R. v. L.(S.), 2011 ONCJ 806

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. COURT FILE No.: Toronto Region – Metro East (Scarborough) DATE: 2011·09-07 Citation: R. v. L.(S.) , 2011 ONCJ 806 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — S.L. Before Justice M. Wong Heard on April 1 and August 24, 2011 Reasons for Judgment released on September 7, 2011 M. Medieros ............................................................................................................... for the Crown J. Bogel ............................................................................................................ for the accused S.L.

Wong J.: [ 1 ] S.L., a young person within the meaning of the Youth Criminal Justice Act , pleaded not guilty to the offence of Assault Causing Bodily Harm to his foster father. The Crown elected to proceed summarily. The trial commenced on April 1, 2011, but was adjourned at the Court’s initiative so the young person could be represented by counsel rather than by a student of law.

[ 2 ] Crown called the complainant, G.B., and the Defence called his client. [ 3 ] There are multiple factual findings and credibility determinations in this case. [ 4 ] The facts in this case are fairly straightforward: [ 5 ] G.B. (age 51) had been S.'s foster parent since […] 2009. By April 16, 2010, the relationship between S. and Mr. B. was strained. Both parties agree that S. (age 16) was disengaged and disinterested. Indeed, by S.'s own account, he refused to go to school and he did not have a job. In court, S. was unapologetic about not listening to his foster father or his CAS worker.

Added to the already existing tension was Mr. B.’s belief that S. was negatively influencing another foster child in the B. home to start skipping school as well. [ 6 ] The night before the allegations before this court, tension in the home was elevated by an unrelated incident and S. stated that he wanted to leave. S. testified he had stated that on many other occasions and he meant it. [ 7 ] On the morning of April 16 th , at approximately 8:30 am, Mr. B. went to S.'s bedroom and tried to get him out of bed. S. was alone in the room and asleep. Mr.

B. testified he went to S.'s bedroom to tell him to call his child care worker, who was trying to arrange an early weekend visit on Friday instead of Saturday so that S. would be out of the house; if S. were outside the home, the other resident might be persuaded to go to school. S. testified he was not really sure why Mr. B. was trying to wake him: as far as S. was concerned –there was no need to wake up early because he was not going to school, he did not have a job, and he did not want to go with Mr. B. to drop off the other kids at school. S. said that Mr.

B. was likely “getting back at him” by waking him for no reason. [ 8 ] The upshot was that S. refused to get out of bed. Mr. B., a very large heavy set man who is 5’11” and weighs 350 lbs., began to exit the bedroom. On his way out, Mr. B. said he noticed his cordless drill lying on one of the 2 beds in the room. He reached and picked up the drill with his left hand. Mr. B. believed his right hand was likely on the doorknob because the door was very near the bed, and he would have just leaned in and picked up the drill.

As he turned to leave the room and as he was halfway out of the door with the door half closed behind him, Mr. B. said suddenly he heard a noise behind him. Mr. B. said he turned around and saw S. quickly getting out of bed. Suddenly he felt the door strike him on the right shoulder area, the force of which pushed him out of the room. Regrettably Mr. B. did not get clear of the heavy wooden door: the door slammed shut crushing his little finger on the right hand. Mr. B. said his finger looked like a crushed grape. The nail popped out and he was taken to hospital.

When asked to describe the use of force he believed S. had used to slam the door, Mr. B. said “his maximum force”. [ 9 ] It is not disputed that Mr. B. received extensive damage to his finger to constitute “bodily harm” within the definition of

section 2 of the Criminal Code . Mr. B. required plastic surgery and although the bone has healed, there is permanent nerve and muscle damage to his finger. He has made dozens of visits to the hospital because of the injury. [ 10 ] According to S., he was half asleep and has limited recall of the events. S. testified he got out of bed to close the door because he wanted to block out the noise in the hallway. He did not realize his foster father was still in the room; let alone, partially in the doorframe. He shut the door and never intended for the door to strike Mr.

B. and injure him. [ 11 ] Defence counsel emphasises there was never any previous physical contact between S. and Mr. B. to infer that the young person would have intended to assault the complainant. Furthermore, counsel argues that in law there is the requirement that “bodily harm” must be reasonably and objectively foreseeable in order to constitute the offence of assault causing bodily harm. Counsel submits it was not objectively reasonable that S. could have foreseen that Mr. B.’s finger would have been slammed in the door.

