R. v. T.F. and T.A.F. Date:, 2016 BCPC 6

Citation: R. v. T.F. and T.A.F. Date: 20160119 2016 BCPC 0006 File No: 23125-1 Registry: Salmon Arm IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. T.F. and T.A.F. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E.F. DE WALLE Counsel for the Crown: Mariane Armstrong Counsel for the Defendant: Ian McTavish Place of Hearing: Salmon Arm , B.C. Date of Hearing: November 3, 2015

Date of Judgment: January 19, 2016 INTRODUCTION [ 1 ] The accused are charged with one count on Information 23125. [ 2 ] Count 1 is that on or about the 14 th day of February, 2015, at or near Salmon Arm, in the Province of British Columbia, did in committing an assault upon M.F., use a weapon or an imitation weapon, to wit: a mini hockey stick and a skipping rope, contrary to

Section 267 (

a) of the Criminal Code . [ 3 ] The accused both entered a plea of not guilty to the charge. [ 4 ] The accused are the parents of the complainant (the “daughter”). At the relevant time, the complainant was 14 years of age. On February 14, 2015 the accused T.F., (the “father”), struck his daughter on the buttocks with a plastic, mini hockey stick. On the same day the accused T.A.F., (the “mother”), also struck the daughter on her buttocks, using a skipping rope. The parents applied force to the complainant as a form of discipline. [ 5 ] The issues in this case are as follows: 1.

Did the child consent to the application of force to her body? 2. In the circumstances of this case does s. 34 of the Criminal Code provide a defence to the parents?

SUMMARY OF THE EVIDENCE [ 6 ] The Crown and Defence in this case prepared and filed “Admissions of Fact” that are marked as Exhibit 1. [ 7 ] The Admissions form part of the evidence in the trial. I will not recite the Admissions in full but will highlight the relevant portions. [ 8 ] On February 14, 2015, the parents were living at their home in Salmon Arm, British Columbia. Three of their four children lived with the parents in their home. The complainant was 14 years old and was born on [omitted for publication]. The two younger siblings were ages 13 and 11 years respectively.

The fourth child, an older sibling, was living in Alberta. [ 9 ] Approximately a week before February 14, 2015 the father took away the complainant’s cell phone because she had renewed her acquaintance with a young man, (“B.N.”). The daughter had been fond of B.N. but he broke off ties shortly after Christmas. The complainant was also required to give her parents her cell phone password that she willingly provided. [ 10 ] Although her phone had been taken the daughter was able to continue communicating with another friend using her iPad.

As a result, the father also demanded that the daughter hand over her iPad, which she did. On reviewing the text messages on the iPad the father discovered messages that referred to his daughter sending nude photographs of herself to “B.N.”. The daughter sent the nude pictures through a site called “Snapchat”. The daughter believed that the photos only lasted a few seconds after transmission using the “Snapchat” site.

The parents never actually saw the nude photos that were sent by their daughter in December 2014. [ 11 ] On February 14, 2015 the daughter was planning to attend a hockey game in Kamloops with her father. She was in the bathroom when her father confronted her about the nude photos. The father asked her why she sent the photos and said that she had not been raised to be like that. [ 12 ] The two continued to speak as they entered the garage of the home.

The accused father told his daughter that she needed to respect herself and not to throw herself at boys. [ 13 ] Once in the garage the daughter and her father discussed what form of punishment would be appropriate. The daughter understood that she would lose her electronics for a very long time; she would not be permitted to have guests over or go anywhere outside the house after school, and expected that she might be spanked. The daughter subsequently recalled that her father offered her two options: to be grounded for a really long time or to be spanked.

She opted for the spanking because she did not want to be grounded as that would affect her sports activities. [ 14 ] The child understood that her parent’s beliefs about discipline came from their adherence to the Bible which they believe advocates the use of the “rod” to spank, rather than hands, as hands are to be used as instruments of love. [ 15 ] The accused father picked up a plastic mini hockey stick (approximately 18 inches in length) and struck his daughter two or three times on the buttocks over top of her pyjama pants. The blows hurt.

The accused father told his daughter as he struck her that he was doing this because he loved her and not out of hate. He wanted her to understand what she had done. [ 16 ] Shortly after the father administered the spanking to his daughter the mother arrived at the home. The father told his wife about the nude photographs that the daughter had sent to a friend. The mother became upset and picked up a skipping rope that was in the garage. She hit her daughter two or three times on her buttocks with the skipping rope.

