R. v. P.R., 2019 ONCJ 535

ONTARIO COURT OF JUSTICE CITATION: R. v. P.R. , 2019 ONCJ 535 DATE: 2019 02 12 COURT FILE No.: 183862 BETWEEN: HER MAJESTY THE QUEEN — AND — P.R. RESTRICTION ON PUBLICATION: Information contained herein is prohibited from publication pursuant to

Section 486.4(2.2) of the Criminal Code . Before Justice Pieter Joubert Heard on December 14, 2018 Reasons for Judgment released on February 12, 2019 Afton Brown......................................................................................... counsel for the Crown Julian Falconer.................................................................... counsel for the defendant P.R. JOUBERT J.:

Part 1 – Overview [ 1 ] On December 14, 2018 , the defendant P.R. pleaded guilty to a single count of assault, contrary to

section 266 of the Criminal Code of Canada (“ Criminal Code ”). It is admitted by P.R. that between January 1, 2008, and September 8, 2017, he assaulted his son, J.R. The case involves the discipline of a child by his parents in excess of what is permitted by s. 43 of the Criminal Code . Sentencing proceeded and in due course the parties provided their submissions in support of a joint request that an absolute discharge be imposed. I granted their request but, given the facts and the issues raised, I indicated that written reasons would follow. These are my written reasons for decision.

Part 2 – Facts [ 2 ] The facts that pertain to the offence are set out in a Statement of Agreed Facts (“SAF”) which is found at Tab 1 of a Joint Book of Documents (“JBD”), produced and marked as Exhibit 1. Those facts were supplemented by the oral submissions provided by the Crown and accepted by the defence. The facts that pertain to the defendant were provided through the oral submissions of counsel, and through information included in various professional reports, letters and other materials that were included in the JBD, and otherwise tendered as exhibits. I have no difficulty in accepting the information that has been provided. I find the information provided to be both

reliable and credible. I shall rely on the submissions and the materials in setting out the facts, below. [3] In so doing, I acknowledge the request of both Crown and defence that this Court be sensitive to the age of the victim, J.R. Ihave agreed to make an Order directing that any information that could identify the victim shall not be published in any document orbroadcast or transmitted in any way. I find that the appropriate Order is one made pursuant to s. 486.4(2.2).

I have agreed that, bynecessity, the identity of J.R.’s younger sibling, A.R., should also be protected, and that to accomplish this the identity of P.R. and hiswife K.R. should also be protected. I shall refer to these four individuals by their initials. I also decline to identify the specific communitywhere the parties reside, to name the specific professionals involved, or to include any other information that may potentially identify thefamily members. It is unnecessary to do so, and doing so might do precisely what the order that I am making is designed to avoid. [4] I find the facts to be as follows. A.

Offence [5] On September 8, 2017, a member of the Ontario Provincial Police (“O.P.P.”) attended at an office of the Kenora-Rainy RiverDistricts Child and Family Services (“Society”) in response to the Society’s call for assistance in interviewing two children, J.R. (age 15)and A.R (age 10). The interviews were being conducted in furtherance of an investigation into suspected physical violence by thechildren’s parents, P.R. and K.R.

The Society had been made aware of disclosures by J.R., in a school essay submitted in earlySeptember 2017, and verbally to a guidance counsellor, of regular physical discipline in the home. In the essay, J.R. also added, “I thankmy parents for some [of] that discipline they gave me”. [6] From the interviews, it was determined that a number of the disciplinary incidents described by the children could qualify inlaw as assaults. The incident that P.R. has pleaded guilty to involves an event that occurred when J.R. was 8 or 9 years old. It happenedat night when the house was dark. Both K.R. and A.R. were in bed.

P.R. took J.R. out of his bed by the arm. He brought J.R. downstairsto the living room where he questioned the boy about what he had done with his parents’ wedding bands. When J.R. did not sayanything, P.R. disciplined him using a thick fabric military-style utility belt. The child was struck three times on the torso/upper armarea. P.R. stopped when J.R. admitted he had thrown the wedding bands down a storm drain. J.R. did not recall any injury or bruising,only temporary redness.

He also recalled that his father appeared angry and red faced during the incident. [7] J.R. also described other incidents of being physically disciplined by P.R. and the facts are admitted by P.R. Specifically, J.R.recounted being disciplined with the same belt on two other occasions that occurred about one year later when he was 9 or 10 years old.The strikes were to the child’s hands.

J.R. was never disciplined with a belt or object after those incidents which happened around 2011.Rather, J.R. indicated that the usual form of discipline by the defendant was a scolding or, if J.R. made excuses, the loss of a privilegesuch as his laptop or sports. J.R. told the investigators that if what he did was “something big” then P.R. might “use physical discipline ora really high scolding”. J.R. described the physical discipline to include wraps to the head or open-handed slaps. He indicated that as hebecame older the physical discipline would occur only sporadically.

According to both children the defendant never disciplined A.R. byusing physical force but would impose “time-outs” or occasionally revoke a privilege such as missing volleyball practice. A.R. reportedthat P.R. was “a comfort to her and reasonable”. [8] The parties agree that at a time preceding the investigation of September 8, 2017, P.R. made a conscious decision to not use orallow physical discipline in the home.

The parties also agree that while the form of physical discipline used by P.R. is no longer legallypermissible in Canada, as clarified by the Supreme Court of Canada in Canadian Foundation for Children, Youth and the Law v. Canada(Attorney General), 2004 SCC 4 , [2004] 1 S.C.R. 76 (S.C.C.) (“CFCYL v. Canada”), it never resulted in any actual physicalinjury to J.R., was never intended to cause harm to him, and was consistent with P.R.’s upbringing outside of Canada. B. Person before the Court 1. Background [9] P.R. is thirty-eight years old. He is a Black Canadian originally from Jamaica.

P.R. has dual citizenship. He has lived in Canadasince 2006 and resides in one of the communities in the Kenora District with his wife of 18 years, K.R., and their two children, J.R. andA.R. P.R. holds a Baccalaureate of Arts degree in Psychology and a Master of Arts degree in Divinity. He has no criminal record and isemployed by the O.P.P. as a police officer.

