R. v. M.C.A. Date:, 2014 BCPC 331

Citation: R. v. M.C.A. Date: 20141112 2014 BCPC 0331 File No: 206442-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M. C. A. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.K. MACGREGOR Counsel for the Crown: C. Proctor Counsel for the Defendant: P. Evans Place of Hearing: Surrey , B.C. Date of Hearing: October 31, 2014 Date of Judgment: November 12, 2014

[ 1 ] THE COURT : This incident is in the course of a contested matrimonial issue with a number of issues being questioned, one of which was the occupation of the house; who was going to be the parent who would leave and who would be the parent who would stay with the children. With that background, before this incident occurred there was obviously a high degree of stress between the adults, probably picked up by the children, considering what was happening in the home. [ 2 ] On the evening of July 20th, 2014, both parties gave their versions of their autistic son N.'s behaviours.

N., who has significant problems, is generally dealt with in a disciplinary manner by time-outs or calming behaviours, but that restraint, as a last resort, is sometimes used as part of the discipline. That is the consistent evidence of both parents and of the nanny, Ms. R. (phonetic). [ 3 ] For whatever reason, these two young boys, N. (aged nine) and his younger brother A. (aged seven), were misbehaving at the dinner table, and at some point the youngest boy went upstairs and told on his older brother, N., to his father. In any event, his father, Mr.

A., came down to join the family at dinner, witnessed in the kitchen N. pound his younger brother, A., strongly on the top of his head. It was a forceful blow, such that the younger boy burst out crying and cried more than he had ever been seen, apparently, from his father's evidence. [ 4 ] At that point, both parents wished to have some consequence for N.’s striking his brother. Mr. A. wished to talk to him, asked N. to come to him and talk to him about his behaviour. N. threw food at his father, then began running around the kitchen table with N. on one side and his father on the other, and then back and forth.

Mrs. A. was also in the vicinity near the table. Mr. A. finally got a hold of N. and moved him a few steps over to the area of the sofa. As he came around the corner of the sofa, Mr. A. held N. by both his wrists in front. N. had been flailing before, that so, he held his wrists and arms, essentially his arms by the wrists in order to control him. [ 5 ] Mrs. A. agrees that N. was sat down on the couch. Mrs. A. says that the father was on top of N. Mr. A. says no, he had his knee against N.'s legs because he was still kicking and it was simply to control him.

N. was still flailing and quite strong as his father held him by the wrists, and a struggle occurred in that position. [ 6 ] Mrs. A. turned on her cell phone with the audio function, not the video function, at the point when N. was sitting on the sofa with his wrists being restrained by his father, and flailing. The audio, not the video was from that point forward. She did not explain why she had her cell phone in her hand. This audio was heard in evidence several times, in order to hear the words, often distorted by static. Her evidence was that Mr.

A. had, in the course of the struggle, slapped or caused N.'s own hands to slap himself on the face several times by Mr. A. holding N.'s hand or by Mr. A.'s own hand. Her evidence is that N. was struck approximately ten times in the face. While listening to it she could hear the slaps, although such were not heard by Crown or defence, including the Court. [ 7 ] Mr. A.'s evidence is that when he first held N.'s hands, and trying to restrain N.'s legs, N. was completely out of control. He had previously kicked his father in the leg and struck him, and would not calm down when asked to do so.

The audio does display Mr. A.'s voice as saying, "This is your last chance, and to calm down”, when N. was being held firmly. Mr. A. says at no time did he strike or did he intend to strike or hurt his son. His intention throughout was to restrain N. who was behaving out of control. He gave the explanation which is reasonable, although it was a guess, that what would appear to be red marks or a scratch mark on the side of N.'s face as shown in the photographs, was possibly when N.'s arms were flailing, his own nails could have scratched himself, but at no time did Mr.

A. strike him. [ 8 ] I have had the benefit of listening to all of the witnesses, including the timing with respect to Mrs. A. deleting items from her cell phone on July 30th of 2014. The evidence of the nanny: Ms. R. agreed that N., almost ten, is a very strong boy, who has hit, kicked and bitten her in the past. She has also held his wrists to restrain him. He is now stronger than she is. [ 9 ] In all the circumstances, I must say that I prefer the evidence of Mr. A. I accept the frailties in Mrs. A.'s evidence, and the context of this particular incident with the matrimonial conflict in the background.

While Mrs. A. may believe that her version is correct, given her manner of giving evidence, her evasive answers to questions by the Crown and in cross-examination, and her actions in turning on an audio but not a video representation. She had a motive to bring this complaint, that is, to remove her husband from the home. She was clearly not concerned that evening about the safety of her children, including N., as she did not attempt at any time to call the police that day. [ 10 ] The following day she took the children to her place of business in the morning and then, as was usual, Mr.

A. picked up the children at her request and with her blessing to take the children home. Later, while she was alone at her place of business, Mrs. A. phoned the police about what she says were the events of the previous evening. So the timing of this is in question in the sense that she was not truly concerned for the safety of her children. Mr. A. and Mrs. A. were home at the evening later that day when the police attended. Mr.

A. was arrested and removed from the residence, with sons N. and A. outside asking the police officer, “Why are you taking our daddy?” [ 11 ] Applying W.D. as I must, I do accept the version given by Mr. A. and I must acquit him of the charge of assault on his son N.A. It was an unfortunate incident on all sides, and with the unfortunate consequence that Mr. A., because of the protective conditions which are normal in these sorts of cases, have resulted in him not being able to see N. or either of his children, since the date of the incident. You are acquitted, Mr.

A., of this offence and are free to go. (REASONS FOR JUDGMENT CONCLUDED)