The mother said she was doing this because she loved her daughter. [ 17 ] On February 16, 2015 the child was at school when she told two of her girlfriends about the punishment she had received from her parents. She also showed her two friends her buttocks. One of the friends noticed that the child’s buttocks were red and swollen and covered in bruises which were purple and green. The other friend saw red and purple marks on the child’s buttocks.

[ 18 ] The school principal was informed of the incident and contacted the Ministry of Children and Families. The Ministry subsequently contacted the RCMP. [ 19 ] RCMP Constable Gill went to the home of the parents. He advised the father about the allegations. The father became upset and said that he spanked his daughter as punishment for things she should not be doing. [ 20 ] Dr. Heunis, a medical doctor in Salmon Arm, examined the daughter on February 23, 2015.

He noted that the daughter’s buttocks showed healed linear bruises to her right buttock. [ 21 ] The Crown also filed, as part of Exhibit 1, a series of photographs showing some markings, described as linear bruises, which are visible on the child’s right buttock. The photographs were taken by an RCMP officer. [ 22 ] The Crown closed its case on filing the Admissions of Fact. TESTIMONY OF THE ACCUSED FATHER [ 23 ] The accused father elected to testify in his own defence. [ 24 ] He is 45 years old and married to the mother. They have four children. He described their family as a Christian family.

The family attends church regularly. He is employed as an electrician and has no criminal record. [ 25 ] He testified that the hand is used for compassion and love, not for discipline. As a result of his belief he does not use his hand only when applying corporal punishment. In other words, the father believes that an object, not the hand, must be used when administering discipline. [ 26 ] He further testified that when he was young he received a lot of punishment from his parents that ranged from groundings to spankings. He said that his father would spank him with an orange plastic spoon.

He said that his mother would also spank him. [ 27 ] The father testified that he had no clue that the law does allow corporal punishment, and that he was breaking the law when he spanked his daughter. He stated that spanking should stop at some age depending on the maturity of the child. He stated, for example, that he would not spank a 23 year old child. He said that he does not enjoy spanking. [ 28 ] After finding out about the nude messages, the father testified he discussed the matter with his wife by telephone. They agreed that some form of discipline was required.

He and the daughter went to the garage of their home where they discussed forms of discipline. [ 29 ] He testified that his daughter was given a choice and that she consented to being spanked. He picked up a plastic mini hockey stick in the garage and hit his daughter on the buttocks. He said that the amount of force he used was not unreasonable in the circumstances. He also testified that he did not discuss with his daughter how many blows with the stick would be applied to her.

He stated that his daughter understood what she did was wrong and that she was remorseful. [ 30 ] The father also testified that although his daughter was remorseful there was still a need for punishment and some consequences. [ 31 ] The father said that his wife came into the garage. He talked to her about punishment and said that their daughter had chosen a spanking. He suggested to the mother that she should also spank their daughter. The daughter was not given another choice at that time.

The father testified he felt that because of the daughter’s actions the mother should also spank her so that the daughter would “get the gravity of her actions”. [ 32 ] The father described how the mother used the skipping rope to hit the daughter’s buttocks. He said the hits were hard enough to cause some discomfort. He was not able to say whether he or the mother used more force on the daughter. [ 33 ] In cross-examination the father was questioned about his reasons for administering a spanking. He said that the daughter did not have the option of saying no to the options presented to her.

He testified that his daughter’s act of texting nude pictures of herself was not

an act that could go unpunished. He further testified that his actions were not about pain, but just a form of discipline. [ 34 ] Credibility is not a significant issue in this case. The father testified in a straightforward manner. For the most part his evidence is consistent with the Statement of Admissions the Crown relies on in this case. [ 35 ] There is one troubling aspect to the father’s testimony and it relates to his denial that the daughter’s two friends saw the bruising they described seeing on February 16 at the school.

The accused was not present at the school when the friends looked at the injuries they described. There is no evidence that the father looked at the daughter’s buttocks at any time to see what impact the spanking administered by the mother and himself had on her body. [ 36 ] The testimony of the father regarding the injuries to his daughter suggests that he is downplaying the seriousness of the events that took place in the garage of his home. At the very least the father’s evidence leads me to conclude that he gave little thought, if any, to possible injuries suffered by his daughter. THE ISSUES 1.

Did the complainant consent to the application of force to her body? 2. In the circumstances of this case does s. 34 of the Criminal Code provide a defence to the charge under s. 267 (

a) of the Criminal Code ?

The Law Regarding Consent [37] I now turn to the first issue and the applicable law. [38] The parents in this case are charged pursuant to s. 267(

a) of the Criminal Code which reads as follows: 267. Every one who, in committing an assault, (

a) carries, uses or threatens to use a weapon or an imitation thereof, or (

b) causes bodily harm to the complainant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on

summaryconviction and liable to imprisonment for a term not exceeding eighteen months. [39] Assault is defined in s. 265 of the Criminal Code where it states: 265.