The Law : [ 12 ] I first must assess the evidence and make findings of credibility. [ 13 ] The leading case relating to credibility is R. v. W.D [1] It begins by indicating that a judge, or a jury, need not firmly believe or disbelieve any particular witness or a set of witnesses.

A judge can accept or reject some, all, or none of any particular witnesses’ testimony. [ 14 ] Further, a judge must apply the following test: [ 15 ] First, if I accept the defence evidence then obviously the accused must be acquitted. [ 16 ] Secondly, if I do not believe the defence testimony, I could still be left with a reasonable doubt, and again I must acquit the accused. [ 17 ] Thirdly, even if the defence evidence does not raise a reasonable doubt, I have to consider all of the evidence including the evidence adduced by the Crown to satisfy myself that the Crown has met its high burden and proven beyond a reasonable doubt all of the essential elements of the offences against the defendant. [ 18 ] There is also the fundamental principle that everyone is presumed innocent until their guilt has been proven beyond a reasonable doubt, and the onus is on the Crown throughout a trial. [ 19 ] I will first consider the evidence of S.L. because if it is believed then he must be acquitted.

Defence Evidence : [ 20 ] S.L. agreed with Crown counsel in many areas: S. agreed that he did not want to live at the B. residence any longer and he meant it. S. did not care that he was supposed to go to school nor did he care that CAS worker and his foster father wanted him to go to school or work. S. said he would not have called his worker even if he was told to. It was also clear from his testimony that none of

this really bothered him. S. admitted that when Mr. B. came to his door that morning, he was annoyed and a “little upset” because, according to him, there was no need for him to get up early. [ 21 ] However, there are huge gaps in S.'s recollection of his events. It is S.’s position was that he was half-asleep which accounts for his vagueness. For example, S. says he does not remember what the disagreement or incident was that occurred the night before. According to S. he only remembers Mr. B. in the bedroom, but does not remember how or why the complainant came in. S. agrees that it was likely Mr.

B. knocked before entering because that is what he had done in the past – except when he was really mad at S.. S. agreed Mr. B. could have told him to call his youth worker which was something Mr. B. had done in the past but says he cannot remember. S. agrees he might have sworn at Mr. B. but he does not recall. If he did swear at Mr. B. –S. agrees it would have been because he was upset. He agrees he wanted to be left alone –and therefore, it was possible that he told Mr. B. to leave the room. S. suggests that Mr.

B. may have wanted him to come with him to drive the other kids to school and that was because the complainant did not want to leave S. alone in the house. Even if this were the case, S. testified he would not have gone with him. [ 22 ] In spite of his inability to remember many of things, S. says he recalls he was annoyed but not angry that Mr. B. was trying to wake him up and possibly ask him to do things that S. says he cannot remember. S. testified he did not see Mr. B. in the room when he got up to quickly push or slam the door shut.

S. testified he was half asleep and only closed the door to block out the noise of someone else’s alarm clock going off. If it had taken Mr. B. longer to get out of his room because as S. acknowledged Mr. B.’s size makes him slower, it would not have made him angry. [ 23 ] In some ways, S. was very straightforward with the court. S. appears to be completely satisfied being a totally disinterested and self-centered kid. But just because he was honest with the court with those negative features of his character, his credibility suffers because of these huge gaps.

There were several questions put to S. during Cross Examination where he took long pauses before answering “I don’t remember”. It maybe that S. cannot remember or it may be because he is being evasive. His evidence is not sufficiently reliable or complete to accept on its own. [ 24 ] As such, I do not accept his evidence to the extent that it raises a doubt on either the first or second prong of the W.D . analysis. The court is entitled to consider the whole of the evidence and that includes the evidence of Mr. B.. Crown evidence : [ 25 ] Mr.

B. testified that S. had been angry and defiant with him on a daily basis. He described S. as someone who liked things when they went his own way. During these times, Mr. B. described him as “pretty quiet”, which is what he told the police. However, when things did not go S.’s way or when demands were made on him such as when a worker asked him to do something, Mr. B. said S. would become angry, physically threatening and verbally aggressive. Mr.

B. agreed with Defence counsel that S. had never physically applied force to him in the past although quarrelled with Defence suggestion that S. had never been physically aggressive before. In response to questions put to him in cross examination, Mr. B. gave two examples where he described S. as physically aggressive falling short of actually being physically violent: one where S. swung a hockey stick at a worker narrowly missing her and another where S. threw a metal stool at a wall. Mr. B. said S. displayed anger as a way to intimidate. Mr.

