Regina v. J. R. L.. Date:, 2013 BCPC 350

Citation: Regina v. J. R. L.. Date: 20131205 2013 BCPC 0350 File No: 195102-2 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J. R. L. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Crown: B. Lane Counsel for the Defendant: D. Gable Place of Hearing: Surrey , B.C. Dates of Hearing: October 9 & 10, 2013 Date of Judgment: December 5, 2013 [ 1 ] It is alleged that JRL, between the 3 rd day of May, 2012, and the 10 th day of May, 2012, inclusive, at or near Langley, in the

Province of British Columbia, did commit assault of another person JL, contrary to

Section 266 of the Criminal Code of Canada . JRL has entered a plea of not guilty. [ 2 ] The Court heard from the child, JL, who testified that he does sometimes make bad choices and that when he makes bad choices, his father (the accused) will pull down his pants and spank him. He described the allegation that on his way home from school in May 2012; he kicked a toy car that was at the front of his father’s home, moving the toy car from the sidewalk to the grass. The toy car belonged to his step-brother.

The step-brother told the father who then asked JL why he kicked the toy car and JL said that he told his father that he did not know why he did it and that his father hit him and continued to hit him on his upper left thigh, with each occurrence his father asking him why he did it and each time when JL said “I don’t know”, his father would hit him on the upper left area of his thigh. This occurred four times in a row.

He then told his father why he kicked the toy car, at which point the father pulled down both JL’s pants and underwear and hit him, again with the father asking “Why did you do that?” and the child replied, “It was in my way”. JL testified that the repeated spanking left a mark on his left thigh. JL testified that the series of spankings occurred in the living room of the father’s home and that his step-siblings were in another room colouring. JL stayed at the home of the father.

JL testified that when he returned to his mother’s home, his mother saw the bruises on his leg when he was pulling down his pants to have a bath and that he told his mother that the marks were from when “it might have been when Daddy hit me”. JL was very firm in his testimony and unchallenged on cross that his father has “spanked him lots of other times” and when pressed as to the truthfulness of his statements that the father repeatedly spanked him as alleged, he was firm that indeed it did occur. [ 3 ] On cross-examination, JL told the Court that “bad choices” are when he pushes people or being mean to people.

The allegations occurred when JL was in kindergarten. JL acknowledged that he knows what it means to tell a lie and that he has told lies in the past and that lies are bad choices. JL testified that when his brothers and sisters make bad choices, his father does not spank them, that it is only himself who is spanked by his father. When pressed further, JL testified that if he makes a “bad choice” at school, his step- siblings will go home to tell his father or when he goes to his father’s home, his father asks him if he has had a good day at school.

JL acknowledged to having bad school days and that they “maybe” have been bad because he makes “bad choices”. He testified that when his mother asked him that night in the bathroom about the bruises, he acknowledged that he told her that it “might” be from being pushed on the rocks but also that it was possibly from when his father hit him. JL testified that when the father spanked him, his father did not tell him that he should not tell lies, but instead tells him that he makes “bad choices”. [ 4 ] The Court heard from the mother, EL, who is JL’s mother. JL is currently seven years of age.

Identification of the accused was made in Court. The mother and the father are separated and in 2012, the parenting time between the parties for JL was 50–50 of a Wednesday to a Saturday rotation. She testified that from May 3 – 10, 2012, JL was spending parenting time with his father. JL went to his father’s home without any bruising or marks, she knows that because she typically dresses JL and gets him ready for bed and for his day. On the Wednesday evening when JL had returned to her home, JL was in the bathroom with his mother getting ready for bed.

He took off his clothes and she testified that she saw red marks on his thighs and below his buttocks. She asked JL how it had occurred and he told her that he did not know how, but then told her that he “thought” that it was when he fell at school or was pushed. She took photographs immediately. The next morning she looked closer and JL’s legs had broken blood vessels and on the upper front and back portion of his legs, she testified, it “looked like a handprint” and “finger marks”. Exhibit 1 in these proceedings are the photographs taken by the mother.

