HER MAJESTY THE QUEEN v. W.(C.D.) RESTRICTION ON PUBLICATION: section 110 YCJA TRIAL DECISION BEFORE THE HONOURABLE JUDGE ANNE S. DERRICK, 2016 NSPC 31

IN THE YOUTH JUSTICE COURT OF NOVA SCOTIA R. v. W.(C.D.) 2016 NSPC 31 Date: May 16, 2016 Docket: 2960667, 2960668, 2960669 Registry: Halifax BETWEEN: HER MAJESTY THE QUEEN v. W.(C.D.) RESTRICTION ON PUBLICATION:

section 110 YCJA TRIAL DECISION BEFORE THE HONOURABLE JUDGE ANNE S. DERRICK HEARD: April 27 and May 4, 2016 DECISION: May 16, 2016 CHARGES: sections 266(

b) x 1; 145(3) x 2, Criminal Code COUNSEL: John Nisbet, for the Crown Rickcola Brinton, for W.(C.D.) By the Court: Introduction [ 1 ] On February 20, 2016 C hit R.B., a youth care worker at her group home. The police were called and she was charged with assault.

She was also charged with breaching the “keep the peace and be of good behaviour” condition of recognizances dated September 29 and November 18, 2015. [ 2 ] The facts are not significantly in issue in this case: the critical issue is whether the criminal law should concern itself with what C did. [ 3 ] C admitted in her testimony that she hit R.B. on the back with her fist. This amounts to an assault as it was an intentional application of force without R.B.’s consent. Although C provided an explanation for her actions, she did not suggest she acted in self- defence.

She says simply that her physical reaction to R.B. was trivial and she should be found not guilty on the basis of the defence of de minimis non curat lex . [ 4 ] For the reasons I am about to give, I have concluded the defence should not apply in this case. As I will be explaining, it is relevant that this is a Youth Criminal Justice Act (“ YCJA ”) case. I will add that once I have provided my reasons for rejecting C’s de minimis defence I intend to deal immediately with her sentencing. The Facts [ 5 ] The events that led to C being charged happened in the kitchen of the group home where she was living.

The preparation of a weekend morning brunch deteriorated into a confrontation between C, a volatile girl with mental health issues, and R.B.. C wanted some

bacon but she did not want the bacon R.B. had started to prepare. R.B. was firm in his resolve that C was not entitled to a fresh packageof bacon. In no time at all this led to C hitting R.B. on the back with her fist. [6] Before that happened, C had had a dispute in the kitchen with A.C., the other youth care worker on duty, over which pan should beused for the bacon. A.C. could see that C was starting to escalate and decided to remove herself.

In her evidence, C said she appreciatedA.C. leaving the kitchen rather than getting into a confrontation with her. [7] By her own admission, C has difficulty controlling her anger. Brunch preparation, even with A.C. gone, did not go well. C andR.B. got into an argument over the bacon. According to R.B., C was upset about how the package of bacon had been opened. C says itwas because R.B. had been handling the bacon; she did not want him touching the bacon she was going to be eating. [8] R.B. was not inclined to give in to C’s demands that a fresh package of bacon be substituted for the open one.

This would haveinvolved thawing a new package of bacon from the freezer which he regarded as wasteful. He wanted C to settle for the previouslyopened package. [9] C was as determined as R.B.. She managed to grab a new package of bacon from the freezer. R.B. snatched it back. [10] A.C., who had gone to the office, heard yelling and went back to the kitchen. She had an unobstructed view of C and R.B. arguing.Everyone agrees that C had got hold of another package of bacon and was trying to prevent R.B. from retrieving it. [11] C’s emotional state had escalated. R.B. reached for the bacon C was holding.

C put it up her shirt. I accept R.B.’s and A.C.’sevidence that when this happened, R.B. put his hands up and stepped back. And while there are some differences between R.B.’s and C’sdescriptions of the events, the important facts are not in dispute: • Even if R.B. touched C’s hand when reaching for the bacon, he did not touch C’s body; • R.B. did not try to retrieve the bacon from under C’s shirt.