I understand that P.R. was employed as a police officer throughout the timeframe specified inthe Information. [10] From the materials before me and the submissions received from both the Crown and the defence, there can be little doubt thatP.R. is anything other than an exemplary member of the O.P.P. and his community. I respect that this is not in dispute but neverthelessprovide the following few illustrations.

In an email from a local community task force, P.R. is credited for the passion, keen interest, andthe “countless volunteer hours” that he has provided both professionally as a representative of the O.P.P. and personally in helping toadvance the work of the task force. He is credited for demonstrating “true leadership” and is credited with helping achieve severaloutcomes including reduction of the involvement of persons with alcohol and/or mental health challenges with the justice system (Exhibit1, Tab 11).

In a letter of reference from the Chief of one of the First Nations communities within the Kenora District, P.R. is credited forthe many volunteer hours that he has contributed in providing “humanitarian assistance/projects” on reserve including projects to assistyouth and toward the development of a wellness center. He is credited with having given of his personal time, and has travelled therewith his wife and children. According to the Chief, P.R. has shown “a long term commitment to service and working alongside ourcommunity with compassion”. (Exhibit 1, Tab 10).

In a letter of reference provided by another local community involvement, also in thearea of instructing youth, P.R. is recognized for his skills and dedication. He is described as working in a leadership and mentoringcapacity and is credited for volunteering significant amounts of time, for helping to foster and maintain healthy relationships, and fortaking the initiative to establish ground rules for healthy communication.

He is reported to be a valued member of the leadership team(Exhibit 1, Tab 8). [11] From the submissions and the materials before me, it is also clear that P.R. is a committed and loving father and parent, whoplaces a high value on family and community. I respect that this is also not in dispute but, once again, provide the following illustrations.First, in the professional reports before me J.R. and A.R. are described as having positive relationships with P.R. J.R. describes him as an

active and supporting parent. A.R. reports that she feels safe at home. The children are described as intelligent, polite and articulate. In their parents’ care they have both excelled academically and socially. They are actively involved in school, in sports, in their church, and in the community. Second, in a letter of reference provided by the family’s pastor who has known P.R. for 11 years the defendant is described as a committed husband and devoted father; as hardworking, trustworthy; and as an “honest person [who] respects the rule of law”.

The pastor credits him for playing an instrumental role in long-term humanitarian work within the region. He is identified as holding a leadership position within the outreach of the church and is credited for his advocacy in serving indigenous peoples with “no strings attached”. The pastor describes him as a visionary community leader with strong strategic skills; as a person of “kindness and exceptional character”; and as someone highly appreciated by his friends, church members, and the community. He is “respected as someone who they can rely on and trust.

He leads through example, with his spirituality, commitment, and great attitude towards life” (Exhibit 1, Tab 9). This echoes the report of the Chief of the First Nations community who writes, “I know [P.R.] to be someone who loves his family and is a person of faith and principle” (Exhibit 1, Tab 10). 2. Rehabilitation Work that Preceded the Investigation [ 12 ] As already indicated, the parties agree that prior to the involvement of the Society or the O.P.P. the defendant had already made a conscious decision to not use or allow physical discipline in the home.

I rely on the materials before me and in particular on a letter of the Society dated August 2, 2018 (Exhibit 2), and a letter from the counsellor of P.R. and his family dated March 25, 2018 (Exhibit 6). Those and other materials, supported by the submissions of both counsel, indicate that per the cultural norms of the family, K.R. had been the primary caregiver of the children. Corporal punishment was allowed, although physical force was never used with A.R. based on the family’s belief system. The use of any belt or object ceased on or about 2011 and the other physical discipline became sporadic over time.

In the months preceding the investigation, P.R. and K.R. recognized that physical discipline was not working, and they made a conscious decision to change their approach. They began to research and seek out supports to help address some of the more challenging behaviours of their children. In a letter from the Society dated August 2, 2018, they are reported to be described by collaterals as having embarked upon “a journey of healing” (Exhibit 1, Tab 2).

I understand that it was in this context that J.R. wrote the essay that resulted in the investigation by the Society and the O.P.P. [ 13 ] I have no reason to doubt what is contained in the information before me. I accept and find the facts accordingly. I find that the active decision of P.R. to stop the behavior that is the subject of the guilty plea, as well as the other physical discipline as described, and to embark with K.R. and their family on a journey of healing, are relevant in these proceedings. I shall refer to these events as pre-charge rehabilitation efforts. 3.

Impact of the Child Welfare Intervention and the Terms of Release [ 14 ] As a consequence of the criminal investigation, P.R. and K.R. were both charged criminally and P.R. was suspended from his employment. He has remained suspended up to the date of the plea and sentencing before me. I understand that P.R. also faces a disciplinary process that has been pending the outcome of the criminal process. From the materials and the submissions received from the Crown and defence, it is clear that during the criminal process P.R. was cooperative with police.

He was similarly cooperative and open with the Society throughout the child welfare process. [ 15 ] For reasons that are not at all clear on the record before me the Society did not enter into a voluntary care agreement with P.R. and K.R. to permit J.R. and A.R. to be cared for within the family home by their parents. Nor did the Society enter into a voluntary agreement to have the children cared for by a relative, neighbor or other member of the children’s community or extended family. Rather, J.R. and A.R were apprehended by the Society and placed in foster care.

By terms of release entered into before a Justice on September 19, 2017, the defendant was prohibited from contacting or communicating with the children except through supervised access as approved by the Society. [ 16 ] On behalf of his client, Mr. Falconer filed in evidence a copy of an e-mail dated October 17, 2017, authored by the lawyer appointed by the Office of the Children’s Lawyer to represent the children (Exhibit 2).

In the e-mail, the lawyer reported that J.R. had repeatedly expressed that he did not fear his father, that he wanted to spend time with him unsupervised, and that he was interested in having him watch his school volleyball games. On November 3, 2017, the terms of bail were amended to replace the no contact condition with one requiring that P.R. keep the peace and be of good behavior toward the children. I understand that it was three months before the children were returned from foster care to the care of P.R.