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe onreasonable grounds that he has, present ability to effect his purpose; or (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causingbodily harm and aggravated sexual assault.

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (

a) the application of force to the complainant or to a person other than the complainant; (

b) threats or fear of the application of force to the complainant or to a person other than the complainant; (

c) fraud; or (

d) the exercise of authority.

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, ajudge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instructthe jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence orabsence of reasonable grounds for that belief. [40] In R. v.

Stanley (1977), (BC CA), 36 C.C.C. (2nd) 216 (B.C.A.A.) the court held that to be effective theconsent to the assault must be freely given with appreciation of all the risks and not merely submission to an apparently inevitablesituation. [41] The Supreme Court of Canada also reviewed the scope and limitations of consent in the case of R. v. Jobidon, (SCC), [1991] 2 S.C.R. 714. In that case the accused was charged with manslaughter, through the offence of assault, following a fistfight.

The trial judge held that the victim’s consent to a “fair fight” negated the offence of assault. [42] In Jobidon, Sopinka J. dealt with the issue of consent in relation to s. 265 of the Code and stated: Rather, the policy reflected in s. 265 is to make the absence of consent a requirement in the definition of the offence but to restrictconsent to those intentional applications of force in respect of which there is a clear and effective consent by a victim who is free ofcoercion or misrepresentation.

Instead of reading the words “without the consent of another person” out of s. 265 I am of the opinionthat the intention of Parliament is respected by close scrutiny of the scope of consent to an assault. Instead of attempting to evaluate theutility of the activity the trial judge will scrutinize the consent to determine whether it applied to the very activity which is the subject ofthe charge. The more serious the assault the more difficult it should be to establish consent. [43] I must also take into account s. 265 (3)(

d) where it states: 265.

(3) For the purposes of this section, no consent is obtained where the complainant submits or does resist by reason of … (

d) the exercise of authority. ANALYSIS [44] Therefore, it is incumbent on me to carefully scrutinize the circumstances of the application of force by both accused on thechild. [45] The accused parents were clearly in a position of authority to the complainant. She was their daughter and, as a result, she was

dependent on their care and support. The complainant was 14 years old and lived at home with her parents. She was also dependent onher parents for her safety and well-being. In these circumstances, it is my view that the defence of consent is not available to theaccused. I would go further, and suggest, that only in rare circumstances, if ever, would the defence of consent be available to a parentwho has applied force to a child. [46] Furthermore, I find that although the complainant chose a “spanking” it was not a fully informed consent with an appreciationof all the consequences.

The complainant was not told how the discipline would be applied, what instrument would be used, and howmany blows would be used. The facts of this case are serious. The complainant was hit with a plastic mini hockey stick by one parentand a skipping rope by another parent. The daughter had obvious bruises on her body because of the discipline applied by the parents. [47] The decision in the Jobidon case makes it clear the more serious the assault, the more difficult it should be to establish consent.

The amount of force applied, the use of weapons, and the subsequent injuries are all aggravating circumstances that are relevant to thedetermination of the seriousness of the assault. I am not satisfied that the accused in this case have established consent as a defence totheir actions. [48] I find that the Crown has established a lack of consent in all the circumstances of this case. [49] I turn now to the second issue, namely, does

section 34 of the Code provide a defence in this case? The Law Regarding s. 34 of the Criminal Code [50] The Supreme Court of Canada in the case of Canadian Foundation for Children, Youth and the Law v. Canada (AttorneyGeneral), 2004 SCC 4 the Court found that

Section 43 of the Criminal Code does not offend s. 7 of the Charter. The Court setout a number of considerations that apply in determining where corrective force is reasonable. [51] In the Canadian Foundation case McLachlin C.J., writing for the majority of the Court referred to the purpose of s. 43 asfollows: 19 The purpose of s. 43 is to delineate a sphere of non-criminal conduct within the larger realm of common assault.

It must, as we haveseen, do this in a way that permits people to know when they are entering a zone of risk of criminal sanction and that avoids ad hocdiscretionary decision making by law enforcement officials. People must be able to assess when conduct approaches the boundaries ofthe sphere that s. 43 provides. [52] The Court then went on to set out two limitations to the requirement that the force be “by way of correction”.

The Court states: 24 First, the person applying the force must have intended it to be for educative or corrective purposes: Ogg-Moss, supra, at p. 193.Accordingly, s. 43 cannot exculpate outbursts of violence against a child motivated by anger or animated by frustration. It admits into itssphere of immunity only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, controlor express some symbolic disapproval of his or her behaviour.