He immediately turned away and had his back to her; • C hit R.B. with the end of her closed fist twice on his back; • R.B. was shocked but unhurt. [12] Testifying in her own defence, C acknowledged being triggered by the confrontation with R.B. over the bacon. She was feeling“angry, kind of annoyed” when she hit R.B..

She said it was “a natural reaction” for her to hit someone who crowds her personal space.She explained that her mental health issues include not being able to control her anger although she says: “A lot of people are trying tohelp me…I have been getting a lot better with it.” [13] C impressed me with her candour when she said: “I don’t think it was okay for me to hit him.” She also said: “I don’t think it wasokay that he was grabbing at the bacon.” She believes “none of this would have happened” if R.B. had simply left her alone to preparethe bacon she wanted to eat.

In her view of the situation at the time: “It’s my house so I should be able to eat as much bacon as I want.” [14] R.B. testified to being “extremely upset” that he had been hit over a dispute about bacon. He left the kitchen, went to the office andcalled the police. [15] There is no “zero tolerance” policy at the group home that obliges youth care workers to call the police after an incident with aresident. A.C. testified that it is up to the youth worker whether the police are called.

She acknowledged on cross-examination that thereare “situations like this” where the police are not contacted. [16] The call to the police led to C being charged. There is no evidence that extrajudicial sanctions in the nature of restorative justicepursuant to

section 10 of the Youth Criminal Justice Act were considered in this case. The Historic Origins of the De Minimis Defence [17] The defence of de minimis non curat lex – the law does not concern itself with trifles – has its origins in the sixteenth century. TheOntario Court of Appeal in R. v. Kubassek, (ON CA), [2004] O.J. No. 3483 noted that the first reported reference tothe principle is found in Taverner v. Dominion Cromwell (1594), 78 E.R. 601.

In Kubassek the Court also referred to “The Reward”, anEnglish case from 1818 that set out the purpose of the principle: …Where there are irregularities of very slight consequence, [the law] does not intend that the infliction of penalties should be inflexiblysevere.

If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it mightproperly be overlooked. (Kubassek, paragraph 19) The Availability of the De Minimis Defence in Canada [18] The Supreme Court of Canada has left open the question of whether the de minimis principle can be applied as a defence tocriminal culpability. (R. v. Hinchey, (SCC), [1996] S.C.J. No. 121, paragraph 69; R. v. Cuerrier, (SCC), [1998] S.C.J. No. 64, paragraph 21; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004SCC 4 , [2004] S.C.J.

No. 6, paragraph 44)

[19] In her dissenting judgment in Canadian Foundation for Children, Youth and the Law, Justice Arbour had the following to sayabout the de minimis defence: The Chief Justice is rightly unwilling to rely exclusively on prosecutorial discretion to weed out cases undeserving of prosecution andpunishment. The good judgment of prosecutors in eliminating trivial cases is necessary but not sufficient to the workings of the criminallaw. There must be legal protection against convictions for conduct undeserving of punishment. And indeed there is.

The judicial systemis not plagued by a multitude of insignificant prosecutions for conduct that merely meets the technical requirements of "a crime" (e.g.,theft of a penny) because prosecutorial discretion is effective and because the common law defence of de minimis non curat lex (the lawdoes not care for small or trifling matters) is available to judges. (paragraph 200) [20] Justice Arbour went on to note that the operation of the defence of de minimis “does not mean that the act is justified; it remainsunlawful, but on account of its triviality it goes unpunished.” (paragraph 203) She enumerated the justifications for maintaining such adefence: “(1) it reserves the application of the criminal law to serious misconduct; (2) it protects an accused from the stigma of a criminalconviction and from the imposition of severe penalties for relatively trivial conduct; and (3) it saves courts from being swamped by anenormous number of trivial cases…” (paragraph 204) The Application of the De Minimis Defence in Canada [21] Determining whether the de minimis defence should apply requires consideration of the nature of the conduct and the relevantsocietal values.