That next morning she spoke to JL once again, knowing that JL was in trouble for taking a fellow student’s sunglasses at school, however, she had not told JL that she knew, so she asked JL what was his punishment when he was at his father’s home. JL told her that his father pulled down his pants and underwear and spanked him repeatedly and did so each time the child told him “I don’t know”. JL ate breakfast with his mother. The mother went to her mother-in-law that morning with the disclosure and showed her the photographs.

Thereafter, the mother went to JL’s school and spoke with the school principal, showed him the photographs, who thereafter contacted both the police and Ministry of Children and Family Services. The mother provided a statement to the police on May 10, 2012, and thereafter, the following day, JL was interviewed by the RCMP with a social worker present. The mother did not tell JL why he was at the police station. The child was photographed by the RCMP, which photographs form Exhibit 2 in these proceedings. The mother denied that JL bruises easily.

At the disclosure to her, she said that JL was upset, hurt and sad and told her that the father kept hitting him repeatedly and that he did not know what to tell his father. [ 5 ] On cross examination, the mother acknowledged that there is a Custody Order in place. The mother denied that JL had any bruising on him prior to departing her home to have his access time with the father; she acknowledged that JL is active and fidgety.

When asked about the statement that she provided to the police, she stated that she did tell the police that JL had told her that he may have fallen on some rocks, that the child has lied at both home and school, that yes, a child can exaggerate, that she was adamant when pressed on cross that some of the marks on JL were bruises, red marks and broken blood vessels which were above his knees and below his buttocks. She expressed concern that she simply did not know what to do when she saw the red marks and bruises on JL. [ 6 ] The Court heard testimony from RCMP Sgt.

Deverinchuk, who has been with the RCMP as a police officer the past 23 years and is currently posted to Forensics at the Langley, British Columbia, detachment. In May 2012 she was asked by officers to photograph the injuries sustained by JL and did so, which is Exhibit 2 in these proceedings.

In Exhibit 2, Photograph 3, she testified on the right leg of JL shows red lines that are parallel to which she testified are “almost the outline of a right hand”; Photograph 4 marked off by scale the red lines and she testified that the photographs were sent off to the RCMP digital printing lab in Ottawa, Ontario, to be properly calibrated. [ 7 ] On cross examination, Sgt.

Deverinchuk was not aware if the child had any pre existing conditions on his skin, that she is not a trained expert on medical bruising and marks, and that Exhibit 2, Photograph 5, shows discolouration on the back left of the leg of JL. [ 8 ] The Court heard from the father, JRL (the accused), who is currently 34 years of age and has five children, from different relationships. He acknowledged to striking JL. He described JL as being bright, well mannered, a child who struggles with social elements, and who has problems lying and stealing.

The child has not been formally assessed and is currently in an individual behavioural programme. Prior to May 2012, the access time between the parties for JL was equal time with a seven day rotating

schedule that had been in place since 2009. In May 2012, he testified that JL’s teacher had told him that JL had stolen a peer’s sunglasses, that they had been found in JL’s backpack and that when confronted at school, JL had lied about the theft. In May 2012, JL returned home from school, the father’s other son came to tell him that JL had kicked his toy, so the father spoke to JL in the house about kicking the toy and JL told him that the toy was in his way, so the father told him not to kick the toy. Thereafter, knowing about the

theft of the sunglasses from the teacher, the father asked JL about the sunglasses and JL told him that he did not know anything about it,the father asked JL if he took the sunglasses to which JL replied “no”. The father said that JL was not forthcoming and his intent was tosearch for the truth. The father testified that he told the child, “I am going to give you a spanking” and he proceeded to spank JL “two orthree times” and repeated that he told JL specifically that he was going to spank him. The father said that “eventually” JL told the truth.