I also understand that K.R. was not permitted to return home for some further period of months. [ 17 ] It is the position of Mr. Falconer that in his client’s case “the system did not work”. Mr. Falconer indicates the family was separated for months and that a theme of questioning pervaded the process. He submits that the consequences have been extreme in terms of the disruption to the lives of his client and the family. He also submits that the investigation of his client led to the investigation of other black members of the church which P.R. and his family are a part of. I understand Mr.

Falconer’s submission to be that racial or ethnic considerations might have been at play. Mr. Falconer submits that the case has gained notoriety in the black community. He also stresses that this Court ought not to view the discipline in this case from a racial or ethnic vantage point in the sense of finding that the discipline that occurred happened as a consequence of the defendant being black or from Jamaica. Mr.

Falconer submits that the law in Canada has evolved and that there are doubtless other Canadians who might have responded in a similar fashion whose racial or ethnic background differs from that of his client. [ 18 ] I agree with the latter submission of Mr. Falconer. I would refer to the decision of the Court of Appeal for Manitoba in R. v. K. (M.) , [1992] M.J. No. 334 (C.A.) , involving the discipline of an eight year old child by his father.

The child had opened a pack of sunflower seeds against the express direction of his parents for fear that the seeds would be spilled on the carpet near the two year old sibling. While the child tried to pick up the fallen seeds, the two year old got a hold of some of them and started to choke. The trial judge convicted the father for assault in administering more force than was viewed to be reasonable in the circumstances, namely, “kicking the child …. with his stockinged foot as a prelude to sending the boy to bed” (para. 8). The judge imposed a conditional discharge.

In the subsequent appeal by the father, a three-member panel of the Court granted a judicial stay of proceedings. O’Sullivan J.A. for the Court held at paras. 4-5:

In my opinion, this is a case which should never have come to the courts. I do not understand the policy of the Ministry of Justice whichapparently believes that the full force of the criminal law should be brought to bear against a father who in good faith administerspunishment to his son in a manner which the trial judge deemed to be excessive, but which was well within the range of what has beengenerally accepted by parents in this province over the years.

It sounds nice to say we will have zero tolerance for domestic violence, butthe result of such a policy is a case such as we have here where a family is torn apart by judicial proceedings. I shudder to think what would have happened to my father or my mother if they had got caught in the toils of the law enforcementauthorities as administered by the current Department of Justice. The discipline administered to the boy in question in these proceedingswas mild indeed compared to the discipline I received in my home.

There were times when I thought my parents were too strict, but inretrospect I am glad that my parents were not subjected to prosecution or persecution for attempting to keep the children in my family inline. [19] The decision in K. (M.) was referred to in the CFCYL v. Canada case, which the parties have referred me to. I wish to be clearin expressing that the values expressed in K. (M.) are, clearly, at odds with the law as clarified by the Supreme Court of Canada. I alsowish to be clear in expressing that the decision in K. (M.) was not without controversy. See as an example Anne McGillivray, “R. v.

K.(M.): Legitimating Brutality” (1993), 16 C.R. (4th) 125, cited in Canadian Foundation at para. 173. It would be inappropriate to view K.(M.) as a case reflecting with any clarity the values of Canadians in 1992. However, it is entirely appropriate to view the case, along withothers as cited by in CFCYL v. Canada, to reflect attitudes about the appropriateness and effectiveness of physical discipline that havebeen in a state of flux or change.

I also have no difficulty in agreeing that, while the ethnicity of the person being sentenced may assistthe Court in understanding how the person being sentenced may have come to view the discipline to be appropriate or effective, thediscipline itself ought not to be viewed or treated in a way that negatively comments upon or otherwise impugns the race or ethnicity ofthe person being sentenced. [20] If this case has become charged along racial lines then it is most unfortunate. I would observe that the impact of anti-Blackracism in Canadian society was the subject of consideration in a recent decision, R. v.

Morris, [2018] O.J. No. 4631 (S.C.J.). Among thematerials considered by Nakatsuru J. (as he then was) was an expert report dealing with anti-Black racism authored by Professor AkwasiOwusu-Bempah, Ms. Camisha Sibblis, and Professor Carl James. In addressing admissibility of the report, Nakatsuru J. relied on theearlier decision of R. v. Jackson, 2018 ONSC 2527 , [2018] O.J. No. 2136 (S.C.J.) to hold as follows at paras. 20-21: The Crown objected to the admissibility of this report at this sentencing hearing.

The core of her objection is that it was not necessary.She argued that the law has now long taken notice of these sorts of things. Experts were not required for me to consider them. I agree. Indeed in Jackson, I found that judicial notice should be taken of the things that Professor James, Professor Owusu-Bempah, andMs. Sibblis discuss in this report. At the same time, I recognize how important it is to have these issues concerning racism anddiscrimination explained well for the education of judges, lawyers, and the public. This report describes it very well. It is very wellresearched.

I believe it to be so useful that I am attaching it as Appendix A to my reasons. It is invaluable to have such a report availablefor every judge on every sentencing of a Black offender. I found it to be so in mine. [21] It is appreciated that the expert report that Nakatsuru J. has included at Appendix A to the reasons in Morris focuses onCanadian society in general and the Toronto region in particular. The expert report does not focus on the northern experience in generalor the Kenora District specifically. Nevertheless, the report contains valuable insights on racism and discrimination.

I would observe thatsome of what is contained in the report is echoed by information provided in a family reunification assessment dated July 20, 2018,written by a psychologist who is a member of the Association of Black Psychologists and a member of the African Canadian SupportNetwork. The family reunification indicates that racial and ethnic disparities are present in Northern Ontario for black families and thatthere is a lack of culturally appropriate services available (Exhibit 1, Tab 3).

I commend both reports to the parties, and I would express,in no uncertain terms, that if investigations are being made on the basis of race or ethnicity then such practices must cease immediately. Ido so mindful that no evidence was tendered by either party to confirm the existence of a further investigation, but also mindful that thesubmissions to that effect were advanced by a highly esteemed and senior member of the defence bar. [22] I am also mindful, in addressing the submission that “the system did not work” that this matter is a criminal sentencing matterand not a child protection matter.

