R. v. B.B., 2014 ONCJ 379

Citation: R. v. B.B. , 2014 ONCJ 379 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN v. B.B. R E A S O N S F O R S E N T E N C E by the Honourable Justice N. S. Douglas, at Guelph, on the May 8th, 2014. Appearances: S. Hamilton - Counsel for the Crown B. Smart - Counsel for Mr. B.B. ONTARIO COURT OF JUSTICE (

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Reasons for Sentence , Douglas J. Page 1 Transcript Ordered: May 8, 2014. Transcript Completed: July 30, 2014. THURSDAY, MAY 8, 2014. R E A S O N S F O R S E N T E N C E Douglas, J. (Orally): This is R. v. B.B.. Mr. B.B. pled guilty to committing an assault on R.B., his, at the time, nine-year-old son, contrary to

section 266 of the Criminal Code of Canada . The facts briefly are that when Mr. B.B. learned that his son had called someone a “nigger” at school, Mr. B.B. was upset at that, spoke to his son about that type of language and then, as I understand it, at a parent/teacher’s meeting he learned that this type of conduct by his son was ongoing and that he had recently called someone else a “pussy”. Mr. B.B., angered, struck his son, with his open hand, twice on the buttocks and once on the back of his head and used a leather strap to strike him on the buttocks five times.

These strikes caused welts, bruising, and marks on the buttocks of the boy and they are all seen in Exhibit Number 1. He himself, realizing that he had gone too far, called Family and Children’s Services and they in turn notified the police.

Mr. B.B. always admitted that he had committed a crime; he pled guilty, and his counsel, Mr. Smart, has done a lot of homework on hisbehalf since then. We haven’t needed a pre-sentence report, but today, when the matter was spoken to by counsel on what the propersentence should be, a witness was called by Mr.

Smart and she is a lady known as Wendy Stewart, a First Nations Support Worker in thearea, and not only did she give evidence but she filed a report, and there was also filed a report regarding the Original Dispute ResolutionCircle Plan, and there is a letter from Charlene Ninham, from First Nation Counselling Service, along with two certificates ofparticipation in a positive parenting course that I will refer to in a few moments. There is also a Child Victim Impact Statement which I will refer to soon and a criminal record of the accused, which has three entries onit.

The first two in 1995 and 1996, in Stephenville, Newfoundland, that are not crimes of violence, but rather property crimes, and anassault conviction in June of 2007, here in Guelph, which was an assault on his spouse, for which he received a suspended sentence andprobation for two years. I want to refer to some law. The first thing I want to refer to

section 43 of the Criminal Code, not because it has been invoked here, butin order to get a context for what I am about to say.

Section 43 of the Criminal Code says as follows: Every parent is justified in usingforce by way of correction toward a child who is under his care “if the force does not exceed what is reasonable under thecircumstances”. The gravity of the participating event, that is, what the child did in order to be corrected or disciplined is not a relevantconsideration. Only minor corrective force of a transitory and trifling nature is exempt from criminal sanction.

As I understand the law, what is allowed in Canada is correction or discipline done, not in anger, or not in a quick response to somethingthat has happened, but in a caring, loving way, administered with a purpose of educating and correcting, not beating or causing injuries,not done in anger. There is also a case reported in our law and in our Criminal Code, called R. v. Baptiste and Baptiste, (ON CJ), [1980]61 C.C.C. (2nd) 438. It is an Ontario Provincial Court case that is at least interesting if not completely relevant.

It says, in determiningwhether the force used was reasonable under the circumstances, the court must consider the customs of a contemporary Canadiancommunity, not the customs of the accused’s former country where corporal punishment may have greater acceptance. It will becomeclear why I refer to that in a moment. I next wish to refer to

section 718 of the Criminal Code, which is the

section governing my duty today and every day that I sentencepeople; it is the provisions on the purposes and principles of sentencing. The fundamental purpose of sentencing objectives are found insection 718, I needn’t refer to those, but I need to refer to

section 718.01. - When a court imposes a sentence for an offence that involved the abuse of a person under theage of 18 years, it shall give primary consideration to the objective of denunciation and deterrence of such conduct. I next want to refer to

section 718.2(a)(ii.1): - evidence that the offender, in committing the offence, abused a person under the age ofeighteen years. And then

section 718.2(a)(iii): - evidence that the offender, in committing the offence, abused a position of trust orauthority in relation to the victim, are aggravating features, and a sentence, it says in the Code, should be increased or reduced to account for any relevant aggravating ormitigating circumstances. Then there is

section 718.2(

e) that says this:

(

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders.(emphasis added) There are a couple of cases cited under that

section that I wish to refer to. In R. v. Ipeelee, 2012 SCC 13 , [2012] 1 S.C.R. 433,the Supreme Court of Canada reaffirmed the special sentencing approach in respect of aboriginal offenders. This provision requires thecourt to use a different method of analysis in determining a fit sentence for aboriginal offenders.