B. strongly disagreed with Defence counsel who asked him if he believed S. did not have any anger problems. [ 26 ] According to Mr. B., there was an incident the previous night that did not resolve until 1:30 am. During that incident, S. had stated that he wanted to leave the home. The next morning, after consulting with S.’s child care worker, Mr. B. said it was his intention to get S. to speak to his worker to arrange for his weekend visit a little before schedule. Mr.

B. said he first knocked on the door a number of times and S. swore at him and told him basically that did not want to have anything to do with Mr. B. or anyone else. The youth worker had earlier instructed Mr. B. to open the door and make sure S. understood him. As such, Mr. B. opened the door and told him that he needed to get up and call his worker to arrange a home visit on Friday as opposed to waiting for Saturday. Mr. B. also said he reminded S. that he should talk to the worker about wanting to leave the residence. Mr.

B. said when he first entered the room, S. looked up very briefly and then put his head back down. Mr. B. said he repeated that S. should get out of bed and there was no response. [ 27 ] S.'s bedroom was fairly large with two beds in it. S.'s bed was two feet away and slightly off centre to the door. There was another bed to the left of the door. The door hinges were on the right as you enter the door, which opened into the bedroom as opposed to out towards the hallway. [ 28 ] According to Mr.

B., he was leaving the room but still in the room, he reached down and with his left hand picked up his cordless drill that had been left on spare bed. As he turned to leave the room and close the door behind him, Mr. B. testified he heard a noise. He turned around and the noise was consistent with seeing S. out of bed. When asked by the Crown to estimate S.'s speed getting out of bed, Mr. B. said “as quickly as a healthy 16 year old boy could move”. Next, while still in the doorway, Mr.

B. stated in chief that S. “kicked” the door shut, which kind of pushed him out of the room while his right hand was still on the door frame. Mr. B.’s small index finger was completely crushed by the door, which physically closed shut. [ 29 ] In cross examination, Mr. B. disagreed with the suggestion that he did not actually see S. jump out of bed. As well, the witness disagreed with counsel that most of his body was out in the hallway as opposed to being still partway in the room. Mr. B. disagreed with the suggestion that from where S. was laying, the defendant could not have seen the complainant in the doorway.

Mr. B. said he was still halfway in the doorway when S. slammed the door shut. Mr. B. said “99% of his body” was outside of the hallway after the door was slammed – because the force of the door had pushed the rest of his body outside into the hallway except for his finger, which was stuck in the door. [ 30 ] Defence counsel asks the court to find that Mr. B.’s evidence is unreliable, first, because his evidence was inconsistent. I agree with Defence counsel that once during examination in chief, Mr. B. testified that S. “kicked” the door shut. In other parts of his examination in chief, Mr.

B. described S. closing the doors in many different ways: “pushing”, “closing”, and “lunging”, and he used the word “kicking” once. Other than that one time, I cannot find another occasion when Mr. B. used the word “kick”. I agree with Defence counsel there was a discrepancy and inconsistency in Mr. B.’s evidence but I do not find that it was a deliberate or prolonged

attempt to mislead the court. [ 31 ] Counsel also argues that based on Mr. B.’s version of events, it would have been impossible for S., from where he lay in bed, to see the complainant in the doorway because the door was 50% closed. As Crown counsel points out 50% closed means that the door was 50% open. I do not take S.'s evidence that he could not see Mr. B. because the complainant was on the opposite side of the door in the hallway. S.'s evidence is that based on the combination of the door being 50% closed and his sleepiness – he did not see Mr. B.. [ 32 ] Overall, I found Mr.

B. to be a credible and reliable witness. He agreed with many of Defence counsel’s suggestions: Mr. B. agreed the events happened very quickly and that when he first entered the room, he was not expecting S. to react badly. He agreed with Defence counsel that S. had never applied direct physical force to him Defence counsel asked the witness in a series of questions about whether S. had been “physically aggressive” in the past. Mr. B., I find, quite properly held his ground and disagreed with Defence counsel’s narrow the definition of “physical aggression” to mean only the use of actual physical force.

Even the Criminal Code definition of “assault” includes the threat of force without actual physical contact. I found Mr. B. was justified to forcefully disagree with Defence counsel and the debate does not undermine his credibility. [ 33 ] Mr. B. likely does not have many kind things to say about S. considering what happened to him and the challenging nature of their relationship. However, Mr. B. said S. for the most part was quiet except when he did not get his own way. I find that he described the same to police officers and that if Mr.