I am in no position to make any factual findings or determinations on issues under the Child, Youth andFamily Services Act (“CYFSA”). Nor would it be appropriate to do so and I would note that counsel for the Society has had noopportunity to provide submissions and has no standing to do so in criminal proceedings. [23] I do, however, have the authority to make findings of fact as are relevant to the criminal sentencing proceedings and, from thatstandpoint, I am prepared to find as follows.

First, by all accounts provided to me, J.R. and A.R. were removed from a loving homeenvironment in which both children were doing well. Second, they were removed from that environment in relation to allegations ofphysical discipline which, by all accounts before me, related to disciplinary behaviours that turned out to have stopped at a timepreceding the investigation. Third, the defendant was, by all accounts before me, a loving and caring parent and highly esteemedmember of his community.

Fourth, the defendant was placed on conditions of bail which, in combination with the intervention by theSociety, did impact to a very significant extent his ability to care for his children. I find the impact upon the children and in turn uponP.R. to be relevant for sentencing purposes. [24] Respecting the children, from the submissions and the materials jointly filed in evidence the impact of the state intervention canonly be described as tragic.

J.R. is reported to have experienced feelings of guilt, sadness, and other emotions at a level which placed himat a potential risk for future depression and suicidality. He is reported to have grown increasingly distrustful of the educational andcriminal justice and child welfare system, and to have expressed a desire for the damage caused by the child welfare and criminaljustice/court system to cease so that he could begin to heal and regain his family. A.R. is reported as having experienced the events astraumatic. She reportedly did not have good experiences with her workers and expressed fear and sadness.

One year later, in September2018, A.R. reportedly experienced a re-triggering of the traumatic memories. Again, this is the evidence before me in materials jointlyfiled by the parties. [25] The impact upon the children as reported by service providers involved with the family was summarized by the Society in the

August 2, 2018 letter: Service providers reported concern of the negative impact that child welfare services have had on the children. They reported concern that intervention has done further harm rather than help the children or the family. They reported frustration by the lack of consideration of creative safety planning or kinship placements. Further, they reported that the agency was not clear regarding what the family needed to resolve protection concerns and, in their view, did not recognize the work that has been done on their own with their own resources and connections.

Overall, there appeared to be strength in the family’s support network both formally and informally. The collaterals are believed to be strong advocates for the family. I have no reason to question the concern raised by the service providers as described by the Society. I accept their report to the Society which is consistent with the other materials filed and the submissions of the defence, unopposed by the Crown. [ 26 ] The impact of state intervention upon P.R. was undoubtedly also very significant.

As evidenced in the August 2, 2018 letter of the Society, P.R. described the time that his children were in care as having been “the worst and most difficult days of his life. He reported that there is nothing that could occur that would be worse”. I accept this to be an accurate expression of how P.R. experienced the situation. I also accept the submissions of defence counsel about the impact upon P.R.

I find that the child welfare intervention and the terms of release resulted in a situation which P.R. experienced to be extremely challenging, involving what may be seen as the highest form of intervention and very stringent terms of release. 4. Post-Charge Rehabilitation and Healing Efforts [ 27 ] The parties agree that significant work was done by P.R. in the interest of rehabilitation. I agree and shall refer to a report from the individual/family counsellor of P.R. dated March 25, 2018 (Exhibit 1, Tab 6).

According to the counsellor, by that date P.R. and K.R. had completed a review of their current parenting principles and practices, researched and worked on parenting courses including completion of the Teen Triple P Online Positive Parenting Program, engaged in several discussions with her about 21st century parenting in Canada, and built upon many of their existing parenting skills. In addition the counsellor reports as follows: 1. The parents have engaged in and actively participated in mental health counselling. 2.

They have engaged in and completed parenting courses as approved by the Society. (see Firefly recommendations.) 3. The parents were denied Firefly counselling, but [the counsellor] ensured they learned more effective discipline techniques and they have consistently demonstrated them in their parenting, as confirmed by the children in their sessions. 4.

The parents attempted to engage with the Society’s Family Support Practitioner. [The counsellor] ensured in [the] sessions that [they] have covered appropriate parenting skills and addressed issues around domestic violence, and programming to understand the impact of domestic violence on self and children. 5.

The parents attended adult mental health counseling and have followed through with all assessments and recommendations to address but not limited to the understanding of healthy versus unhealthy relationships, stress management, coping techniques, childhood trauma and family of origin issues. 6. [The parents] have ensured the children’s mental, emotional, and physical needs are met and have followed through with all assessments and recommendations. [ 28 ] The materials indicate that following their return home, J.R. and A.R. again excelled.

They reportedly enjoyed their time back with their parents and have engaged in outdoor winter activities, family trips, and as a family in church and community volunteer activities. J.R. has been involved in three sports and maintained very high grades in school whereas A.R. has excelled in school with grades in the 80’s and 90’s.

I accept the information provided by the individual/family counsellor (Exhibit 1, Tab 6) that on January 24, 2018, she attended a family conference meeting in which the terms of a Voluntary Service Agreement were reviewed and the document signed. (A copy was included in the Joint Book of Documents and can be found at Tab 6.) I also accept the counsellor’s report that following the meeting a worker of the Society agreed that the tasks/requirements outlined in the agreement had been met by the parties, and that she would recommend that the file should be closed.

I accept that the worker indicated that the family was healthy and did not need to be under a Supervision Order and did not require further monitoring or involvement by the Society. I also accept the professional opinion expressed by the individual/family counsellor that neither P.R. nor K.R. present a risk of harm to the children. I find in accordance with a letter from the Society dated May 29, 2018, that the child protection matter was closed on or about May 28, 2018, at which time a closing visit occurred.

