R. v. A.B., 2012 ABQB 421

Court of Queen ’ s Bench of Alberta Citation: R. v. A.B., 2012 ABQB 421 Date: 20120628 Docket: 120648449U1 Registry: Wetaskiwin Between: Her Majesty the Queen Crown - and - A.B. Applicant Restriction on Publication: By Court Order, the evidence taken, the information given, the representations made and these reasons for decision may not be published, broadcast, or transmitted in any manner, until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial. See the Criminal Code , s. 517.

Restriction on Publication: By Court Order, information that may identify the Persons described in this judgment as Complainant may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. See the Criminal Code , s. 486.5. Editorial Notice: The restriction ended November 13, 2012. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit

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Summary [1] The Crown asks for bail review of a Provincial Court Judge’s decision allowing the mother of an 11 year old complainant onan assault charge to have in-person contact with that son, as well as with a 9 year old son who witnessed the slap which is the basis forthe charge. The prosecutor argues that, in relation to the second ground, the judge failed to adequately consider the integrity of thecriminal process.

In relation to the third ground, the prosecutor argues that the mother’s conviction is inevitable as she admitted slappingher son in the head. [2] The Crown has failed to establish that the bail judge committed an error of law. [3] As to the second justification for pre-trial restrictions, the law does not mandate one particular outcome. Rather, the lawonly requires a court to properly consider the appropriate factors.

Here, the bail judge properly considered, i.e. took everything intoconsideration without over- or under- appreciating any particular factor, the evidence at the bail hearing - including the nature of theassault, the circumstances in which the slap occurred, the parenting history of the family, the courses which the mother had taken sincethe slapping incident to learn how to deal with a child who is acting out, together with the bail judge’s personal experience of dealingwith young people in the justice system.

There was no evidence that the protection and safety of either the child complainant or the childwitness necessitated a restriction of in-person contact between the accused and her children. Nor, given the fact that the evidence of thetwo children was recorded audio-visually shortly after the events in question, was a restriction of in-person contact necessary to protectthe administration of justice from interference.

In concluding that a restriction was not necessary in relation to the second ground, the bailjudge committed no error of law. [4] Similarly with respect to the third justification for pre-trial restriction of liberty: even assuming that the third ground mightproperly be considered here despite the absence of unusual issues, the trial judge committed no error of law. Assuming the prosecutionhad an unassailable case for conviction, it was far from clear that an appropriate sanction for the accused’s behaviour would be aprohibition against in-person contact with her children.

In concluding that such a restriction was not necessary to maintain confidence inthe administration of justice, the bail judge committed no error of law. Cases and authority cited [5] By the applicant/Crown: Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) [2004]1 SCR 76, 2004 SCC 4. [6] By the court: R. v Hall 2002 SCC 64 , [2002] 3 S.C.R. 309; R. v Dhillon [2002] O.J. No. 3451(C.A.). 1. Background [7] A.B. is charged with assault of her 11 year old son.

Although there is a minor dispute between the parties about the eventsleading up to the charge, the core allegation is that the mother slapped her son on the face during an unpleasant exchange between them.There is no allegation of injury arising from the slap. The complainant’s then 8 year old brother was a witness to the events.

[ 8 ] Child welfare officials were present when the 11 year old gave at least one of this two audio-visual statements to the police concerning the events. The younger brother also made two statements to the police, at least one of which was recorded audio-visually. So far as the prosecutor on this application is aware, none of the four statements were taken under oath. [ 9 ] After she was charged, the mother was released by a police officer on giving an undertaking which included, among other conditions, that she have no direct contact with either of her sons.

The police officer who imposed the condition indicated that he interpreted the no direct contact restriction to apply only to in-person contact, not to telephone contact, between the mother and her sons. Since that undertaking was given, the younger boy turned 9 and the mother was not allowed to see that son on his birthday. [ 10 ] The children are currently living with their father.

As a result of findings made in contested proceedings between the parents in the Provincial Court in 2010, confirmed in this Court in 2011, A.B. was earlier declared to be the primary caregiver of the complainant. [ 11 ] After dealing with the police officer, the mother then made an application under s. 499(3) of the Code to a Provincial Court Judge to relieve her of the no direct contact undertaking. This is not a reverse onus situation. Child welfare officials were not called as witnesses at the Provincial Court bail hearing by either party.

At the hearing, the prosecution maintained its position that there should be no pre-trial in-person contact whatever between the mother and her two sons. In the result, the bail judge removed the no in-person contact condition. In the reasons she gave for her decision, the bail judge stated that she took into account the facts of the case, the history of the family, the personal history of the mother including her extensive efforts since the incident to take all available courses on dealing with children who are acting out, and the history of the family courts in dealing with similar matters.

She concluded that the no direct contact provision was “ draconian ” , and removed it. [ 12 ] The Crown now asks for review of that decision. 2. What is the burden on an applicant seeking bail review? [ 13 ] The Crown and the defence agree that an applicant who is seeking bail review, whether that applicant is the Crown or the accused, must establish either that the bail judge has committed an error of law or that there are material new circumstances. Here, the prosecution states that the bail judge committed an error of law. 3.

Did the bail judge commit an error of law in failing to take the necessary action to protect the safety of the 11 year old complainant? [ 14 ] The bail judge committed no error of law in dealing with the second ground.. [ 15 ] Individuals who are charged with crimes have a constitutional right to reasonable bail.

