R. v. R.B., 2022 BCPC 26

Citation: R. v. R.B. 2022 BCPC 26 Date: 20220217 File No: 36940 Registry: Fort St. John IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.B. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D.T. REEVES Counsel for the Crown: J. Fung Counsel for the Defendant: L. Kompa Place of Hearing: Fort St. John , B.C. Date of Hearing: December 15, 16, 2021 Date of Judgment: February 17, 2022 INTRODUCTION [ 1 ] R.B. is charged on a single-count Information as follows: Count 1

R.B., from the 18th day of August, 2019 to the 19th day of August, 2019, inclusive, at or near Fort St. John in the province of BritishColumbia, did commit assault of J.B., contrary to

Section 266 of the Criminal Code. The Crown has proceeded by indictment. [2] The Crown called three witnesses: J.B., the complainant and R.B.’s daughter; R.E.B., sister to J.B. and R.B.’s daughter; andL.M.B., the mother of the two girls and R.B.’s former spouse. [3] As R.B. elected to represent himself, counsel for cross-examination was appointed pursuant to s. 486.3 and given the age of thecomplainant and familial situation at the time of the alleged incident, a publication ban was ordered pursuant to s. 486.4(2.1).

The courtnoted the age of the two youngest witnesses and the familial relationship between all three; thus, prior to the trial, witnessaccommodation pursuant to s. 486.2(1) was canvassed but not sought. [4] Following closure of the Crown’s case, R.B. testified on his own behalf. No other defence witnesses were called.

Counsel forcross-examination, in the best tradition of the legal bar, elected to represent R.B. as amicus curiae after the Crown closed its case andboth led evidence from R.B. and gave closing submissions to the court. [5] This Court must determine whether or not the Crown has discharged its burden and proven the single charge beyond areasonable doubt. The obligation is upon the Crown to prove all elements of this offence beyond a reasonable doubt.

This burden of proofrests on the prosecution throughout the trial and it never shifts to the accused. [6] Reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. It is a doubt based onreason and common sense and it must logically be derived from the evidence or the absence of evidence. “Probably guilty” is notsufficient, nor, however, is proof to absolute certainty as that would impose an impossibly high standard. The standard of a reasonabledoubt does, however, fall much closer to absolute certainty than to proof on a balance of probabilities.

In short, if based on the evidencebefore this Court, I am sure that the accused committed the offence, then I should convict, since this demonstrates that the court issatisfied of the accused's guilt beyond a reasonable doubt (R. v. Lifchus, (SCC)). WITNESS ACCOUNTS The Complainant J.B. [7] J.B. is now 17 years of age, in grade 12 and lives with her half-brother. At the time of the alleged incident, J.B. was 15 and livedwith her mother, sister and the accused at their home in the area of [omitted for publication], a community near Fort St. John, B.C.

Shetestified that on the day in question, either August 18 or 19, 2019, she and her sister R.E.B., who is two years older, were either loadingor unloading a water tank onto a flatbed trailer at the direction of the accused. The weather was wet and conditions were slippery andmuddy. At one point, R.E.B. slipped from the trailer and fell into the mud. The two girls began arguing and “bickering” verbally. Shortlyafter falling, R.E.B. touched the posts of a vehicle battery and received a shock, which again resulted in the girls raising their voices andarguing.

Once the chore was finished, the girls re-entered the family home at which time the accused yelled at them both to come intothe home office where he and their mother L.M.B. were doing paperwork. [8] J.B. testified that she and her sister entered the home office, which she diagrammed at Exhibit 1 and described as a convertedbedroom with office-style furniture around the perimeter. The accused’s desk was to the right and L.M.B.’s desk was diagonally acrossthe room from the doorway. Both the accused and L.M.B. were seated when the girls entered the room. J.B. walked ahead of R.E.B.

J.B.testified the accused was angry with the girls for their yelling outside and that she talked back to the accused, telling him to “shut the hellup” while defending the girls’ actions. J.B. felt the accused did not appreciate that R.E.B. had been “electrocuted” by the battery and J.B.was tired of him treating R.E.B. “like garbage”. J.B. told the court the accused then became more angry, arose from his seat and told her“that didn’t happen”.

He then advanced towards her, forcing her to step back and partially into the room’s closet as she feared theaccused would become violent. [9] While backing up, J.B. raised her arms to protect herself, with her elbows pointed forward, her open palms alongside her headand a knee extended in front of her to keep the accused back. At this point she testified the accused “over-hand punch[ed]” the top of herhead with closed fists at least five times in a hammer-like motion.