The letter was sent in formal confirmation of the file closure. (Exhibit 1, Tab 4). [ 29 ] The materials indicate that while the rehabilitation of P.R. has completed the healing for the family, to address the impact that service delivery has had upon them, will continue in the form of counselling to address the impact of separation, most notably the impact upon A.R. and J.R. In that respect, P.R. and his family have taken the initiative to participate in a community justice circle convened by one of the local First Nations communities on November 22, 2018.

A copy of the report was tendered by the defence (Exhibit 3). The purpose as expressed in the report was to help stabilize the family from the trauma experienced during the child protective intervention process. It is reported that as part of the healing family each member including P.R. engaged in individual and group activities that helped to create a foundation for healing. I understand that P.R. expresses a desire to assist other families in his community by advocating for changes in the criminal and child welfare service delivery in his community.

Part 3 – Analysis A. Criminal Nature of the Discipline [ 30 ] I am in full agreement with the parties that the impugned conduct in the case before me constitutes a criminal assault and is not

justified under s. 43 of the Criminal Code. Under s. 43, parents are justified in using force by way of correction toward a child who areunder their care only if the force used does not exceed what is reasonable in the circumstances. I agree with the parties that the CanadianFoundation case makes it clear that s. 43 exempts from criminal responsibility minor corrective force of a transitory and trifling nature.The use of objects such as a belt on any child of whatever age, or the use of slaps or blows to the head, is not reasonable and is thereforenot subject to protection under s. 43.

The provision cannot provide a legal justification in the facts of this case. B. Joint Submission [31] I also acknowledge that the parties advance a joint request. The decision in R. v. Anthony Cook, 2016 SCC 43 , [2016]2 SCR 204 (S.C.C.) applies. I shall not depart from the joint submission unless granting it would bring the administration of justice intodisrepute or otherwise be contrary to the public interest. C.

Sentencing Approach [32] The discharge provisions are clearly subject to the fundamental purpose, objectives, and principles of sentencing as expressed inPart XXIII of the Criminal Code and should be considered in light of the sentencing cases dealing with acts of punishment that are of aparental and disciplinary nature and which exceed what s. 43 of the Criminal Code permits. In that regard I observe as follows. 1.

Purpose, Objectives and Principles [33] S. 718 of the Criminal Code provides as follows: Purpose 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respectfor the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [34] S. 718.1 of the Criminal Code provides as follows: Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [35] I agree with the submission of the Crown that the punishment administered by P.R. on the evening in question, when J.R. was 8or 9 years of age, falls within the definition of “abuse” for purposes sentencing.

I find that s. 718.01 of the Criminal Code applies: Objectives — offences against children 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall giveprimary consideration to the objectives of denunciation and deterrence of such conduct. [36] I also agree that the defendant as the parent of J.R. was in a position of trust and I find that ss. 718.02(a), (ii.1) and (iii) apply: Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, ….. (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, ….. shall be deemed to be aggravating circumstances; [37] Finally, I agree that other principles of sentencing apply in this case and in particular I find the following sub-provisions of s.718.2 apply:

(

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; ….. (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. 2.

Corrective Discipline Cases [38] Corrective discipline cases present a unique challenge to the sentencing Court, which must balance the vulnerability of childrenand the fact that the offender stands in a position of trust with any number of other circumstances including the nature of the relationship,the purpose of the discipline, the form of the discipline, the level of the injury, whether injury was intended, the impact upon the child,and so forth.

I am mindful that the Court of Appeal for Ontario has repeatedly expressed that the sentencing process must operate in away ensures that defenceless children are protected from mistreatment by their parents and caregivers. See, R. v. Cudmore, [1972] O.J.No. 1680 (Ont. C.A.) at para. 6; R. v. Cooper, [1985] O.J. No. 138 (C.A.) at para. 10; R. v. Naglik, (ON CA), [1991]O.J. No. 789 (Ont. C.A.) at para. 90, reversed on other grounds, (SCC), [1993] 3 S.C.R. 122; R. v. C.M.R., (ON CA), [2004] O.J. No. 4490 at paras. 14-16; and R. v. M.J., [2018] O.J. No. 4556 (Ont. C.A.) at para. 15.

At the same time,the sorts of actions that can be described as “abuse” within the meaning of s. 718.01 and ss. 718.02(a), (ii.1) and (iii) can range frompunishment of a minor nature intended to correct misbehavior and which results in little to no injury, on one hand, to the sort of highlyinjurious abuse that confronted the Court in cases such as Cudmore, Cooper, Naglik, C.M.R., and M.J. [39] That denunciation and deterrence are primary considerations does not mean that the general approach is a sentence of custody.It does, of course, mean that the concerns expressed in cases such as those referred to above need to be factored appropriately into thedecision making matrix.

The extent, and the form, that denunciation and deterrence will take will, in my view, vary from case to case,taking into consideration s. 718.01 and ss. 718.02(a), (ii.1) and (iii) as they apply to the circumstances of the case before the Court, andas those circumstances call into consideration the other objectives and that apply. I respectfully decline, as a result, to reach a conclusionsimilar to the one reached by Woods J. in R. v. D.W., [2014] B.C.J.

No. 822 (B.C.P.C.), who concluded that in British Columbia thecourts generally impose custodial sentences for cases involving violence to children. (See paras. 59-61.) The case was referred to bycounsel in their submissions in support of an absolute discharge. I find it neither necessary nor desirable in the present case to draw sucha conclusion in relation to the jurisprudence in Ontario. D. Discharge Provisions [40] Turning to the specific disposition being requested, I observe that the availability of a discharge is governed by s. 730 of theCriminal Code which provides in part:

(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which aminimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court beforewhich the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, insteadof convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation ordermade under subsection 731(2). [41] The defendant in the present case is not an organization.

Nor is common assault an offence for which a minimum punishmentis prescribed or an offence punishable by imprisonment for fourteen years or life. The question in this case is whether it is the bestinterests of the accused and whether it is not contrary to the public interest to grant a discharge. If so, a further question is whether todischarge the defendant absolutely or conditionally in accordance with s. 730(2). 1. Best Interests of the Accused [42] The meaning of the phrases “best interests of the accused” bears consideration. Its meaning was considered by the Court ofAppeal for Ontario in R. v.