The Ontario Court of Appeal has recognized the role of de minimis in cases where “harmless conduct” by someone whohas “not really done anything wrong” does not deserve to be criminalized but observed that its application is limited to precluding “…thecriminalization of conduct for which there is no reasoned apprehension or harm to any legitimate personal or social interest.” (R. v.Carson, [2004] O.J. No. 1530, paragraph 24) [22] The societal interest in criminalizing assaultive behaviour has limited the application of de minimis in assault cases.

The defencehas not been well-received in domestic assault cases in particular. (R. v. R.H.L., 2008 NSCA 100 , [2008] N.S.J. No. 468,paragraph 35 (C.A.); R. v. Downey, [2002] N.S.J. No. 442, paragraph 38 (S.C.); R. v. J.B., [2011] N.J. No. 142, paragraph 32 (P.C.)) Inthe domestic assault context, the vulnerability of the victim and the societal interest in addressing the harms of domestic violence havebeen cited as necessary considerations. (see, for example, R. v. Carson, paragraph 25; R. v. Kolebaba, [2011] B.C.J. No. 21, paragraphs60 and 62 (P.C.); R. v.

J.B., paragraph 32) The Context of the Group Home [23] The relationship dynamics between staff and residents in a group home are different from the power dynamics in domesticsituations where violence occurs. There are clear vulnerabilities on both sides. Staff are endeavouring to navigate daily living with youngpeople who struggle, as C does, with significant mental health and other challenges and these young residents may have difficultyregulating their emotions and reactions. [24] As A.C. testified, not all incidents such as the one in this case result in the police being called.

And presumably if the police are notcalled, the criminal justice system does not get engaged at all and the assaultive behaviour is managed and dealt with by the youth careworkers directly. Minimizing Criminalization under the Youth Criminal Justice Act [25] Even where the police are called, the Youth Criminal Justice Act offers options for dealing with offending behaviour by youngpersons that do not involve a prosecution.

The Act provides for “extrajudicial measures” with objectives that include providing “…aneffective and timely response to offending behaviour outside the bounds of judicial measures.” (section 5, YCJA) The police aremandated to consider “whether it would be sufficient” to take no further action, warn the young person, administer a caution or, with theconsent of the young person, refer them to a community-based agency or programme “that may assist the young person not to commitoffences.” (section 6(1), YCJA) [26] If a young person cannot be adequately dealt with by way of an extrajudicial measure, then an extrajudicial sanction involvingrestorative justice may be an option. (section 10, YCJA) The Youth Criminal Justice Act mandates the court to dismiss the charge againstthe young person who has been referred for an extrajudicial sanction and has fully complied with its terms and conditions. (section 10(5)(a), YCJA) [27] The Youth Criminal Justice Act does not provide for the dismissal of charges on the basis that the youth court judge is of the viewthat there were other possible options besides a prosecution for dealing with the offending behaviour. [28] The Supreme Court of Canada found no such authority under the legislative predecessor to the YCJA, the Young Offenders Act.

InR. v. T. (V.), the unanimous court held that the proper judicial response where “the strict elements of a charge have been established” wasnot dismissal of the charge but imposition of an appropriate sentence. (R. v. T.(V.), (SCC), [1992] S.C.J. No. 29,paragraph 33) The possible application of the de minimis defence was not addressed. The Youth Criminal Justice Act and its Sentencing Options [29] This is not a case where an assault was justified. It is unlike R. v. D.K., [2007] O.J.

No. 1200 (O.C.J.) where the court was notsatisfied “on the criminal standard of proof” that D.K. had committed an assault against a youth worker at his group home. (paragraph25) In that case, D.K. refused to sleep in his room and bedded down on a sofa. He grabbed the worker’s wrist when she went to remove apillow he had placed on his face. In C’s case she hit R.B. out of anger. [30] The sentencing options available under the Youth Criminal Justice Act have been influential in my assessment of whether the

defence of de minimis should apply. C is guilty of committing an assault. However, in my view, there is considerable justification and scope for a sentence that, taking into account the minor nature of the assault and C’s vulnerability as a young person with serious mental health issues, mitigates the stigma of conviction. Balancing Societal Interests [ 31 ] The Crown has proven beyond a reasonable doubt that C assaulted R.B. by hitting him twice with her fist. It was a very minor assault.