J.B. admitted she could not recall all of what happened next; however,did recall her mother intervening to prevent the accused from striking her further. The accused then yelled at J.B. to either get out of hishouse, or he would beat her so she would not recognize her face. J.B. testified the accused then chased her out of the home and she onlyhad time to grab her shoes and so left without outerwear or her cell phone. She remained outside and away from the home for the nextfew hours and was eventually located by her half-brother’s (now) wife.

J.B. stayed in her half-brother and his wife’s vehicle while theygathered her personal effects from the family home and then left to live with them. J.B. has never returned to that residence or attendedher father’s new home and has also avoided being with or speaking to the accused since that date. [10] In cross-examination, J.B. agreed that before this alleged incident, her mother L.M.B. and the accused had been separated forabout six months, only reuniting a few months before the alleged incident and that they have since separated again.

When challengedthat she had been upset when required to relocate schools as a result, J.B. agreed as she had to leave her former friends but pointed outshe was upset with her mother, as it was L.M.B.’s new residence that caused her to transfer to a new school. [11] J.B. also agreed that the first time she reported this to police was on January 19, 2021, approximately 17 months after the allegedincident. She explained that previously she did not know going to the police was an option, as she thought police were informed whenBC Child Protective Services became involved shortly after the alleged incident.

She testified that when she, R.E.B. and L.M.B. went tothe police, it was only to seek a protection order, as they alleged the accused was harassing them. J.B. strongly denied that it wasL.M.B.’s idea to pursue charges through the police and agreed she was aware that her parents were in court regarding child support.

Shefurther agreed that she and R.E.B. had argued several times while working outside, had used loud voices, screams and “choice words”when R.E.B. was shocked, but was emphatic that the arguments ended upon entering the home and that she did not willingly leave thehome but was chased from it by the accused.

[ 12 ] J.B. also agreed that she did not suffer any cuts from the alleged incident, but as she was struck to the top of her head, she could not confirm any bruising. J.B. did not receive medical treatment after this incident, but at some point later, head trauma was indicated when she had medical scans of her head performed due to the onset of headaches and migraines. J.B. candidly admitted she did not know if this head trauma was in relation to this incident or not.

J.B. disagreed that she was ever “out of control” and rejected the suggestion that the accused only slapped her once with an open palm to her face in order to correct her behaviour. She was also emphatic that it was only her mother physically restraining R.B.’s arm that stopped the alleged assault. The Witness R.E.B. [ 13 ] R.E.B. is now 19-years-old and was 17 at the time of the alleged incident. [ 14 ] R.E.B. recalled it was raining and “gross” on the day of the incident and while she and J.B. moved a water tank onto or off a trailer, she was bumped and fell, resulting in the two sisters arguing.

The argument continued when she touched a battery with a wrench and received a shock. Once finished the chore, the girls entered the home and the accused called them into the home office, with J.B. entering the room first and R.E.B. remaining partially in the doorway. J.B. stepped towards the accused to tell him about R.E.B. being shocked by the battery, when he began yelling and that is when the actual fighting happened. The accused arose from his chair and drew very close to J.B., causing her to back away and R.E.B. stated the accused then struck J.B., possibly with an open hand.

R.E.B. watched as J.B. raised her arms defensively and backed away as the accused began to strike her on top of her head. She heard L.M.B. tell the accused to stop and saw her stand and move between the accused and J.B., but at this point R.E.B. was unable to see more as her view was partially blocked by the closet wall or door and the doorway. A few moments later, the accused backed away from J.B. and chased J.B. out of the house, telling her she had to leave.

J.B. put her shoes on and ran from the home and R.E.B. was ordered by the accused to go to her room. [ 15 ] In cross-examination, R.E.B. agreed that her memory of events was “fuzzy” and she was unsure of some things, but recalled the arguments outside with J.B. R.E.B. agreed that the girls first yelled at each other, but they were only “slightly bickering” as they entered the home. She agreed that both the accused and J.B. used raised voices while arguing and that she stepped back when the argument escalated, as she does not like confrontation.

R.E.B. was unsure if the accused slapped or punched J.B., but was firm that he used multiple, repeated blows. R.E.B. was also firm that the accused chased J.B. from the home without her phone or proper clothing on. [ 16 ] R.E.B. emphatically denied that the witnesses were collaborating to assist each other’s memory of the incident in order to reconstruct what happened, or that she had fabricated evidence. R.E.B. agreed that the three witnesses did discuss the incident before reporting to police, but with regards to how this might affect them and not to plan or arrange their evidence.

