Judgment of the Court — DICKSON J.
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] 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.
Footnotes
- [1] 5 W.C.B. 266.
Cases cited
- Ogg-Moss v. R. 16648-1984-09-17