B. did not mention to the police about the previous incident the night before, it was because their attention was on the immediate investigation. [ 34 ] I accept Mr. B.’s version of events, which in large measure S. agreed could have happened – he just cannot remember. Except, of course, S. denies the intention to commit the offence. [ 35 ] According to S. he did not see Mr. B. because he was half asleep. I reject that testimony. I accept the evidence of Mr. B. that he knocked repeatedly on door, which prompted S. to swear at him. At this point, S. was aware that Mr. B. was outside the room.

I accept the evidence of Mr. B. that when he entered the room, S. glanced up albeit for a second before putting his head back down and ignoring him – which was consistent with S.'s response to Mr. B. and his worker. I accept that Mr. B. further pressed the point and told S. at least twice to call his worker. Some might describe it as “nagging”. Mr. B. repeatedly told S. to get out of bed and S. was refused to budge. Based on all of this interaction, I am satisfied it left S. sufficiently awake to know that his foster father waking him up; and based on his own evidence, S. thought Mr.

B. was trying to wake him out of spite because he was mad at him. I reject S.'s evidence that he was still half-asleep when Mr. B. was leaving the room to appreciate the fact that Mr. B. was in the doorway. [ 36 ] S. liked to have things done his own way – he said as much in cross examination. According to S. felt entitled to sleep. S.'s evidence was that he felt that he should be allowed to sleep in because after all he did not go to school nor did he work. It did not matter to him that Mr. B. might be driving the other residents to school and did not want S. in the house alone. S. wanted to sleep and Mr.

B. was preventing him from doing so and for no good reason. I reject S.'s evidence that he was a little upset and annoyed but not angry for being woken. I do not accept his evidence that the only reason he was closing the door was to rid him of the noise of the alarm clock blaring in someone else’s room. (I note in passing that Defence counsel did not suggest to Mr. B. that there was an alarm clock going off in the background). [ 37 ] Hence, I agree with the Crown’s theory that by the time Mr. B. had awoken him and badgered him to call his worker, that S. had enough of Mr. B.. S. thought Mr.

B. was being unreasonable and spiteful because he was trying to get him out of bed for no good reason. I am satisfied that S. deliberately slammed the wooden door with considerable force, knowing full well that Mr. B. was still in the doorway. I find it would have been impossible to have missed Mr. B. who stood 5’11’ and weighed 350 lbs. in the doorway. His frame would have likely filled the doorway even if it hadn’t been partially shut. [ 38 ] I find Mr. B.’s evidence to be reliable and credible. Assault Bodily Harm: [ 39 ] For the purpose of this case,

section 265 of the Criminal Code defines “assault” as “ A person commits an assault when without the consent of another person, he applies force intentionally to that other person, directly or indirectly”.

Section 267 of the Code creates the offence of “assault bodily harm” and

section 2 defines “ bodily harm ” as “ any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature”. [ 40 ] It is common ground that the mens reas for assault does not require specific intent. [2] General intent offences require the Crown to establish that the accused performed illegal acts “intentionally” in the sense that they are not done by accident or through honest mistake.

The act may be purely physical products of momentary passion and does not require deliberate steps taken towards an illegal goal. [3] An assault cannot be made out where the accused’s actions can be described as “careless, foolhardy, negligent or reflex”. [ 41 ] Where there is no direct physical application of force to a person but the force is applied indirectly by the accused then the issue can become more complicated. In the decision of R.v.

DMI [4] , Judge Semenuk of the Alberta Provincial Court at paragraph 100 begins citing a number of examples and gives the citations of cases where no assault has been made out: where an accused police officer has carelessly struck a person he is arresting with a handcuff; where the accused in a fit of anger and under the influence of alcohol carelessly pitched a beer bottle at the dashboard of a car that bounced off and struck the victim; where a hockey player frustrated by his team’s loss, shot a puck into a crowd of people and struck the victim in the head; where a fan at a hockey game attempted to throw a jar of peanut butter on the rink, missed and struck a person standing in the bleacher on the head, or where the accused struck the victim in the head with telephone as a result of a reflex action. [ 42 ] Counsel also provided the court with the case of R.v.