In practical terms, this means that - unless there is a reverse onus - no conditions should be imposed on the pre-trial liberty of persons who are accused of committing crimes, other than an undertaking to appear when required for the proceedings, unless the prosecution can satisfy the court that such conditions are “ necessary ” : s. 515(1) and (10).

Of Parliament ’ s three justifications for imposing pre-trial conditions on liberty, the second justification requires the prosecution to establish that it is necessary to place a condition on the mother ’ s pre-trial liberty “ for the protection or safety of the public, including any victim of or witness to the offence . . ., having regard to all the circumstances including any substantial likelihood that the [mother] will, [unless conditions are imposed] commit a criminal offence or interfere with the administration of justice ” . [ 16 ] The evidence before the bail judge concerning the nature of the assault and the circumstances in which it occurred, the involvement of Child Welfare authorities from the outset, the previous parenting findings by the Provincial Court and this court, and the steps which the mother has taken since the events in question to learn how to effectively deal with a child who is demonstrating oppositional behaviour, allowed the bail judge to conclude that neither the complainant ’ s nor the witness ’ s protection and safety were in peril if their mother had in-person contact with them.

The bail judge took into account all of the information presented and came to a conclusion which can be supported on the material before her. Other conclusions might also have been made on that evidence; however, this court is not to substitute its opinion on what is an appropriate conclusion for that of the bail judge unless the bail judge ’ s decision is wrong.

[ 17 ] If one were to focus on Parliament ’ s explanation of what it meant by “ protection or safety ” , including the notion that there was a substantial likelihood that a complainant ’ s or witness ’ s protection or safety would be affected by an accused ’ s attempt to interfere with the administration of justice by attempting to convince or coerce the complainant and/or the witness to give exculpatory evidence at trial, one would also have to acknowledge that the two recorded statements given to the police by each of the complainant and the witness presumably provide the best possible evidence that might be given by each of those children.

The prosecution ’ s case is therefore secure. 4.

Did the bail judge commit an error of law in failing to take the necessary action to maintain confidence in the administration of justice? [ 18 ] The bail judge committed no error of law in dealing with the third ground. [ 19 ] In considering whether the bail judge made an error in consideration of the third justification for pre-trial restriction of liberty, this court commences its analysis by reminding itself that the Supreme Court has instructed us that the third ground is applied appropriately only rarely since the informed public is aware that a core principle of our criminal justice system is that a person is presumed to be innocent of criminal charges until the Crown proves the accused guilty beyond a reasonable doubt: Hall .

There is nothing unusual about the circumstances of the charge here; therefore, the third ground is not appropriately invoked. [ 20 ] However, invoking s. 515(10)(c)(i), relating to the apparent strength of the prosecution ’ s case, the prosecution suggests that a conviction is all but guaranteed here since the mother admitted slapping the child. The prosecution asserts that the Canadian Foundation decision is authority for the proposition that a slap to the head of an 11 year old child is presumptively not saved by the provisions of s. 43 of the Code.

With respect, the issue of whether the slap was administered by way of correction rather than as an assault, remains a live issue for trial. In Canadian Foundation , the majority decision did say that a slap to the head of an 11 year old, even for correction, would presumptively not be reasonable: para. 37.

However, it is important to recall the opening words of that paragraph which state that the conclusions in the paragraph are “ based on the evidence currently before the court ” and to recall also that the evidence referred to was evidence that was presented to the trial court in 2000, and therefore evidence which is likely to be at least 15 years old.

That trial evidence presented in the spanking case, in particular the evidence that slaps to the head are never reasonable, may continue to represent the consensus amongst experts today; however, that is at least one issue that is a viable trial issue. [ 21 ] The Crown also argues that the complainant may lose confidence in the administration of justice if his mother is allowed in- person contact with him after the events he described.

With respect, the test relating to maintenance of confidence in the justice system is not applicable to a complainant, but rather to a reasonable, informed, dispassionate member of the public: Dhillon . The complainant is, almost by definition, not the appropriate test subject for determining public confidence in the justice system. [ 22 ] In any event, however, even if conviction of the accused were a given, it is not a given that the appropriate penalty would be the prohibition of any in-person contact between the convict and the victim.

Indeed, as the Supreme Court itself noted in Canadian Foundation , the task of the criminal law in this area is to create a balance between somewhat competing social values: [deciding not to criminalize non-consensual physical correction] is not grounded in devaluation of the child, but in a concern that to do so risks ruining lives and breaking up families -- a burden that in large part would be borne by children and outweigh any benefit derived from applying the criminal process. [ 23 ] In

summary, even if the third justification could be appropriately considered here, the bail judge was clearly conscious of the need to effect a balance between the rights and the needs of a child as required by the Supreme Court and did strike a balance. 5. Conclusion [ 24 ] In the result, the Crown has not met the burden of establishing that the bail judge committed an error of law. Therefore, the Crown is not entitled to a fresh consideration of whether there should be any limitation of contact between the mother and her two children.

Heard on the 26 th day of June, 2012. Dated at the City of Wetaskiwin, Alberta this 27 th day of June, 2012. J.B. Veit J.C.Q.B.A. Appearances: Rodney Clark, Alberta Justice, Wetaskiwin for the Crown John Jackie, Q.C. for the accused