He spanked JL repeatedly to correct JL’s behaviour and to educate him on making right choices. Regarding Exhibit 2, Photograph 5, thefather testified that the child has some Asian heritage and that there is what is referred to as Mongolian spots on the child which arepatchy areas of discolouration. When asked about Exhibit 2, Photograph 3, which is the right leg of JL, the father was unable to explainthe red markings on the child and acknowledged that he had not observed any red marks on JL the day prior to the spanking.

In terms ofhis parenting, the father explained that he has discussed with JL the importance of telling the truth, to respect one another’s personalpossessions and to make better choices. [9] On cross examination, the father testified that he has taken counselling through the Ministry, that his home has been monitoredand that he has had supervised visits with JL through the Ministry and acknowledged that the Ministry expressed concern about thesafety of the children, including JL.

The father denied ever inflicting physical discipline on any of his other children and that he did soonly on JL to “correct and educate his behaviour”. He denied disciplining his other children in the similar manner or spanking as he didto JL. When pressed on cross examination, the father stated that he denied to revoking any privileges of JL, denied ever attempting atime out with JL rather than repeatedly spanking JL. He stated that he had a conversation with JL but that JL kept telling him “I don’tknow”.

He denied that he kept asking JL to tell the truth, he denied being frustrated, he denied being angry with JL and stated that hesimply “informed” JL to tell the truth or that he would spank him. He reiterated that he repeatedly spanked JL “two or three times” andwhen asked if he spanked JL hard, the father’s testimony was a series of responses which included,, “I spanked him”, “I’m not sure how Iwould answer it”, “I don’t remember the hardness of my spank”.

Thereafter when asked what he defined as a “reasonable spank” interms of force, his answer was a series of responses in succession to one another that quickly varied and concluded in a term of“reasonable”, however, Exhibit 2 shows clear markings remaining on the child. The father acknowledged that when he spanks JL hepulls down his pants, but denied doing so in order that the spank would hurt more on bare skin and when pressed as to why he pullsdown the pants of JL to spank him, he said simply because “it’s a spanking” and that is how he does it.

When pressed further, Exhibit 2,Photograph 3, if the marks on JL were from the spanking, the father again responded in a series of answers that shifted from initially thered marks on the child were “possibly” to him repeatedly spanking JL to “I’m not sure”. However, the father did acknowledge that thephotograph of the red marks did indeed depict the physical area where he repeatedly spanked JL and that he also spanked JL on bothsides of his legs because he did not wish to focus his force of the spankings on one isolated area.

The father acknowledged that in May2012, JL had been having a difficult time throughout the school year in stealing personal items such as a toy, sunglasses and kicking thetoy. The father stated that he had tried other disciplinary techniques on JL in the past, but not on that day and acknowledged that herepeatedly spanked JL and no other measures were taken prior to the spanking.

When further pressed by Crown, the father, when he wasagain shown Exhibit 2, Photograph 3, said it was “possible” where he hit JL and that it was possible his hit to JL in that area left a markon the child. [10] Defence Counsel respectfully submits that while

Section 266 of the Criminal Code is an assault for any application of forcewithout consent, however,

Section 43 of the Criminal Code permits force to a child depending on the circumstances. Parenting a child isa daunting task; however, the State will only intervene when necessary. Defence Counsel submits that while the father acknowledged torepeatedly spanking JL, he did so for corrective purposes and that the strikes to JL were not excessive, and draws to the attention of theCourt that the photographs exhibited are not to be relied upon for forensic evidence as to the degree of force that the father inflicted uponJL.

The spanking on a child must be more than transitory and trifling as to both the injury and to the effect upon the child and states thatthe child never complained about the spanking. [11] Crown Counsel respectfully submits that the child testified that he had been spanked by the father four times and that the fathertestified that he had spanked JL two or three times, which the Court should conclude is reliable and corroborating evidence. JL as ayoung child gave a clean and pure version of the series of events.