The Witness L.M.B. [ 17 ] L.M.B. is the mother to J.B. and R.E.B. and was married to R.B. at the time of the alleged incident. She works as a bookkeeper. [ 18 ] The court heard that both L.M.B. and the accused were seated doing paperwork for their small business in their home office when she heard their two daughters fighting while doing chores outside. When the girls entered the home, the accused appeared angry and ordered them to the office and then began chastising them and calling them names. J.B. spoke back and told the accused to “shut the hell up as he wasn’t there”, while calling him names.

The accused became more angry, rose from his seat and began shouting. L.M.B. saw J.B. raise her hands and back away from the accused until she was against the closet gun-cabinet, while he struck her at least six times.

L.M.B. got out of her chair and yelled at the accused to stop while grabbing his arm, at which point J.B. ran from the room and the accused chased her from the home. [ 19 ] In cross-examination, L.M.B. agreed she and R.B. had been married since 2001 and were currently in the process of divorcing and that prior to this alleged incident, they had separated on a number of occasions due to their rocky relationship. [ 20 ] She disagreed that the girls were still arguing when they came into the home office and repeated that J.B. only raised her voice to the accused after he began calling the girls “fucktards and idiots”. [ 21 ] L.M.B. clarified that when J.B. initially tried to tell the accused about her sister being electrocuted by the battery, she became defensive when R.B. scoffed at this and agreed that both J.B. and the accused used vulgar language and swore at each other.

L.M.B. firmly rejected that the accused only struck J.B. once with an open-hand slap to the head or that J.B. first advanced towards the accused and maintained her evidence of multiple blows using a closed fist while J.B. raised her arms in defence. L.M.B. likewise maintained that the accused forced J.B. to run from the home.

When pressed about what occurred next, L.M.B. agreed that she confronted R.B. in their bedroom but denied that she assaulted him there. [ 22 ] When confronted that this was not reported to police until January of 2021, L.M.B. stated that she had assumed police were advised when she and the girls did report to social services in September or October following the incident. When L.M.B. went to the police in December of 2020, it was to seek a protection order against the accused and she denied colluding with the girls or fabricating evidence.

She acknowledged a bias towards the girls as their mother, but denied any desire to hurt the accused, but rather, told the court she hoped he would get the help he needs. The Accused R.B. [ 23 ] R.B. testified that he is a red seal heavy duty mechanic and that he and L.M.B. were in the midst of divorce proceedings, having separated on August 27, 2019, for the final time.

Prior to that, they had separated on three earlier occasions, having reconciled in June of 2019 just prior to the incident. [ 24 ] R.B. testified that August 19, 2019, was a Sunday and he and L.M.B. were seated at their respective desks in the home office doing paperwork for their small business. J.B. and R.E.B. were outside moving a water tank onto or off a flat deck trailer and he heard J.B. and R.E.B. scream and argue with each other. This continued as the girls entered the home and R.B. described J.B.’s tone as loud, aggressive and almost screaming at R.E.B.

As the girls entered the home, he could hear J.B. telling R.E.B. to stop complaining, to suck it

up and what had happened was no big deal. R.B. told the court he was initially calm when he summoned the girls, but J.B. was talking inan elevated voice that forced him to raise his own. J.B. then yelled in his face and told him what happened outside was none of hisbusiness, not to tell her what to do and used very disrespectful body language. At this point, R.B. arose and J.B. stepped back and becamemore agitated, screaming uncontrollably while trying to get her point across that he was not listening to her and was not outside whenthings had happened.

R.B. told the court his voice changed because he felt disrespected, particularly when J.B. called him a fuckingretard. He agreed this language did not make him feel good. [25] R.B. testified that at this point, J.B. stepped back and also raised her hands as “she must have realized she would get her facecuffed”. J.B. backed up and once against the safe in the closet, the accused open-hand slapped her once using “very moderate force” tothe left side of her face, to stop her from verbally assaulting him.

At this point, L.M.B. hit him and pulled at him and J.B. left the officein a fit, headed for the front door where she put on her shoes and left. As J.B. was leaving the home, he told her that if she was not goingto live by the house rules, she could leave. [26] After J.B. left, R.B. testified that he went into the master bedroom as he was upset that L.M.B. was violent towards him and hewanted to remove himself from the situation. He lay on the bed and heard L.M.B. tell R.E.B. to go to her room.

L.M.B. then entered theirbedroom and assaulted him by pulling on his beard to the point his head was lifted from the bed and whiskers were pulled from hisbeard, and she beat on his chest and arms while yelling repeatedly. He remained very calm and did not respond as he did not want anypart of the argument, which lasted about 20 minutes. [27] After L.M.B. left the room, he remained for 15-20 more minutes, then also left to look for J.B. He had not seen J.B. until October17, 2020, when she was at his brother’s following a hunt.

