2023] Emond Montgomery Publications. All Rights Reserved.

Prosecuting and Defending Oences Against Children

I. Introduction

Under the criminal law of Canada, the physical abuse of children encompasses a wide

range of assaultive behaviour, including hitting, pushing, slapping, punching, throw-

ing, kicking, beating, choking, and shaking, among other acts.1 Similarly, the physical

abuse of children can also cause a wide range of harmful consequences.

While Canadian law criminalizes all sexual contact between adults and children, the

boundaries that regulate other physical contact between adults and children are less

clear. For instance, the physical abuse of children generally involves the “intentional

application of force” against children. However, the criminal law does permit adults, in

certain narrowly defined circumstances, to intentionally apply minor force to children,

either for their benefit and care or for the purpose of “reasonable correction.”2

This chapter focuses on the main offences that capture the physical abuse of chil-

dren, as well as the main defences put forward by those charged with offences alleging

physical abuse.

For the purpose of this chapter, the physical abuse of children will be discussed

under four broad categories of assault:3

1. Assault simpliciter: the most commonly charged form of child assault—

generally speaking, an assault involving the intentional application of force

against a child.

2. Assault causing bodily harm: an assault to a child that has caused “non-

trivial” harm.

3. Assault with a weapon: an assault to a child involving the use or threat of a

weapon.

4. Aggravated assault: the most serious form of child assault—an assault that has

wounded, maimed, disfigured, or endangered the life of a child.

II. The Oence of Assault Simpliciter

A. Overview of the Statutory Framework

Section 265(1) of the Criminal Code establishes the offence of assault simpliciter, or

“common assault.” The offence of assault simpliciter under section 265(1) of the

Code is very broad. Section 265(1) states:

Assault

265(1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other

person, directly or indirectly;

1 Canada, Department of Justice, Child Abuse: A Fact Sheet (Ottawa: Department of Justice, 2002).

2 Canadian Foundation for Children, Youth and the Law v Canada (AG), 2004 SCC 4.

3 Child Abuse: A Fact Sheet, supra note 1.

© [2023] Emond Montgomery Publications. All Rights Reserved.

Chapter 8 The Physical Abuse of Children 

(b) he attempts or threatens, by an act or a gesture, to apply force to another person,

if he has, or causes that other person to believe on reasonable grounds that he has,

present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or

impedes another person or begs.

Section 265(1)(a), (b), and (c) of the Criminal Code describes three separate modes

of committing the offence of assault:4

1. an intentional application of force,

2. an attempted or threatened application of force, and

3. a confrontation with a weapon.

However, the overwhelming majority of prosecutions for child assault are con-

ducted under section 265(1)(a).

The offence of assault simpliciter under section 265(1) of the Criminal Code is

a lesser included offence of assault causing bodily harm (s 267(b)), assault with a

weapon (s 267 (a)), and aggravated assault (s 268).

The general legislative scheme under section 265(1) of the Criminal Code for

thecriminalization of assault broadly protects persons from harm and is aimed at

maximizing the protection of an individual’s physical integrity, personal autonomy,

and voluntary agency.5 Given the breadth of the criminal offence of assault, one

mayask:

Is it right that the criminal law should extend to mere touchings, however trivial? The

traditional justification is that there is no other sensible dividing line, and that this at

least declares the law’s regard for the physical integrity of citizens.6

. The Elements of Section 265(1)(a)

In order to prove an assault under section 265(1)(a) of the Criminal Code, the Crown

must establish the following:

1. the accused applied force to a child, directly or indirectly;

2. the application of force to the child was intentional;

3. the child did not consent to the application of force; and

4. the accused knew that the child did not consent, or was reckless or wilfully

blind to the child’s lack of consent.

4 R v MacKay, 2005 SCC 79.

5 R v Cuerrier, [1998] 2 SCR 371, [1998] SCJ No 64 (QL) at paras 10-15.

6 Andrew Ashworth, Principles of Criminal Law, 7th ed (Oxford: Oxford University Press, 2013)

at 316.

© [2023] Emond Montgomery Publications. All Rights Reserved.