Nurse [5] , wherein the court overturned a trial judge’s finding of not guilty to Aggravated Assault but guilty to the offence of Assault Bodily Harm. In that case, the appellants fired shots into the air and the bullets landed and struck the victims causing injury. The Court of Appeal in that case decided that it would not have been objectively

foreseeable that an occupant would suffer bodily harm, and therefore, the appellants could not be found guilty of assault causing bodilyharm. [43] The Nurse decision raised the question: whether or not the Crown had to prove that the bodily harm was reasonablyforeseeable. In Martin’s Criminal Code 2012, under the annotation for

section 267 Assault Causing Bodily Harm states: “reasonableforeseeabilty that harm will occur as a result of the assault is not a necessary element of the offence” and it cites R.v. Brooks and R.v.Swenson[6] . [44] After some very helpful research, the Crown provided me with the decision of R.v.

Palombi[7], wherein JusticeRosenberg writes for the unanimous court at paragraph 39 discussing in the context of the mens reas for aggravated assault: Thus, in this case, if the jury found that the deemed consent defence was not available but that a reasonable person would not haveforeseen that the acts would cause bodily harm to the infant, the appellant could not be convicted of aggravated assault. Whether theappellant would be guilty of the included offence of assault or assault causing bodily harm depends on the fault element of assaultcausing bodily harm.

Since the assault did cause bodily harm, if the mens rea for assault and assault causing bodily harm is identical, theappellant would be guilty of assault causing bodily harm. Appellate courts in British Columbia and Saskatchewan have so held: see R. v.Swenson (1994), (SK CA), 91 C.C.C. (3d) 541 (Sask. C.A.), and R. v. Brooks (1981), (BC CA),41 C.C.C. (3d) 157 (B.C.C.A.). On the other hand, this court has held in R. v. Nurse (1993), (ON CA), 83 C.C.C.(3d) 546, and R. v.

Wong (2006), (ON CA), 209 C.C.C. (3d) 520, that the essential elements for assault causingbodily harm and aggravated assault are the same; that the offences differ only in the nature of the injury required to make out each offence. Similarly, see R. v. Dewey (1998), 1999 ABCA 5 , 132 C.C.C. (3d) 348 (Alta. C.A.)4.

Accordingly, in this province ifthe accused does not have the mens rea for aggravated assault he or she can only be convicted of common assault, even though theassault caused bodily harm. [45] For the purposes of this judgment, I am prepared to hold the Crown to the higher standard of proof as per Palombi, supraand require the Crown to prove that S. not only intended to strike the complainant with the door but that it was objectively reasonablethat bodily harm could result. [46] In this case, I find as fact that S. deliberately shut the door knowing, because he could see, that Mr.

B. was still part wayinside the door frame. S. shut the door knowing that the heavy wood door would strike Mr. B.. I also find that S. used considerableforce to shut the door. I make that finding based on the evidence that it was a large heavy door; it pushed Mr. B., who was alreadymoving forward, even more forward, and the resulting injury. S. did not just push the door closed; he used significant and deliberateforce to slam it shut. [47] I also find that it was objectively reasonable that S. ought to have known that striking Mr. B. with the door that he couldget injured.

From my experience, one of the things most parents teach their children is to be careful when slamming or shutting doors. We tell them to be careful because someone’s fingers might get caught. I am assuming that reasonable people act cautiously whenshutting doors because there is a known risk of harm. [48] Finally, I reject Defence counsel submission that S.'s actions should be construed as accidental and which vitiates the mental element of intent.

In D.M.I., supra, at paragraph 124, the judge quotes Ewaschuck, Criminal Pleading and Practice (2nd edition): “Where the crime involved general intent or recklessness, the defence of accident generally relates to an unexpected or chanceevent so unreasonably foreseeable that it exculpates the accused from any blameworthy conduct preceding the accident”. In this case, ifthe evidence were that S. was angry and slammed his door shut while at the same time a worker was entering the room and s/he werestruck and injured by the door, then I can see how the defence of accident would apply.

As the facts are before me, I find S. knew Mr.B. was in the room and on his way out through the door and pushing the door closed on him was not an accident. [49] Similarly, Defence counsel provided me with the decision of R.v. Wolfe[8] wherein the appellant’s appeal was grantedafter a trial judge found him guilty of hitting the victim in the head with a phone after the victim had first punched the appellant. Thecourt found the appellant had acted reflexively to being first struck by the victim.

In this case, even based on S.'s version of events, thereis no evidence to suggest the defendant was reacting to anything that would justify slamming the door. [50] In conclusion, I am satisfied the Crown has proven beyond a reasonable doubt the requisite elements of the offenceincluding lack of consent, and S.L. will be found guilty as charged. Released: September 7, 2011 Justice M. Wong