Courts must take judicial notice of suchmatters as the history of colonialism, displacement, and residential school, and how that history continues to translate into lowereducational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and high levels ofincarcerations for aboriginal peoples. While these factors on their own do not necessarily justify a different sentence for an aboriginaloffender, they provide the requisite context for considering the case specific information.

Failing to take these circumstances intoaccount would violate the fundamental principle of sentencing that requires a sentence to be proportionate to the gravity of the offenceand the degree of the responsibility of the offender. In the case of R. v. Jacko, [2010] 256 C.C.C.(3d) p. 113, the Ontario Court of Appeal said: While as a general rule, the more serious and violent the offence, the less difference there will be on sentences imposed on aboriginal andnon-aboriginal offenders. In some such instances, the sentence of an aboriginal offender may be less than that imposed on a non-aboriginal offender.

Restorative justice may predominate in the sentencing of an aboriginal offender, even for a serious or violent crime. How does a court take judicial notice of the history of colonialism, displacement, and residential schools unless the court has read, beenadvised of, learned what that history entails. Judges are expected to know and take into account in these types of cases what exactly thatmeans.

In my understanding, having read quite a lot about the history of how aboriginal people have been treated in this country, it fallsinto place and dovetails with the description given by Ms Stewart in her letter, which is Exhibit Number 6 in this matter. Mr. B.B. is a member of the M[…] First Nation and the P[…] Indian Band. I read that: “Mr. B.B. grew up in his home town of P[…] Indian Band, vulnerable as any other Indian child to the impact of government policies totake the “Indian out of the child”.

Newfoundland/Labrador covers a vast area, and the half dozen residential schools on the island didnot have the capacity to reach all communities. Instead, many small villages such as P[…] Indian Band were subjected to the CatholicSchool’s Christian Mission to eradicate paganism and all its practices. The Catholic schools chose to do this through corporalpunishment. If you were a so-called “Native heathen”, the punishment was more frequent and severe, the belief being that Nativechildren were all born from the devil himself. Mr.

B.B. can easily recall how his neighbours stigmatized his family as “Jack-a-Tars", pejorative Newfoundland slang for a mixedFrench and M[…] First Nation person. He remembers how the intoxicated priests, well known for sexually abusing their charges, andthe nuns, threatened kids with the strap from the first day of school. Families hid their Native ancestry with good reason. Poverty wasrampant because Native peoples were not allowed to engage in any productive commerce.

To this day, Newfoundland’s Indigenouspeoples are still struggling to cope with the losses of their land, culture and tribal teachings/traditions.” I know that Ms Stewart does not mean to brand every priest, every nun, every Christian school with this type of despicable behaviour. Ido not accept that every Catholic Church’s Christian Mission should be tarred with the same brush as those who have abused theaboriginal children. Surely, there were priests and nuns and teachers who loved and helped all of the children under their care.

But it istrue, and I accept that many, if not all of the aboriginal children that were forced to go to residential schools or schools that practiced thesame mandate as residential schools, namely to eradicate from the aboriginal children their ties to their culture and to their heritage, andthat was a mistake in policy that I believe has now been the subject of debate and apologies by the highest officials in our land. We haverecognized that what the government did to aboriginal children was criminal.

I think that is what the Supreme Court of Canada andParliament mean when they say I must take that history into account when sentencing aboriginal offenders. Mr.

Hamilton for the Crown, properly, sincerely submits that this is a case that cries out for jail, using some of the sections of theCriminal Code that I have just referred to and it is obvious that the Crown attorney, in representing the people, is right and correct whenhe says that violence against children is the worst type of violence because they are vulnerable, they are under our care, they are ourmost precious natural resource, and everyone in the community has an interest in this case and in every case where a child is beaten orabused – it affects us all. That is why there is

section in the Code that makes it an aggravating feature to abuse a child.

Mr. Hamilton is right on the money when he points to the Victim Impact Statement and refers to this as a breach of trust. I have read many Victim Impact Statements and this one is one page with four pictures on it. The child is asked to draw four pictures to explain to people how this crime has impacted him. He draws a picture of a face that is his face and he writes under it, “Frightened and Terrified”, and he says to the Victim Services people that this thing was frightening; the angry tone of dad’s voice reminds me of what happened.

And then he draws a picture of a face and titles it “Scared”, and he says he’s scared for two reasons; it might happen again, but the second reason is I worry that I won’t be able to see my dad again. The next picture is a face that he titles, “Disappointed”. He says he’s disappointed that my dad did it and it was really hard. The last picture is a picture of a face that he entitles, “Embarrassed”. He says he was embarrassed that “there were marks when he did it and I had to have pictures of my butt taken and lots of people saw them”. I think anyone would be moved by that Victim Impact Statement.