In my assessment of whether I should convict C or find her not guilty on the basis of the de minimis defence I have concluded there are societal interests to be balanced that include the societal interest in protecting youth care workers from being assaulted and the societal interest in protecting vulnerable young people from “the stigma of criminal conviction” and “the imposition of severe penalties for relatively trivial conduct.” [ 32 ] I see this as a borderline case.

I am of the view that de minimis could apply on these facts but, after evaluating all the circumstances and factors, I have chosen not to apply it. There is a legitimate societal interest in not condoning even minor assaults on youth care workers, although as I noted earlier, accountability for young persons does not, and should not, have to involve the full extent of the criminal law as it has here. As I have discussed, under the Youth Criminal Justice Act , there are alternatives to the criminalization of young persons for very minor assaults on group home youth care workers. As Kataryncyh, J. said in R. v.

D.K. , “Invocation of the criminal law is serious business. It is not a child management tool for child care workers…” ( paragraph 39 ) [ 33 ] There is a legitimate societal interest in not stigmatizing young persons struggling with mental health issues when they act inappropriately in subjectively stressful circumstances. It is my view that supporting the discretion not to engage the criminal justice system, avoiding the implementation of “zero tolerance” policies, and pursuing alternative dispute resolution are worthy options to be promoted and preserved.

These options are entirely compatible with society’s interest in holding young people accountable for their conduct. [ 34 ] I accept that judges should be careful not to second-guess the discretion exercised by youth care workers, the police and prosecutors where a young person has committed

an act that constitutes an offence in law. The principle of prosecutorial discretion was significant to the reasoning of the Supreme Court of Canada in T.(V.) and it has been a factor in my decision not to accept the de minimis defence in this case. ( T.(V.) , paragraph 11 ) However, it is legitimate to expect everyone involved in the criminal justice system to appreciate the value of restraint. In R. v. K.D. , [2010] O.J.

No. 3601 , a decision of the Ontario Court of Justice, the rejection of a de minimis defence was accompanied by these thoughtful comments: In rejecting the Defence submission, I do not wish to be taken as suggesting it is devoid of merit. The criminal law is a blunt and costly instrument and may not be a suitable response to all social problems. Moreover, in a system of limited judicial resources and a constitutional right to trial without unreasonable delay, each individual prosecution potentially affects all others.

This is one of several reasons why the justice system depends upon the wise exercise of discretionary power by the Crown, among others…( paragraph 15 ) Conclusion [ 35 ] I find that on February 20, 2016 C committed a very low end assault in circumstances where she was feeling stressed and agitated. She reacted aggressively to being confronted. At the time, due to her mental health issues she had limited coping skills and difficulty controlling her anger. The evidence established this was why she was no longer living with her mother and had been placed in a group home.

After a consideration of the societal interests at stake, I have decided that the de minimis defence should not apply. [ 36 ] I also find that by committing an assault C failed, without lawful excuse, to comply with the “keep the peace and be of good behaviour” condition of her two recognizances. Contrary to Ms. Brinton’s submission, the Crown is not required to prove that C formed the specific intention to breach this condition. [ 37 ] I therefore find C guilty of all three charges – assault (

section 266(b) ) and the breaches of her two recognizances ( section 145(3) x 2) ) [ 38 ] I will conclude by noting, in the same spirit as the Supreme Court of Canada in T.(V.) , that accountability in a case of minor misconduct can be achieved through the imposition of a lenient sentence.

Under the YCJA , accountability through meaningful consequences for a young person who has committed an offence can be effected by such “least restrictive” sanctions as a reprimand ( section 42(2)(a) ) or an absolute discharge. ( section 42(2)(b) ) The period of access to the young person’s record is, in the case of a reprimand, two months after the reprimand, and in the case of an absolute discharge, one year after the young person is found guilty. ( section 119(2)(

c) and (e) ) As I have indicated, the availability of these sentencing options has been influential in my decision not to apply the de minimis defence in this case.