Sanchez-Pino, (ON CA), [1973] O.J. No. 1903 (Ont. C.A.). Writing for a three memberpanel of the Court of Appeal for Ontario, Arnup J.A. held as follows at para. 17: The granting of some form of discharge must be "in the best interests of the accused". I take this to mean that deterrence of the offenderhimself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is hisrehabilitation through correctional or treatment centres, except to the same extent.

Normally he will be a person of good character, or atleast of such character that the entry of a conviction against him may have significant repercussions. [43] Of note, Arnup J.A. defined the concept of best interests of the accused by referring to sentencing objectives. I would note, insimilar fashion, that general deterrence is not likely a relevant consideration when determining what is in the best interests of theaccused. However, specific deterrence may be of some limited relevance.

Arnup J.A. writes, “I take this to mean that deterrence of theoffender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order”.Separation is also unlikely to be a relevant consideration when determining what is in the best interests of the accused. However,rehabilitation may have some limited relevance which is what I interpret Arnup J.A. to mean by holding, “Nor is his rehabilitationthrough correctional or treatment centres, except to the same extent”.

The same may be said in relation to the objective of reparation andthe objective of promoting a sense of responsibility and an acknowledgement of the harm done to victims or the community. [44] I interpret Sanchez-Pino to call upon the sentencing Court to take a principled approach in deciding whether a discharge wouldbe in the best interests of the accused.

I interpret the decision to call upon sentencing judges to consider the actual accused who standsbefore the Court and ask whether the registration of a criminal conviction is, in fact, required in that person’s best interests, taking intoconsideration all of the relevant circumstances, principles, and objectives that apply in the case. I also interpret the Court in Sanchez-

Pino to call upon the sentencing Court to be flexible. At paras. 18-19, Arnup J.A. wrote: …. In some cases, the trivial nature of the offence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender. To attempt more specific delineation would be unwise, and might serve to fetter what I conceive to be a wide, albeit judicial, discretion vested in the trial Court.

That Court must consider all of the circumstances of the accused, and the nature and circumstances of the offence, against the background of proper law enforcement in the community, and the general criteria that I have mentioned. [ 45 ] I do not interpret Sanchez-Pino to require, nor do I agree that the law requires, that the accused must demonstrate that there would be significant repercussions if a discharge were not granted. I appreciate that, practically speaking, the cases often focus on the impact that a criminal conviction will have upon the accused and that the impact can be very significant.

See, generally, the discussion in C. Ruby et al., Sentencing , 9th ed. (Toronto: LexisNexis Canada Inc., 2017) (“Ruby on Sentencing ”) at pp. 460-461. But, in my view, the question is whether or not it is in the best interests of the accused and, as was observed by Arnup J.A., the guidelines provided by Parliament are “meagre” (para. 17).

If this Court is to remain true to the principle of s. 718.2(d), that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances, then I see no reason why more is required to be demonstrated at the “best interest” stage than establishing that the sentencing alternative best aligned with the interests of the accused, on the evidence, is a discharge. [ 46 ] Turning to the present case, I have no difficulty in agreeing with the parties that granting a discharge is in the best interests of the accused. P.R. comes before the Court without any criminal record.

He is a person not only of good character but exceptional character in all areas of his life. The materials received make it clear that P.R. is a committed and loving father and a dedicated husband. Before any intervention by the child welfare or police authorities, P.R. along with K.R. took it upon themselves to challenge their own upbringing and their own parenting practices. They ceased the behavior that is the subject of the criminal charge before me. They actively sought out assistance. They viewed this to be part of a larger healing journey in the interest of themselves and their children.

The materials before me make it clear that P.R. is a leader in his work, in his church and in the broader community. [ 47 ] In taking into consideration all relevant circumstances, objectives, and principles that apply at this stage of the analysis, I can see no reason why it would not be in the best interests of P.R. to receive a discharge and can find no rational basis to conclude that anything would be gained in his best interests through the registration of a criminal conviction in this case. I would conclude that this, in and of itself, is sufficient to satisfy the best interests criterion.

However, I would also observe that in this case the registration of a criminal conviction would have significant repercussions on the employment of the defendant, which would in all likelihood impact his standing in the community and the wellbeing of a family that has experienced a high level of traumatic impact. The “best interests” criterion is clearly met. 2. Not Contrary to the Public Interest [ 48 ] The greater concern is whether it is “not contrary to the public interest” to impose a discharge. In considering the public interest criterion, I would refer once again to the decision in Sanchez-Pino .

Arnup J.A. held as follows at paras. 17-18: …. It must not be “contrary to the public interest” to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence -- a standard part of the criteria for sentencing. Obviously the

section is not confined to “simple cases of possession of marijuana”. It is not confined to any class of offences except to the extent I have noted. On the other hand, it is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is “not contrary to public interest”. [ 49 ] Of note, Arnup J.A. grounds the discussion in an important sentencing objective, general deterrence. However, the approach is also flexible. General deterrence is referred to as one element to be considered.

I interpret the decision to call upon the sentencing judge to consider all of the circumstances, objectives, and principles that relate to the public interest in the case before the Court. I also interpret the decision to call upon the court to be flexible. In my view such an

interpretation is consistent with the jurisprudence, generally. See as an example Ruby on Sentencing at p. 463. That being said, as Arnup J.A. observes, the more serious the offence the more likely it will be that the public interest will require registration of the conviction. [ 50 ] I am asked to follow the decision in D.W. in finding that a case such as the present one requires exceptional circumstances to be shown before the Court can be satisfied that it would not be contrary to the public interest to grant a discharge.

In D.W. , Woods J. acknowledged that in British Columbia the general approach to be taken in cases involving violence to children was articulated by the Court of Appeal for British Columbia in R. v. Grant , [1986] B.C.J. No. 384 (C.A.) : “[A]s a general rule in cases involving violence to children, the principles relating to general deterrence must apply and a period of incarceration will be imposed. Defenceless children must be protected by the courts” (para. 9, cited in D.W. at para. 59).