The exhibited photographs are telling because there is no basis for theremaining red marks on the child, that there is what appears to be the outline of a hand on the child’s leg to which was corroborated bythe father in his own testimony acknowledging that is where he hit JL with an open hand. This was more than a transitory and trifling actupon JL. [12] The leading case addressing spanking is Canadian Foundation for Children, Youth and the Law v Canada (Attorney General),2004 SCC 4 , [2004] 1 SCR 76, (hereinafter referred to as “CFCYL”) which addresses

Section 43 of the Criminal Code, whichstates: Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil orchild, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances. [13] This is an objective test and the force applied cannot exceed what is reasonable in the circumstances and must consider thecircumstances in each fact pattern. Only minor corrective force of a transitory and trifling nature is immune from criminal application.

While historically spanking was perhaps a standard and everyday accepted community value in Canada in many children’s lives andremains so today in some cultures worldwide, Regina v Baptiste (1980) (ON CJ), 61 CCC (2d) 438 (Ont Prov Ct), theCourt must be mindful of those Canadian values today. [14] CFCYL (supra), at Paragraph 24, defines that the application of force must be intended for educative or corrective purposes andthat any outbursts of anger or frustration against a child are not permissible, including that “it admits into its sphere of immunity onlysober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolicdisapproval of his or her behaviour.

The purpose of the force must always be the education or discipline of the child” (Paragraph 24). Inconsidering the corrective nature of the alleged behaviour, it may include “restraining, controlling or expressing disapproval of the actualbehaviour of a child” as set out in Regina v MA 2011 ONCJ 91 at Paragraph 14. For a Court to consider that force may be corrective,there must be some behaviour on the part of the child that requires correction.

In Regina v CG, [2009] AJ No. 246 (Alberta ProvincialCourt), a mother warned a child that if she continued the same behaviour the child would be hit and the Court applied

Section 43 of theCriminal Code, however in Regina v CMTU 2006 BCPC 541,

Section 43 was not permitted because the child had endeavoured toexplain the situation at hand. Of particular note, in Regina v JDB 2004 AJ No. 815 (Alberta), at Paragraph 24, the Court noted that the

child had already been disciplined by being given a time out to sit in a corner and when that failed, the child was spanked and thus the Court allowed the spanking to avoid any criminal application because it was “...done for corrective purposes, as a last resort and was not done out of anger, maliciousness or revenge.” [ 15 ] In the application of the matter before me, the stealing of the sunglasses by JL and/or the kicking of the toy is a behaviour that requires to be corrected, particularly of note by both the testimony of the mother and the father that JL had historically had struggles with stealing items.

However, I am not satisfied nor find the testimony of the father truthful nor credible that, in repeatedly spanking JL over his bare skin on two to three consecutive times in one spank after another, was not done out of anger or frustration. I reject such outright. The first and only reaction taken by the father was to pull down the pants of JL and spank him.

There were no other steps taken by the father, for example, to talk to JL, to give him a time out or to take away privileges, but instead the father immediately resorted to demanding that JL tell him the truth and that not one, but two and possibly three, spanks were inflected on JL and that those spanks were done on his bare skin by the purposeful pulling down his pants.

There is nothing to substantiate the application of force by the father that is trifling, transitory or corrective in its nature and I am satisfied that the evidence before me is that the repeated spanking by the father with an open hand, on the bare skin of JL and without any alternative corrective measures being utilized, was done to humiliate and harm the child. [ 16 ] More so troubling is that Exhibits 1 and 2 show very clearly red marks remaining on the child, both hours and even two days later.

In Regina v CSO, [2012] BCJ No. 2280 wherein marks were left on a child 12 hours after the fact, at Paragraph 31, the court stated: “there should have been no marks if a proper corrective spank occurred.” In the matter before me, when shown Exhibit 2, the father acknowledged that the red marks on the photographs accurately reflected the physical areas of JL where he spanked the child on his bare skin and with an open hand. I am satisfied that both the duration and amount of force used by the father take it out of the exception of

Section 43 of the Criminal Code . Exhibit 2 only depicts one photograph that is distinctive enough to corroborate the father’s evidence of it being what he called Mongolian spots, however, the balance of the exhibited photographs of other parts of JL’s legs are a very different red marks on the child’s legs. I am satisfied in the matter before me that the Crown has proven the requisite elements beyond a reasonable doubt that

Section 43 of the Criminal Code does not give rise here. [ 17 ] The manner of spanking done on the child was not trifling, not reasonable or corrective. The father went in all essence, from zero to sixty seconds, and to say that he was not frustrated is simply not supported by the physical photographs or the evidence of the parties, and particularly JL who was pure in his testimony.