He told the court that he and J.B. worked together to skin and butcher a moose,were cordial and polite to each other and that aside from one other chance encounter, he has had no contact with J.B. since this incident. [28] In cross-examination, R.B. confirmed that he heard J.B. yelling and arguing with R.E.B. and agreed that he yelled at the girls tocome to the office. He also agreed with the Crown that he was in fact angry and not calm when the girls entered the office and both heand J.B. used “very raised voices” towards each other while he was still seated.

R.B. denied calling either of the girls names at this pointand was firm that the reason he called them into the office was to correct their behaviour outside. When it was put to him that J.B. wastrying to tell him about R.E.B. being shocked, R.B. corrected the Crown and told the court that J.B. in fact was trying to tell him thatR.E.B. had been electrocuted, which was a big difference.

R.B. then went on to agree he scoffed at J.B.’s story as there is a big differencebetween being electrocuted and being shocked by a truck battery, which is not powerful enough to electrocute a person and so is notdeadly. [29] R.B. agreed he arose from his seat when J.B. told him to shut up but that he only “corrected” J.B. with a single open-handed slapto her face. R.B. agreed with the Crown that J.B. backed up as he stood, but now disputed that J.B. raised her hands beside her head todefend herself.

R.B. stated that he was struck by L.M.B. likely at the same time as he struck J.B. and that after slapping J.B., he did walkbehind her out of the home office and down the hallway but denied that he followed or chased her out of the house. POSITIONS OF THE PARTIES [30] In closing submissions, counsel for the accused conceded that force was applied by R.B. towards his daughter J.B. and thus, anassault as defined by s. 265 of the Criminal Code is made out. Those provisions of s. 265 applicable to the facts before this court providethat: 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; . . . [31] The accused argued that this Court should accept his evidence that the force applied was a single open-handed slap to the side ofJ.B.’s face and reject the evidence of the Crown witnesses alleging he struck multiple blows with a closed fist against the top of J.B.’shead.

If the court accepts the accused’s version, then it was argued that the force applied towards J.B. was by way of correction, that itwas reasonable in the circumstances and thus, s. 43 of the Criminal Code applies. [32] The Crown urged that this Court should find the testimony of the Crown’s three witnesses was credible and reliable and shouldbe preferred to that of the accused. In the alternative, even if this Court does prefer the evidence of R.B., s. 43 does not apply, as the forcehe admitted to applying was neither corrective in purpose nor reasonable in the circumstances.

The Crown further argued that s. 43 doesnot permit of any force that may be lawfully applied for a corrective purpose towards a teenager. [33] This court will therefore address two issues: a. What was the nature of the force applied to J.B. by R.B.? b. In the circumstances of this case, does s. 43 of the Criminal Code provide a defence to the charge under s. 266? CREDIBILITY AND RELIABILITY OF WITNESSES The Law [34] From the Supreme Court of Canada in R. v.

W.(D.), (SCC), the court is directed that when faced with conflictingaccounts involving credibility between Crown witnesses and the accused, the following process is to be observed:

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [35] In R. v.

C.W.H., (BC CA) at page 16, the court added the further instruction that “If, after a carefulconsideration of all of the evidence, you are unable to decide whom to believe, you must acquit”. Taken together therefore, courts mustassess the credibility and reliability of all the witnesses who provided evidence and weigh their evidence accordingly. Credibility is notjudged solely on the witnesses’ appearance or demeanour. Other factors to consider include “Opportunities for knowledge, powers ofobservation, judgment and memory, ability to describe clearly what he has seen and heard” (Faryna v.

Chorny, (BCCA) pages 356-357).

To this should be added the witnesses’ ability to recall, motivations, probability or plausibility of their evidence andthe internal and external consistency of their testimony. [36] In assessing the credibility of any witness and in particular where witnesses’ evidence is in conflict, the evidence must also beviewed for “. . . its harmony with the preponderance of the probabilities which a practical and informed person would readily recognizeas reasonable in that place and in those conditions” (Faryna page 357). [37] Even honest witnesses may make mistakes in their evidence or have errors of recollection, or may present upon the stand in anervous or uncertain manner for reasons unrelated to the truthfulness of their testimony.

Where evidence is contradictory, it is an error tosimply weigh the evidence of one witness against the evidence of another (R. v. Jackson, 2007 BCSC 636; R. v. Mann, 2010 ONCA342). Analysis of Witness Credibility [38] Counsel for the accused suggested that in the circumstances of violent assault as alleged, it would defy common sense that aperson would not report this to police until almost 1½ years after the alleged incident. Absent evidence to support an ulterior motive, thisline of argument deserves no weight however, as it would invoke an impermissible reliance on a stereotype. In R. v.

