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6 C.H.R.R. ND/1 (1985)

handle is hein.journals/chhr6 and id is 1 raw text is: CANADIAN HUMAN RIGHTS REPORTER NEW DEVELOPMENTS January, 1985 CASES OF NOTE Section 43 Defence Not Available In Assault Charge Involving Mentally Retarded Adult The Supreme Court of Canada has ruled that Section 43 of the Criminal Code of Canada, which provides a defence for a parent or a teacher who uses reasonable force to correct a child or pupil is not available to a Mental Retardation Counsellor charged with assaulting a mentally disabled person who was in his care. An appeal was launched by William Elford Ogg- Moss from a ruling of the Ontario Court of Appeal which set aside his acquittal by a County Court. Mr. Justice Dickson for a unanimous Court upheld the On- tario Court of Appeal ruling and found that Section 43 is not an available defence for Ogg-Moss and dismissed his appeal. Mr. Ogg-Moss was charged with assaulting a twenty-one year old developmentally handicapped per- son who was a resident of the Rideau Regional Centre. Mr. Ogg-Moss was employed as a mental retardation counsellor. In his defence against the assault charge, Ogg-Moss argued that his relationship with Kent Hen- derson, the victim of the assault, was that of a person standing in the place of a parent or a schoolteacher with a pupil. He claimed the protection of Section 43. The Court found that a mentally retarded adult is not a child in law or in fact. The interpretation argued for by Mr. Ogg-Moss would mean that blows directed at a mentally normal twenty-one year old would con- stitute an assault, but the same blows directed at a mentally disabled twenty-one year old would not. For the mentally disabled person, the definition of 'child- hood' proposed by Ogg-Moss would result in a perma- nent suspension to dignity and physical security. (See Decision 406) Employer Obliged To Accommodate Religious Beliefs An Alberta Board of Inquiry has found that Jim Christie was discriminated against because of his reli- gion by Central Alberta Dairy Pool. Mr. Christie's employment was terminated by the Pool when he failed to show up for work on a holy day of the World Wide Church of God. The Board of Inquiry found that it is not necessary to prove an intent to discriminate under the Alberta Individual's Rights Protection Act and there is an ob- ligation on the employer to accommodate the religious requirements of employees unless that accommodation causes an undue hardship. In this instance, the Board found that Mr. Christie notified his employer in advance of his religious re- quirements and his need to observe the holy day in question could have been accommodated without caus- ing disruption in the collective agreement or causing expense to the employer. The Board declined to order Mr. Christie's reinstate- ment to his employment, however, on the grounds that accommodating his holy days would cause an ongoing conflict with the legitimate requirements of his produc- tion job at the Pool. The Board further found that the employer cannot be expected to resolve this conflict in Mr. Christie's favour on every occasion. The Board ordered Central Alberta Dairy Pool to pay 8,000 dollars to Mr. Christie in compensation for wages lost due to discrimination. (See Decision 404) ND/i Volume 6, C.H.R.R.

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