The father did not sit the child down to talk, the father did not rely upon or even use any other measures, such as a revoking of privileges or a time out that are deemed reasonable and corrective in its nature, and what is aggravating is that the father just did not merely spank the child, but did so on at least two and possibly up to four times and did so all on the bare skin of the child. I reject that simply because JL did not complain that harm was not inflicted upon this child. The exhibited photographs speak for themselves.

I also accept the testimony of JL that it is only he who is spanked by the father and that none of his step-siblings receive the same form of discipline and application of spanking, which I conclude then supports that the father is aware of other more reasonable corrective measures that were available to him with JL, but simply chose not to utilize any such measures. [ 18 ] The repeated spanking on the bare skin of JL was not corrective; it was not trifling and was done to instil both physical and psychological harm to the child.

The actions of the father upon JL were outside the bounds of what is reasonable based on an objective standard. While the theft of the sunglasses and the kicking of a step-sibling’s toy require a corrective measure by an objective standard, I am not satisfied that the father’s actions were reasonable, trifling or corrective when the application of the evidence is considered as a whole. Children are entitled to be safe and in CFCYL ( supra ), at paragraphs 58 and 59, the Supreme Court of Canada stated: Children need to be protected from abusive treatment.

They are vulnerable members of Canadian society and Parliament and the Executive act admirably when they shield children from psychological and physical harm. In so acting, the government responds to the critical need for all children for a safe environment. Yet this is not the only need of children. Children also depend on parents and teachers for guidance and discipline, to protect them from harm and to promote their general development within society. A stable and secure family and school setting are essential to this growth process.

Section 43 is Parliament’s attempt to accommodate both of these needs. It provides parents and teachers with the ability to carry out the reasonable education of the child without the threat of sanction by the criminal law. The criminal law will decisively condemn and punish force that harms children, is part of a pattern of abuse, or is simply the angry or frustrated imposition of violence against children...Section 43 is sensitive to the children’s need for a safe environment. But

Section 43 also ensures the criminal law will not be used where the force is part of a genuine effort to educate the child, poses no reasonable risk of harm that is more than transitory and trifling, and is reasonable under the circumstances. [ 19 ] The application of force by the father on JL was done so to harm and humiliate JL. To say that the father was not frustrated is simply rejected outright.

The evidence by both the child JL and the father supported one another that JL continued to give his father the same answer of “I don’t know” when asked, by both reasonable and objective standards, gives rise to frustration on the part of the father. The facts also support that the father purposefully pulled down the pants of the child to spank him repeatedly on bare skin.

The facts also support that no other alternative corrective measures were attempted by the father. [ 20 ] In CSO, supra , at paragraph 31, the Honourable Judge concluded on the facts before her that even if the measures taken were corrective in nature, the force used was excessive.

In the matter before me, while I find that the actions of JL necessitated corrective measures to be taken, the father did not endeavour to utilize any other measures and the application of the spanking repeatedly on JL and on the bare skin was more force than what is reasonable and left marks quite some time later, based on an objective standard. His actions were not trifling in nature. In paragraph 30 of CSO , supra , the Court in that matter noted, “There was nothing corrective about the measures he took.

He made no efforts to correct her verbally first or to reassure her....I reject his evidence entirely that he was simply attempting to correct her.” So, too, in the matter before me I am not convinced that the testimony of the father is to be accepted, that it was reasonable and in fact should be rejected. I am satisfied that the Crown has proven the matter beyond a reasonable doubt and that JRL is to be found guilty. The Honourable Judge K. Arthur-Leung

Provincial Court of British Columbia