The offence for which the appellant was convicted is really a species of assault. Since the inception of the Criminal Code in Canada, confinement has been a crime. In the course of my research, I came across a case illustrative of the strict view the common law took of any confinement of an individual. The case is Hunter v. Johnson, [1884] 13 Q.B.D. 225. In that case, a student had been required to do "home lessons", that is scholastic work to be done at home out of school hours. Apparently, the mother of the student had forbade him to do home lessons and gave notice of this to the teacher, the respondent in the case. Thereupon the teacher kept the student at the school for some time to learn the home lesson he had not performed. An Information was laid for common assault against the teacher and at the hearing the justice dismissed summons. The student appealed alleging that his detention was an unlawful imprisonment. Mathew J. said this at 227: ... We are compelled to deal with the matter of education as a statutory interference with the liberty of the subject, and the statute must be construed in the ordinary way. I thought at first that it might be possible to treat this as a matter of school discipline, and within the powers generally exercised by persons in charge of the education of children. Ordinarily an important part of a child's education is the study at home, but here the child has been punished for disobedience of an order which the schoolmaster had no power to make. I had some doubt also as to whether the facts stated on the case would amount to an assault; but bearing in mind the notice that had been sent to the schoolmaster by the mother, and the fact that the child was kept in as a punishment, and could not have got away, I think the case is brought within the authorities that have been referred to. It is therefore a case for a conviction and the infliction of a nominal penalty, and the case must be remitted to the magistrates accordingly.
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