The purpose of the force must always be the education or discipline of thechild: Ogg-Moss, supra, at p. 193. 25 Second, the child must be capable of benefiting from the correction. This requires the capacity to learn and the possibility ofsuccessful correction. Force against children under two cannot be corrective, since on the evidence they are incapable of understandingwhy they are hit (trial decision (2000), (ON SC), 49 O.R. (3d) 662, at para. 17). A child may also be incapable oflearning from the application of force because of disability or some other contextual factor.

In these cases, force will not be "corrective"and will not fall within the sphere of immunity provided by s. 43. 26 The second requirement of s. 43 is that the force be "reasonable under the circumstances". The Foundation argues that this term failsto sufficiently delineate the area of risk and constitutes an invitation to discretionary ad hoc law enforcement. It argues that policeofficers, prosecutors and judges too often assess the reasonableness of corrective force by reference to their personal experiences andbeliefs, rendering enforcement of s. 43 arbitrary and subjective.

In support, it points to the decision of the Manitoba Court of Appeal in R.v.

K. (M.) (1992), (MB CA), 74 C.C.C. (3d) 108, in which, at p. 109, O'Sullivan J.A. stated that "[t]he disciplineadministered to the boy in question in these proceedings [a kick to the rear] was mild indeed compared to the discipline I received in myhome". [53] It is necessary for this Court to consider all the circumstances under which the corrective force was used. [54] In further reviewing the ambit of s. 34 McLachlin C.J. goes on to say: 35 By contrast, it is improper to retrospectively focus on the gravity of a child's wrongdoing, which invites a punitive rather thancorrective focus.

"[T]he nature of the offence calling for correction", an additional factor suggested in R. v. Dupperon (1984), (SK CA), 16 C.C.C. (3d) 453 (Sask. C.A.), at p. 460, is thus not a relevant contextual consideration. The focus under s. 43 ison the correction of the child, not on the gravity of the precipitating event.

Obviously, force employed in the absence of any behaviourrequiring correction by definition cannot be corrective. 36 Determining what is "reasonable under the circumstances" in the case of child discipline is also assisted by social consensus andexpert evidence on what constitutes reasonable corrective discipline. The criminal law often uses the concept of reasonableness toaccommodate evolving mores and avoid successive "fine-tuning" amendments. It is implicit in this technique that current socialconsensus on what is reasonable may be considered.

It is wrong for caregivers or judges to apply their own subjective notions of what isreasonable; s. 43 demands an objective appraisal based on current learning and consensus. Substantial consensus, particularly whensupported by expert evidence, can provide guidance and reduce the danger of arbitrary, subjective decision making. 37 Based on the evidence currently before the Court, there are significant areas of agreement among the experts on both sides of theissue (trial decision, at para. 17). Corporal punishment of children under two years is harmful to them, and has no corrective value given

the cognitive limitations of children under two years of age. Corporal punishment of teenagers is harmful, because it can induceaggressive or antisocial behaviour. Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful.Corporal punishment which involves slaps or blows to the head is harmful. These types of punishment, we may conclude, will not bereasonable. … 40 When these considerations are taken together, a solid core of meaning emerges for "reasonable under the circumstances", sufficient toestablish a zone in which discipline risks criminal sanction. …. [55] In R. v.

B.S., (ON SC), [2008] O.J. 975 the court dealt with a situation where the father of a teenager usedforce as a corrective measure. The father took hold of his 15 year old daughter and placed her into his vehicle to take her home. Thetestimony of the daughter was that her father grabbed her and threw her into the truck. The daughter was planning to go to a party tomeet her boyfriend, who posed a threat to her. [56] In the B.S. case Robertson J. dealt with two issues, namely: 1. Can

section 43 apply to teenagers? 2. Was the child capable of benefitting from correction? [57] Robertson J. reviewed the Canadian Foundation case in detail and concluded although the Supreme Court of Canada did notabsolutely prohibit the correction of teens it does stand for the proposition that on the basis of current expert consensus s. 43 does notapply to corporal punishment of children under two or teenagers. [58] The court held in the B.S. case that the circumstances were exceptional. There were no physical injuries to the child. Noweapon was used and the child was not spanked or hit in any other manner.

Acting on his belief that the child was embarking on anunsafe path Robertson J. concluded that the force used by the father was “by way of correction”. The court allowed the appeal from afinding of guilt at the trial court. The facts in the B.S. case are clearly distinguishable from the facts in this case. [59] It is clear that the majority of the court in the Canadian Foundation case concluded that corporal punishment of teenagers,particularly with the use of objects or blows or slaps to the head, is prohibited because it does not have corrective value.

