Adrian Peterson and Child Abuse in Canada

While we’ll need to wait for the outcome of trial proceedings involving Minnesota Vikings star running back Adrian Peterson on a charge of abusing his four-year-old son and he and Vikings fans will have to wait too before the issue of his return to the playing fields of the NFL is determined, some may wonder how that kind of situation may be addressed in a Canadian criminal court.

Here’s a brief outline of the issues a defence lawyer would face in circumstances like these:
  1. The charge in Canada would likely not be assault causing bodily harm, at least based on the photos we’ve seen.  While disturbing in appearance, unless the injuries suffered by the child could be considered more than “trifling or transient in nature”, they would not constitute “bodily harm” under the Criminal Code;
  2. However, the fact that a portion of tree branch, which has been characterized as a “switch”, was used would mean that the charge would be assault with a weapon.  The Criminal Code defines “weapon” to include anything used, designed to be used or intended for use in causing injury to any person.  There have been decisions interpreting this provision very broadly and, in the circumstances as reported, the switch would qualify as a weapon;
  3. The Crown would have an option on whether to treat the case more seriously as an indictable offence, punishable by up to 10 years imprisonment, or less seriously as a summary conviction offence, punishable by up to 18 months imprisonment.  Having regard to Petersen’s lack of criminal record, the nature of the injuries and his reason for his behaviour, the Crown would probably elect to proceed by summary conviction;
  4. Peterson’s defence would likely be based on s.43 of the Criminal Code which provides a justification for the use of force by a parent on a child “by way of correction” but there is the further limitation, “provided the force does not exceed what is reasonable in the circumstances”.  This section has been the subject of considerable debate for many years.  In 1984,the Supreme Court of Canada limited its applicability to children under 14 and, even then, only where it was for the benefit of the child and provided that the child was capable of learning from the “correction”. On a challenge to the validity of the legislation in 2004, the Supreme Court upheld the legislation but indicated that it only authorized “minor corrective force of a trifling or transitory nature”.  When an object is used, the Court indicated that would be unreasonable.  While Peterson has indicated through his counsel that he didn’t intend to cause harm to his son but only used the kind of force he himself had experienced on growing up, neither of those positions addresses the kinds of concerns the 2004 decision addressed.  Those factors may be of significance on sentence, possibly to provide a basis for a non-custodial sentence if he was convicted, but wouldn’t constitute a defence for the purposes of section 43.
A trial on a matter such as this would likely take several days and would be conducted before a judge, not a jury.  Allowing for the court schedules in many of our courts in this country, it wouldn’t be heard for several months, as a result of which Peterson would probably not be cleared to return to football until next season.  If he is presumed to be innocent, one may question the fairness of his having been placed on the Commissioner’s “exemption list” (which, in my view, is a nicer way of saying ‘we’ll suspend you from playing but you can get paid until your case is finished in the criminal court, thereby satisfying the public’s interest, as well as our sponsors, in our punishing you right now based on the allegations giving rise to a criminal charge”).  But that’s a separate topic for another day.
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Jeffrey Manishen
Jeffrey Manishen
P: 905.572.5813
jmanishen@rossmcbride.com