A.R.D., 2017 ABCA237 at para. 9, the majority of that court emphasised that: [9] . . . reliance on a stereotype to found an assessment of credibility bearing on reasonable doubt is impermissible—it is an error of law. .. . to suggest that stereotypical thinking is merely logic or common sense is a licence for it to continue unmasked and unabated. . . . This form of stereotypical thinking has long been abandoned with regards to allegations of sexual assault and in R. v. Thompson, 2019BCCA 1 at paras 52 - 60, the BC Court of Appeal found such reasoning equally erroneous in the context of domestic assaults.

Here,where the alleged assault took place within a domestic context, albeit between a father and his daughter, I find this reasoning equallyapplies. [39] This Court was likewise invited to reject the evidence of multiple closed-fist blows to J.B.’s head and her own admission that shedid not seek medical treatment and provided no evidence of lasting injury. [40] Firstly, there was some evidence of lasting injury: J.B. testified to experiencing headaches and migraines requiring a CT scansometime after this incident.

Although J.B. candidly admitted that she could not directly correlate the headaches and migraines with thisincident, this is not an absence of evidence – it is however not much evidence. [41] Secondly, it was noted that J.B. herself did not try to exaggerate her condition or even directly attribute it to the alleged assault.J.B. candidly told the court she may have suffered contusions but was not sure as she was struck on the top of her head by R.B. with aclosed fist in a hammer-type movement and thus, could not observe bruising if it was present. [42] Had evidence been called regarding whether J.B. had ever suffered any other form of trauma to her head, such as through sportsor otherwise, the argument to make an adverse inference might have been more persuasive.

This Court did not hear that and so littleweight can be given to this evidence as a whole. [43] Having heard witnesses for the Crown and defence and applying the tests as set out above, I have reached the followingconclusions: I found the evidence of J.B. to be reliable and credible; she gave a straightforward recollection of the events withoutembellishment and was unshaken in cross-examination; J.B. conceded when she was unsure of a fact and refused to directly attribute herhead trauma to this incident, as the medical examination took place sometime after these events; her evidence was internally andexternally consistent on several points, including her testimony that R.B. “scoffed” at her when she tried to tell him that R.E.B. hadelectrocuted herself – in his own cross-examination, R.B. confirmed this. [44] Regarding the argument that J.B. was biased against R.B., I found her answers to one line of cross-examination compelling.

Shewas challenged and agreed that she was upset when required to move to a new school – but this was due to her mother’s new residentialaddress and not her father’s; thus, it was her mother L.M.B. she was upset with. I also found compelling J.B.’s clear and unequivocalevidence that she retreated when R.B advanced towards her but was never pushed by the accused. She did not seek to exaggerate hisactions here, which was contrasted by other witnesses who alleged the accused did push and then strike J.B., thus forcing her retreat.

Aswell, J.B.’s evidence that she raised her hands and arms before her to defend herself was consistent with one who feels the need to backaway from another under threat as she backed away from R.B. Lastly, her evidence was externally consistent, given that following thealleged incident, J.B. ran into a drizzly and muddy day without proper outerwear or even her phone, remained outside until picked up byher brother’s wife and that she has never returned to live or have meaningful contact with her father R.B. [45] The evidence of R.E.B. was also credible, but less reliable.

Like her sister, R.E.B. conceded when she could not recall a fact ordetail, but was firm in her recollection that she observed R.B. strike J.B. more than once, although she admitted she was uncertainwhether an open or closed hand was used. R.E.B. likewise was adamant in her recollection that immediately after the alleged incident,

R.B. chased after J.B., such that J.B. had only enough time to put on shoes before running from the home. [ 46 ] I accept the evidence of L.M.B. with some reservation in regards to her credibility and reliability. L.M.B. readily conceded that she is in contested and heated divorce proceedings involving R.B. At times she appeared to deflect questions, in particular her answers with regards to her confrontation with R.B. in their bedroom following the incident. L.M.B.’s denial that she applied force to R.B. in any way at that point lacked the ring of truth.

L.M.B. did not however attempt to embellish her account of the alleged incident itself, which was delivered in a straightforward manner. [ 47 ] I recognize counsel for R.B.’s argument that the witnesses had an opportunity prior to making statements to the police to tailor their evidence; however, I found no evidence of that in court. Their accounts differed in some areas and coincided in others, both trivial and important, which is to be expected of three witnesses living through or viewing an incident from their individual vantage points.

Each at different points in their evidence conceded where they did not know a thing, or could have been in error in their recollection, yet in other key aspects their evidence was unshaken. [ 48 ] With regards to the evidence presented by the defendant, I found his recollection of the incident not believable. R.B. presented in this Court as a proud and powerful man, who works in an industry where physical strength is required to do most if not almost all tasks.