For reasons expressed at para. 60, Woods J. held that the general rule associated with Grant nevertheless requires judges to take a nuanced, fact-sensitive approach.

Woods J. held as follows at para. 61: Having regard to the jurisprudence overall, including that which invokes the general rule articulated in Grant, I recognise that in practice- while the courts continue to display an inclination to incarcerate those who commit violent offences against children in order to serve adequately the objectives of denunciation and deterrence-the cases also show that other sanctions, including conditional sentence orders and discharges, have been and continue to be imposed in such cases in appropriate circumstances. [ 51 ] In deciding whether or not the offence before the Court could be subject to a discharge Woods J. considered several decisions, and then relied upon the decisions in D.E.D , [2007] A.J.

No. 1531 (Q.B.) , and also R. v. A.G ., [2005] A.J. No. 1226 (Prov. Ct.) , to express the following at para. 86: I believe that, like the offender sentenced by Nemirsky P.C.J. in A.G ., and the offender sentenced by Rooke J. in D.E.D ., D.W. requires exceptional circumstances to be established before I can be satisfied that it would not be contrary to the public interest to discharge him

conditionally. But, for the reasons I have given above, I also believe that D.W. has been shown-largely through his prompt and diligentefforts to get to the root of the underlying problem of his having an almost unimaginably primitive understanding of child disciplinaryprocedures-to have proven himself to be worthy, exceptionally, of being sentenced by way of a conditional discharge for havingcommitted an offence that involved the use of violence against a child.

This, in other words, is one of those cases in which I believe thatthe general rule in Grant must yield in the face of unique circumstances. [52] I fully appreciate the reasoning behind the conclusion. I am cognizant of the direction of Parliament in s. 718.1 and ss. 718.02(a)(ii.1) and (iii) and I am also cognizant of the direction of the Court of Appeal for Ontario with respect to cases where a child is harmedby his or her caregiver.

But, I am also cognizant of the highly variable nature of the cases to which the above provisions can apply, andof the obligation of this Court to take into account all relevant considerations. It is well advised for this Court to bear in mind the generalrange of sentences that are available, but it is in my view unnecessary and not principled to approach the issue from a starting-pointanalysis of holding that discharges are not generally available in cases of excessive discipline and then requiring the offender to meet arequirement of exceptionality before granting the request.

Doing so runs the risk of turning the public interest, and denunciation anddeterrence into abstract concepts and of running afoul of other sentencing considerations, such as that in ss. 718.2(

d) and (e). In thissense, I agree with the caution expressed by Rooke J. in R. v. D.E.D. (commended by Woods J. at para. 72 of D.W.) that the “publicinterest” is not the same thing as “public concern” and that sentencing judges are called upon to look beyond denunciation and generaldeterrence.

I also accept a similar caution expressed in D.E.D. against placing too much weight upon the status of the offender as a policeofficer and against placing too little emphasis upon the impact that registering a conviction will have on an officer’s career (paras. 67-68,82-84, and 71-73, relied upon by Woods J. in J.R. at para. 73).

In my view, a principled approach ensures that the focus, start to finish,remains on a proper weighing of all of the necessary elements as they exist in the case. [53] I also commend the following passage from D.E.D. at paras. 79-80: The Sentencing Judge emphasized the general deterrence factor. In his opinion, it was important that the police in general be deterredfrom committing this kind of crime. As I noted earlier, the Sentencing Judge said "the corporate sense of responsibility to the communityin my view demands that Sergeant [D.E.D.]'s activity be denounced and a warning go to all police officers".

I agree, but believe that canbe very effectively (perhaps more effectively) accomplished by a conditional discharge with innovative conditions. In this case, I agree with the Appellant submissions (above) that being suspended from duty, subjected to an internal disciplinary hearing,investigated and charged criminally by your colleagues, pleading guilty and being sentenced are all factors which provide significantdenunciation and general deterrence to other police officers even if a discharge is the ultimate disposition.

Moreover, a conditionaldischarge with creative conditions can provide even further general deterrence to other police officers. [54] It is of considerable importance to seek meaningful ways to achieve the objectives of sentencing goals without impacting morethan necessarily the lives of the persons who appear before the Court. It is for this reason that specialized Courts have been created, suchas domestic violence, mental health, and Gladue courts. And it is (for obvious reasons) quite often the case that the impact upon theperson before the sentencing court is felt by the victim as well.

The appropriate use of ingenuity and creativity to achieve meaningfuldeterrence and denunciation is to be commended. It is consistent with the objectives and goals of sentencing and its ultimate purpose. Asthe Court of Appeal for Alberta held in R. v. Wallner, 1988 ABCA 308 , [1988] A.J.

No. 847 (Alta C.A.) at para. 8, as wasexpressly cited by Rooke J. at para. 78 of D.E.D.: The conditional discharge may represent the use of both the carrot and the stick: a threat and an incentive. [55] The same may well be said of the creative and ingenious use of such other criminal justice tools as diversion and in this respectwhile the values expressed in the K. (M.) decision, referred to earlier, may clearly be at odds with the decision in Canadian Foundationdecision, I agree with the holding that a “zero tolerance” approach toward all child discipline cases would work an injustice.

I wouldobserve in light of the tremendous impact that this case has had upon the family, including the two children, the views expressed at p. 27of the Law Reform Commission of Canada’s report Our Criminal Law (Ottawa: 1977): Criminal law operates at three different stages. At the law-making stage it denounces and prohibits certain actions. At the trial stage itcondemns in solemn ritual those who commit them. And at the punishment stage it penalizes the offenders. This, not mere deterrenceand rehabilitation, is what we get from the criminal law -- an indirect protection through bolstering our basic values.

But criminal law is not the only means of bolstering values. Nor is it necessarily always the best means. The fact is, criminal law is ablunt and costly instrument -- blunt because it cannot have the human sensitivity of institutions like the family, the school, the church orthe community, and costly since it imposes suffering, loss of liberty and great expense. So criminal law must be an instrument of last resort. It must be used as little as possible. The message must not be diluted by overkill --too many laws and offences and charges and trials and prison sentences.