So therefore, it is obvious that my job here has to balance competing interests and it is an understatement to say that this is a difficult balancing that I must do. The facts here show the aggravating features – violence against a child, breach of trust. It was a beating. It wasn’t a spanking. There is another aggravating feature that this accused has a criminal record. His last conviction, although some seven years ago, was of a crime of assault on a woman, and so one can easily say “ Amen” to the submission of Mr. Hamilton that this crime requires a period of custody. Then we get to the mitigating features: 1.

What must be said, I conclude that this is not an abusive man who has wrecked havoc on his son and has no interest in his son and is only a bad tempered, mean father. To the contrary, up until this point in time at least there is a good relationship between the two of them.

He has demonstrated for nine years that he is a caring father, that he is an involved father, that he takes his son to different events, that he provides for his son in a way that good fathers do, and I am impressed that he has, since the son’s birth, managed to put away $250 a month I am told, and that the R.E.S.P. account for his son’s future education now stand at $24,000. Not only that, but it was he who called the authorities. It was he who expressed immediate remorse. He did not try to hide behind

section 43 of the Criminal Code , he pled guilty at an early opportunity.

A plea of guilt is important in every criminal case, in some it’s not worth as much, but in cases where the witnesses would be difficult witnesses for everyone – that is the Crown, the defence, the court, then a plea of guilty means more, and this is one of those case where a nine-year-old child – I believe he is ten now, but at the time he was nine years of age, would have had to come into the courtroom with his father in the front row and go through again what happened to him, and I am experienced enough to know that sometimes those cases are difficult to prove by the Crown, and so this plea of guilt is worth quite a bit.

Not only has he done that, but he has immediately tried to redress what he did. He has sought outside help. He has, according to Exhibit Number 6, been learning for the last four months about the gentle ethics of his heritage; the effects of colonization on his people. He has proven to be a diligent student in embracing now his M[…] First Nation identity and its teachings. He has followed-up what any aboriginal practitioner recommended to him. He is committed to correcting the wrongs of his learned behaviours.

His “learned behaviours” referring to how corporal punishment was what he learned in the school he went to as a child. He participates in an intensive, one-on-one anger management program with Charlene Ninham, an independent First Nations, holistic mental health provider, registered with Health Canada, Indian and Northern Affairs. Ms Ninem is well known in her field, working with criminally charged individuals who do not understand the effects of residential schools. He has been in contact with Ms Ella Smith, who is an Aboriginal child youth mental health provider with the Ministry of Children and Youth.

He is trying to rebuild his relationship with his son. He is ready and willing to attend, and it has been set up for him, a men/boys drum group at the Healing of the Seven Generations in Kitchener. This helps Aboriginal men and boys understand their male roles and the non-violent cultural responsibilities to ensure the wellbeing of their communities.

He is engaged in the alternative Original Dispute Resolution Circle with the Guelph/Wellington Family and Children’s Services, along with his former partner - that is the woman, Sonya, who he has been convicted of assaulting, and his current wife and his son. The Circle was to clarify the child protection risks and to discuss his future access with his son. The current plan has set out some ground rules for Mr. B.B. and his former partner, and highly recommends parallel parenting to protect the child from further adult conflict. These Circles are going to be scheduled on a regular basis in the next few months.

He continues to work with Ms Stewart on a daily basis, even when he is out of the country he often calls for personal support. Ms Stewart has come to court today to testify that he is highly committed to doing whatever is asked of him so he may be allowed to reconnect with his son. He has also enrolled in a positive parenting course put on by the First Nations Counselling Service and has completed 50 hours in those courses. The three options on the table today for me are to agree with Mr. Hamilton and sentence him to jail; to agree with Mr.

Smart and not sentence him to jail, and there are two parts to that submission that Mr. Smart makes. He is asking not only that I suspend sentence and place his client on probation, he bravely goes one step further and asks for a conditional discharge so that the accused will not have a criminal conviction on his record for this assault on his child.

The response to that legally is; 1 . it would be a rare case that a person did not go to jail for a crime of violence against a child; 2 . it would be an even more rare case than that if no criminal conviction resulted, because crimes of violence against children by their very nature have the public interest involved in them and it would the rarest of cases that it would not be contrary to the public interest to grant a conditional discharge in a case like this. Mr.

Smart has invested a lot of time and energy and effort to convince the court that this is not only a rare case, but one of the rarest, deserving of a conditional discharge. I understand and cannot quarrel with both submissions made to me. Both were based on sound legal principles and expressed thoughtfully and sincerely. The main reason that Mr. Smart urges a conditional discharge, apart from all of the other matters that might qualify him, is his job.