In direct questioning, R.B. told the court he was calm when he first ordered the girls into the office, only to concede in cross-examination that he was angry when he directed them.

R.B. told the court he corrected J.B.’s account of what happened to R.E.B. with regards to the battery and being shocked versus electrocuted with thinly veiled distain for J.B.’s lack of this same knowledge – a distinction that would be fundamental for a red seal heavy duty mechanic, but would not likely be readily known by untrained teens. [ 49 ] In direct, R.B. stated that when he arose from his seat and J.B. backed away, she also raised her hands as she “she must have realized she would get her face cuffed”, but then changed his evidence in cross-examination when he said that J.B. never raised her hands.

He described striking J.B. once with an open hand using moderate force, because she was disrespecting him and calling him names – but then did nothing when his wife turned on him in their bedroom and assaulted him by pulling his beard, striking him repeatedly and yelling at him. This is utterly implausible. [ 50 ] R.B. likewise told the court that L.M.B. struck him at approximately the same time as he struck J.B. – again this is not credible, as what reason would L.M.B. have to move against him physically prior to him using force against J.B.?

ANALYSIS What was the nature of the force applied to J.B. by R.B.? [ 51 ] With regards to the evidence heard, I find the following: First, I did not believe the evidence of the accused that he struck J.B. a single time with an open hand; Second, I was also not left in a reasonable doubt by the evidence of the accused; Third, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused. [ 52 ] I am convinced that R.B. committed an assault against J.B. and therefore I must now address the law in relation to s. 43 of the Criminal Code .

IN THE CIRCUMSTANCES OF THIS CASE, DOES S. 43 OF THE CRIMINAL CODE PROVIDE A DEFENCE TO THE CHARGE UNDER S. 266? The Law [ 53 ]

Section 43 of the Criminal Code states: 43 Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances. [ 54 ] The leading Canadian case in this area is Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) , 2004 SCC 4 . There the court found that s. 43 does not offend s. 7 of the Charter .

I was urged by the Crown to find that this decision excludes the applicability of a s. 43 defence for assaults against teenagers, citing Chief Justice McLachlin (as she then was) at para. 37 where she wrote for the majority: 37 . . . Corporal punishment of teenagers is harmful, because it can induce aggressive 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 be reasonable. [ 55 ] To more fully understand this issue however, it is necessary to also refer to an earlier portion of the majority decision, when the court stated the purpose of s. 43 : 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 have seen, 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 hoc discretionary decision making by law enforcement officials.

People must be able to assess when conduct approaches the boundaries of the sphere that s. 43 provides. [ 56 ] This is an important direction from the Supreme Court, as it directs law enforcement officials – and trial judges – to be mindful of the respect we must have for the family unit and unique challenges naturally posed by Canadian youth as they transition through this point in their lives, balanced against those same youths’ rights in relation to their bodily integrity and need for respect towards their

personal decisions.

Parents, school teachers and those caregivers standing in the position of parents who are called upon to makedecisions involving family or youth discipline and correction must be aware of the limits of permissible conduct, while the lawenforcement community must likewise avoid taking action or overreaching based upon personal experiences, beliefs and biases. [57] The court then went on to set out two limitations to be considered before finding that permissible force is “by way of correction”,stating at paras 24-26: 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 termfails to 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 Appealin 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”. [58] Thus, I must first determine the intent behind the force used and whether J.B. was capable of benefiting from the correction. [59] Next, I must consider all the circumstances under which the force was used.

In so doing, I am also mindful of further directionprovided by McLachlin C.J. as follows: 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 giventhe 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 emotionallyharmful. Corporal punishment which involves slaps or blows to the head is harmful.

These types of punishment, we may conclude, willnot be reasonable. . . . 40 When these considerations are taken together, a solid core of meaning emerges for “reasonable under the circumstances”,sufficient to establish a zone in which discipline risks criminal sanction. Generally, s. 43 exempts from criminal sanction only minorcorrective force of a transitory and trifling nature. On the basis of current expert consensus, it does not apply to corporal punishment ofchildren under two or teenagers. Degrading, inhuman or harmful conduct is not protected.

Discipline by the use of objects or blows orslaps to the head is unreasonable. Teachers may reasonably apply force to remove a child from a classroom or secure compliance withinstructions, but not merely as corporal punishment. Coupled with the requirement that the conduct be corrective, which rules outconduct stemming from the caregiver’s frustration, loss of temper or abusive personality, a consistent picture emerges of the areacovered by s. 43. It is wrong for law enforcement officers or judges to apply their own subjective views of what is “reasonable under thecircumstances”; the test is objective.