Society's ultimate weapon must stay sheathed as long aspossible. The watchword is restraint -- restraint applying to the scope of criminal law, to the meaning of criminal guilt, to the use of thecriminal trial and to the criminal sentence. The passage was cited by Doherty J.A. for a three-member panel of the Court of Appeal for Ontario in R. v. McDougall, (ON CA), [1990] O.J. No. 2343 (C.A.), at para. 48, in supporting the view that restraint is to be used in the application of thecriminal law.

At para. 49, Doherty J.A. also cited the following passage from p. 59 of the Criminal Law Review Committee in TheCriminal Law in Canadian Society (Ottawa: Government of Canada, 1982): The criminal law should be employed to deal only with that conduct for which other means of social control are inadequate orinappropriate and in a manner which interferes with individual rights and freedoms only to the extent necessary for the attainment of itspurpose.

The conclusion reached at para. 50 is resonant: If restraint is the watchword in the general application of criminal law, it has particular significance in cases like this one: see R. v. D.,

[1984] A.C. 778, [1984] 2 All E.R. 449, [1984] 3 W.L.R. 186 (H.L.), at p. 806 A.C. The problems underlying these charges involve complex ongoing social relationships and the well-being of two children. There are other legal avenues available which can address the problems and concerns which gave rise to this prosecution.

Those other avenues often can more effectively deal with these situations than can the blunt broad axe of the criminal law. [ 56 ] Turning to the present case, I am in full agreement with the parties that it would not offend the public interest to impose a discharge. [ 57 ] In arriving at such a conclusion, I have taken into consideration the aggravating circumstances in this case including the age of the victim, of 8 or 9 years of age, and the operation of s. 718.01 and s. 718.2 (a)(ii.1) of the Criminal Code ; the fact that the defendant was the parent and was in a position of trust and the consequent operation of s. 718.2 (a)(iii) of the Criminal Code ; the fact that a belt was used in the assault and that J.R. was struck three times; the fact that P.R. was in a place of anger when he did so as evidenced by his demeanour; and the fact that other historical instances of excessive discipline have been admitted.

I also take into consideration that P.R. was a police officer, but I instruct myself that the weight to be placed on that factor must not be disproportionately high. [ 58 ] In arriving at such a conclusion, I have also taken into consideration the mitigating factors in this case. This includes the guilty plea and the character and general background of the defendant including the lack of any criminal record, the fact that P.R. is by all accounts an exemplary of his employment and community and the fact that P.R. is by all accounts a loving husband and father toward his children.

This also includes the fact that the behavior in question was disciplinary in nature, consistent with the cultural upbringing of the defendant, which was intended not to harm but rather correct misbehavior, and which in fact did not result in any physical injury to J.R. This also includes the pre-charge rehabilitation efforts of the defendant, in what was a historical offence dating back to 2010. I find it mitigating that P.R. of his own initiative confronted his upbringing in questioning the value of physical discipline.

I find it mitigating that before any intervention by the criminal justice system, P.R. along with K.R. replaced such disciplinary practice with other forms of discipline and, as a couple and a family, actively sought out the assistance of others in addressing difficult behaviours. I leave it as an open question whether the work done by the couple, prior to intervention, rehabilitated P.R. in this respect. I also find it mitigating that P.R. was cooperative with police and with the Society, and that he engaged in extensive rehabilitation efforts in response to the criminal charges.

I find it all the more mitigating given, as evidenced in the family reunification assessment of July 20, 2018, that black families struggle to access culturally appropriate services in Northern Ontario. I have accepted this to be the case, and yet I find P.R. to have approached the situation creatively by reaching out to the indigenous community to help in healing himself and his family. [ 59 ] Bearing all of the above circumstances in mind, I acknowledge that denunciation and deterrence are foremost considerations. I consider those considerations in light of the present case and I consider the public interest.

I specifically find that in the present case the public interest includes an interest to ensure that the sentence imposed does not operate in a way that will directly, or indirectly, occasion any further harm to the victim, J.R., or to his sister, A.R. I also find in the present case that the public interest includes an interest in ensuring that other sentencing goals and factors are also fairly considered including the principle of restraint.

I find in this regard that the public interest includes consideration of the fact that the defendant largely rehabilitated himself before the criminal investigation commenced. It includes consideration of the lengths he has gone to in demonstrating respect for the law. It includes the very high level of impact he has felt during the interim release process and the extremely unfortunate and traumatic impact that he and his family have experienced as a consequence to the intervention.

It includes the very real potential of the loss of employment to P.R. and the very high impact this would upon him, his family, his employer, and the community as its spokesperson in various engagements.

The latter include his many contributions including to the wellbeing of youth in several capacities. [ 60 ] I cannot find in all of the circumstances that any result other than a discharge would be an appropriate disposition, saving for diversion which is not an option that I understand was made available by the Crown. [ 61 ] In reaching this conclusion I would note that I have considered the cases provided by the parties including D.W . and the decisions in Ontario of R. v. B.B ., 2014 ONCJ 379 (C.J.), and R. v. F.B ., [2018] O.J. No. 1943 (C.J.) , as well as many of the decisions referred to in those cases.

In view of the joint submission and in all of the circumstances, I do not find it necessary to engage in an extensive factual comparison of cases but simply express my agreement that the cases support the granting of an absolute discharge. The public interest is not offended in the present case. Again, quite the contrary the public interest cries out for such a result. [ 62 ] I agree that there is no need for any probation order.

As the family counsellor expresses (Exhibit 1, Tab 6): “K.R. and [P.R.] have the tools to provide guidance, wisdom and practical advice for their children what will assist them to prosper in the future”. The rehabilitation has been completed in spades and the remaining healing is not owing to the actions of the defendant.

Part 4 – Disposition [ 63 ] I have granted the joint request and imposed an absolute discharge. In view of the decision of the Supreme Court of Canada in R. v. Boudreau , 2018 SCC 58 (S.C.C.), I have not imposed any victim fine surcharge. Released: February 12, 2019 Justice Pieter Joubert