ANALYSIS [60] The question of the application of s. 34 in this case requires a careful examination of the relevant context in light of all thecircumstances of the case. [61] I find the relevant circumstances to be as follows: • At the relevant time the daughter was a teenager, 14 years of age.

Her 15th birthday was several months after this incident. • The daughter was living in the home of her parents. • The father discovered that his daughter had “sexted” nude pictures of herself to her boyfriend. • The father told his daughter as he struck her that he was doing this because he loved her and not out of hate. • The father took his daughter to the garage of the residence where he used a plastic mini hockey stick to strike his daughter severaltimes on her buttocks. • The mother used a skipping rope to strike her daughter several times on her buttocks. • The mother told her daughter that she was spanking her because she loved her. • Two days later the daughter’s two friends saw that her buttocks were red, swollen, and bruised. • On February 23rd a local doctor noted that the daughter’s right buttock showed healed linear bruises. [62] The first requirement of s. 34 is that the force be “by way of correction”.

The force must be intended for educative or correctivepurposes as prescribed by the majority in Canadian Foundation at paragraph 24 of the decision. [63] It is my finding that the force applied to the child was clearly not intended for educative or corrective purposes. The fathertestified that his purpose in spanking the daughter was for punishment. He was unable to articulate any other purpose for the spanking. [64] In this day and age any reasonable parent would be concerned about a teenager sending nude pictures of him or herself via a cellphone or any other electronic device.

The pitfalls and potential dangers of such activities are well reported. Such behaviours can lead tobullying and even suicide as a number of very high profile cases in the last few years have shown. To suggest that responding to suchacts by a teenaged daughter, (14 going on 15 years), by spanking her with an object would be educative or corrective is simply notbelievable or acceptable by any measure of current social consensus. [65] I would go further and say that the parent’s reaction in this case could not possibly be supported by expert evidence.

In theCanadian Foundation case the Supreme Court of Canada considered and detailed a number of studies and authorities on the subject ofchild discipline and concluded at paragraph 40:

40 … Generally, s. 43 exempts from criminal sanction only minor corrective force of a transitory and trifling nature. On the basis of current expert consensus, it does not apply to corporal punishment of children under two or teenagers. Degrading, inhuman or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the head is unreasonable. Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment.

Coupled with the requirement that the conduct be corrective, which rules out conduct stemming from the caregiver's frustration, loss of temper or abusive personality, a consistent picture emerges of the area covered by s. 43. It is wrong for law enforcement officers or judges to apply their own subjective views of what is "reasonable under the circumstances"; the test is objective. The question must be considered in context and in light of all the circumstances of the case.

The gravity of the precipitating event is not relevant. [ 66 ] The parents took no educative or corrective steps by seeking out expert help or any other assistance to discuss their daughter’s actions with her. Their actions were solely punitive and not corrective. In my view, the actions of the parents were also degrading. [ 67 ] The second requirement of s. 34 is determining what is “reasonable under the circumstances” in the case of child discipline. [ 68 ] The Canadian Foundation case says that corporal punishment of teenagers is harmful because it can induce aggressive or antisocial behaviour.

In addition, punishment using objects such as “rulers, or belts” is “physically and emotionally” harmful. This statement is made in the context of the first line in paragraph 37 of the decision that reads: Based on the evidence before the Court, there are significant areas of agreement among the experts on both sides of the issue. [ 69 ] Furthermore, in considering all of the circumstances in this case, I refer to the use of weapons, namely the plastic mini hockey stick and the skipping rope, in applying force to the complainant.

I also note that she suffered injuries that, in my view, were not of a transitory or trifling nature. The manner in which the parents used force and the injuries that resulted, lead me to conclude that the spanking in this case amounted to excessive corporal punishment. [ 70 ] The personal beliefs of the parents on the issue of child discipline, no matter how sincerely held, cannot be used contrary to the law set out in s. 34 of the Criminal Code and the principles set out by the Supreme Court of Canada in the Canadian Foundation case.

The Canadian Foundation case says that an “objective” rather than a “subjective” test must be applied when determining what discipline is reasonable in all the circumstances. [ 71 ] In conclusion, I find that the spankings were not applied for corrective purposes and were not reasonable in all the circumstances. The defence of s. 34 is not available to the parents in this case. [ 72 ] I find that the Crown has established the elements of the charge in this case beyond any reasonable doubt and I find both accused guilty as charged. THE HONOURABLE JUDGE E.F. DE WALLE