The question must be considered in context and in light of all the circumstances of the case. Thegravity of the precipitating event is not relevant. [60] The use of force by a parent directed against his teenage daughter was discussed in R. v. B.S., (ON SC).There, a father was charged after he grabbed his 15-year-old daughter and placed her in his vehicle to prevent her from meeting up withher violent and abusive boyfriend who encouraged and aided her drug use. Although convicted at trial, on appeal. Robertson J. examinedthe distinction between corporal punishment and other corrective uses of force.

Citing Canadian Foundations at para 14-15, the courtacknowledged that: [14] . . . two limitations [were placed] on the use of the force protected by s. 43. First, the person applying the force must haveintended it to be for educative or corrective purposes. Second, the child must be capable of benefiting from the correction in the sensethat the child must have the capacity to successfully learn from the correction.

Section 43 does not justify acts of force against a child

that are motivated by anger or animated by frustration. Rather, s. 43 only protects “reasoned uses of force that address the actualbehaviour of the child and are designed to restrain, control or express some symbolic disapproval of his or her behaviour.” [15] Canadian Foundations does not stand for the proposition that parents or the authorities are prohibited from restraining an unrulyteen where reasonable. The concept of correction envisaged in s. 43 is broader than spanking or corporal punishment. Correction is notlimited to corporal punishment and may include corrective restraint.

Chief Justice McLachlin specifically referred to restraint and controlat p. 375, supra. [61] Having reviewed the Canadian Foundations case in detail, Robertson J. concluded that although the Supreme Court of Canadafound based upon current expert consensus that s. 43 does not apply to corporal punishment of children under two or teenagers, it doesnot prohibit the use of force to correct teens. [62] In explaining the court’s reasoning, Robertson J. found exceptional circumstances in the B.S. case.

He found that there were nophysical injuries suffered by the child, as well, no weapon was used and the child was neither spanked nor struck in any other manner.The court found that the father acted on his belief that the child was embarking on an unsafe path and found that the force used by thefather was “by way of correction”.

The court allowed the appeal from a finding of guilt at the trial court. [63] The facts in the B.S. case are clearly distinguishable from the facts in this case. [64] I also turned my mind to the direction of the SCC in Canadian Foundations at para. 14, that “Section 43 does not justify acts offorce against a child that are motivated by anger or animated by frustration.” [65] It is not reasonable to expect a parent to always remain calm and detached when dealing with and correcting a teenage child – butanger and correction are not mutually exclusive concepts.

The question of a parent’s anger when considered in relation to s. 43 wasconsidered by Feldman J. in R. v. T.I., (ON CJ), where she relied on R. v. Peterson, [1995] O.J. No. 1266 (Ont. Ct.Prov. Div.) at p. 15: [23] . . . It is unrealistic to assume that parents discipline their children, whatever the nature of the infraction, in a state of detached calm.Anger is part and parcel of correction of the child.

What is relevant is not whether the parent is upset, distraught, frustrated, annoyed orangry, but whether the parent is in control of his or her anger or emotions. [66] In my search of Canadian case law, I was able to find only one case, R. v. D.K., [2004] O.J. No. 4676, wherein a parent’s slap toa teenage daughter’s cheek was found to benefit from the defence provided at s. 43. In that case a mother slapped her 13-year-olddaughter lightly on the cheek.

The evidence of both the child and mother was that at the relevant time, the child was acting in anintentionally disrespectful manner towards her mother, behaviour that the child acknowledged knowing was not up to her mother’sexpectations. The slap did not cause any pain and there were no continuing physical effects experienced by the daughter. In reviewingCanadian Foundation regarding blows to the head against the evidence, that court found that the mother’s light slap was for the purposeof correcting her daughter’s disrespectful behaviour and perhaps also to express symbolic disapproval of that behaviour.

The mother wasfound not guilty and the slap was determined to be a minor corrective force of a transitory and trifling nature. Analysis of applicability of s. 43 [67] Having reviewed Canadian Foundations and subsequent case law, I find that s. 43 may apply where a parent or someonestanding in lieu of a parent applies non-consensual force, provided the force applied is for corrective purposes, has corrective value andis reasonable in the circumstances.

Where the force applied is not done for a corrective purpose, or where the child is not capable ofbeing corrected or disciplined by the corrective force applied, or where the force applied is unreasonable or rises to corporal punishment,particularly where objects are used or unreasonable blows or slaps to the head are administered, that corrective value is absent.

Aparent’s anger, frustration, or annoyance in the situation is a factor to be considered by the court; however, it must be determined if theforce then applied was nevertheless tempered by reason and control, or if it was intemperate and/or otherwise restrained. [68] I find the following relevant facts and circumstances with regards to R.B.’s application of force towards J.B. and in determiningif s. 43 applies in this case: a. On August 19, 2019, the daughter J.B. was a teenager, 15 years of age. b.