From a childhood that this accused has survived, he has become a responsible respected adult with a lucrative job that requires him to be out of the country regularly. He is, as I understand it, involved, and I would like to be corrected if I don’t understand it correctly, involved in the oil industry. He has a management job with regard to that industry and he needs to travel to Saudi Arabia on a regular basis and he travels, I take it, extensively while he is doing his job outside of Saudi Arabia. MR. SMART: That’s correct Your Honour. THE COURT: Is that true? MR. SMART: Yes.

THE COURT: He was, before this incident, within sight of a pardon for the 2007 assault, because that would obviously be a troubling thing on his record for his travelling purposes, and now Mr. Smart says a conviction for this incident that happened some 7 years after the last one, would jeopardize his travel and therefore might mean the loss of his job. One thing that is impressive is that he has used this job, and he has used the resources from this job to better the future of his son, and I refer to the registered education plan that he has now built to $24,000.

I have often said, when the submission is made by counsel, if you convict my client he will lose his job; well maybe a law abiding citizen will get that job. So that submissions normally doesn’t impact my sentencing.

But in this specific case, as I weigh all of the things that I have just referred to, including that this boy wants his dad back, whom he loves, and that his dad has genuinely demonstrated remorse for what he has done and has done all he can to prove that he is sincere about making sure this will never reoccur, I conclude that this is the rarest of cases, and that this crime does not demand a criminal conviction, and I therefore, grant him a conditional discharge. I am going to impose some terms and when I am done I am going to turn, particularly to you Mr. Hamilton, to see if I have neglected

anything that might impact on the public interest here. MR. HAMILTON: Thank you. THE COURT: Firstly, within 24 hours he will report, in person, to a probation officer, because he is going to be under a probation order for 12 months by way of a conditional discharge, and he will report at all times as directed by the probation officer. Does he live in Kitchener Mr. Smart, does he want to report there or does he... MR. SMART: No, he lives in Guelph. THE COURT: In Guelph. MR. SMART: I can provide the... THE COURT: Okay. He must sign all releases necessary to permit the probation officer to monitor his compliance.

Now with regard to contact Mr. Hamilton, do you want me to just leave that blank or do you want me to include a term that – I mean it’s to everyone’s interest that what he is doing now... MR. HAMILTON: Continue. THE COURT: ...stays on course, right? MR. HAMILTON: Yes. THE COURT: Are there any concerns then that you have about a contact clause? MR. HAMILTON: I’m just going to have a word with my friend Your Honour, and... THE COURT: Sure. MR.

HAMILTON: The question to my friend was the involvement of CAS right now Your Honour, the involvement of Children and Family Services right now, that was the area that I wanted to discuss with my friend. THE COURT: So I don’t need to... MR. HAMILTON: I don’t believe you need to address it then. MR. SMART: So that we can put it on - Family and Children’s Services are still involved... THE COURT: Right. MR. SMART: ...and of course overseeing it. I thank my friend for that position. I just think it makes it easier if we leave that end of things directly with them who are involved on a day-to-day basis.

THE COURT: All right. I have thought about the weapons clause and because of his aboriginal status, I think I am going to just – there was – the only weapon here used was a leather strap and so I’m not going to impose any restriction on him there. MR. SMART: Thank you.

THE COURT: I am however, under Clause 11 Madam Clerk, ordering him to attend and actively participate in all assessment, counselling and rehabilitative programs, as directed by his probation officer and complete them to the satisfaction of his probation officer, and he will sign any release of information forms as will enable his probation officer to monitor his attendance and completion of any programs as directed. And he will keep the peace and be of good behaviour. Mr. Hamilton, would that cover it do you believe? MR. HAMILTON: I do believe so Your Honour. Thank you. THE COURT: Any questions Mr.

Smart about that. MR. SMART: No. Thank you Your Honour. THE COURT: I will waive the victim fine surcharge, I believe I can – can I not... COURTROOM CLERK: November... THE COURT: It’s after. The victim fine surcharge then - I will give him 6 months in which to pay. He will have some documents to sign before – I can do that right from here, if you just wait Mr. Smart, then those documents will be ready for his signature very soon. ******************

FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) CANADA EVIDENCE ACT I, Barbara E. McCrae, certify that this document is a true and accurate transcript from the recording of R. v. B.B., in the Ontario Court of Justice, held at 36 Wyndham Street, Guelph, Ontario, N1H 7J5, taken from Recording Number 4611-crtrm#2-20140508-091535-6- DOUGLAN, which has been certified in Form 1. July 25, 2014. (Original Signed) ____________________ Barbara McCrae, Certified Court Reporter 1