J.B. was living in the home of her father R.B. and his then partner – and J.B.’s mother – L.M.B., and her sister R.E.B. c. R.B. became upset with both J.B. and her sister R.E.B. for their loud verbal argument outside and ordered them into the home officeto “correct their behaviour”. R.B. was angry when he did this. d. While angry, R.B. began verbally correcting J.B., at which point she confronted him in what he perceived as a disrespectful manner. e.

R.B. responded to what he perceived as disrespectful volume, tone, language and posture from J.B. in kind, elevating his own voice,adopting a more authoritative tone and using vulgar and disrespectful language, particularly when correcting J.B.’s characterization ofR.E.B. being electrocuted by coming into contact with the vehicle battery. f. When J.B. failed to defer to his authority, R.B. arose from his seat and continued his verbal exchange and again the volume, toneand use of language escalated between the two. At this point, R.B. lost control of his anger and emotion. g.

R.B. became frustrated and more angry that J.B. was failing to defer to his authority and advanced in a menacing manner towards her.J.B. in turn stepped back in retreat, holding her hands and arms up in a defensive manner. h. In frustration and anger at his daughter’s failure to submit to his authority, R.B. intentionally struck J.B. once or more to the facewith his open hand and when unable to continue due to her defensive posture, R.B. struck her several additional times to the top of her

head using his clenched fists. i. The force applied by R.B. against his daughter J.B. was intended to discipline her for her disrespectful attitude and refusal to defer to this authority and was done out of emotional anger and frustration that overrode R.B.’s self-control over his emotions. j. J.B. was capable of being corrected; however, in the circumstances of striking blows to her face and head, R.B. exceeded what was reasonable in the circumstances to achieve a corrective result. What occurred was corporal punishment. k.

Once L.M.B. was successful in physically intervening herself between R.B. and J.B., J.B. fled from the room and was chased by R.B., who in anger demanded she leave the home or he would take further physical action against her. [ 69 ] I therefore find that the accused did apply force to J.B., not for a corrective purpose, but animated out of frustration and anger and his own authoritarian personality. He applied this force intentionally and without J.B.’s consent.

The force applied by R.B. was an outburst of violence against his teenage daughter, motivated by anger and animated by frustration and I do not find it was intended to be for educative or corrective purposes. R.B.’s outburst against his daughter J.B. was precipitated by his own engagement in J.B.’s escalation – it was not a reasoned use of force to address her actual behaviour. It was not designed or intended to restrain, control, or even express some symbolic disapproval of her behaviour.

It was corporal punishment for her behaviour and intransience at refusing to defer to his authority and bow to his power. [ 70 ] The force employed was also not reasonable in the circumstances.

R.B. remained focused on J.B.’s transgressions – fighting with her sister and then refusing to bow to his authority – and what he perceived as a requirement for him to correct and overwhelm her attitude and behaviour using physical means. [ 71 ] Lastly, while J.B. was capable of benefiting from a correction in the sense that she had the capacity to successfully learn from a correction, the force used in these circumstances was unreasonable and incompatible with either restraint or control of her behaviour.

Rather than express disapproval of her behaviour, R.B.’s actions demonstrated that violence was an acceptable solution in his eyes. [ 72 ] This force was comprised of one or more open-handed slaps to J.B.’s face, followed by several overhand blows using a closed fist to the top of her head. This physical assault is the very definition of corporal punishment of a teenager, as it involved slaps and blows to the head which regardless of any lasting physical injury or harm to the victim, is by its very nature harmful, because it can induce aggressive or antisocial behaviour.

As such, this was corporal punishment and was not reasonable. [ 73 ] In the event I am incorrect in the number of blows struck, I note that R.B. himself in direct and cross-examination admitted to slapping J.B. a single time using an open hand to her face. In his direct examination, he stated that when she began to retreat and raised her hands “she must have realized she would get her face cuffed”. Following his use of force against her, he pursued her as she ran out of the home, barely taking time to put her shoes on before going out into the inclement weather without proper outerwear.

This by itself is “corporal punishment involving a slap to the head”, followed by a demonstration of force which compelled J.B. to flee the home, all of which remains harmful and again is not reasonable. This slap to the head alone would be degrading and dehumanizing and would only serve to demonstrate that violence and power are acceptable methods of expression – they are not. DECISION [ 74 ] R.B. is guilty of assault contrary to s. 266, the sole count on the Information. _____________________________ The Honourable Judge D.T. Reeves Provincial Court of British Columbia