Her Majesty the Queen - v. -, 2012 SKPC 68

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 068 Date: April 25, 2012 Information: 24471508 Location: Nipawin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Michael Peifer Appearing: Mr. T. Healey and Ms. L. O ’Connor For the Crown Mr. I. Carson For the Accused JUDGMENT B. MORGAN , J INTRODUCTION [ 1 ] Mr. Peifer committed an assault upon his stepson, contrary to s. 266 of the Criminal Code .

His defence relies on s. 43 of the Criminal Code , which reads: 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.

[ 2 ] The issue in this case is whether or not that

section has application to these facts. BACKGROUND [ 3 ] The background facts are not in dispute. Harley Dahl, who was 13 at the time of the incident, is the son of Eric Dahl and his then wife Colleen. Their relationship ended, and Colleen married Michael Peifer, the accused. Mr. Peifer, Colleen Peifer and Harley Dahl all reside together near Nipawin, Saskatchewan. [ 4 ] On January 19, 2012, Colleen Peifer, while at home, received a phone call from someone at Harley’s school, indicating that he was behind on some assignments.

Her evidence was that the normal form of punishment for this behaviour, which had occurred in the past, was that Harley’s iPhone and iPad would be taken away from him until he had caught up with his schoolwork. She testified that when Harley came home shortly after the call, she asked him for those items, which he would not turn over. As she put it, things had reached a “boiling point” between herself and Harley by the time her husband, the accused Michael Peifer, arrived home.

She stated she asked him for help, that he grabbed Harley, and pushed him against the wall, then took Harley down to the floor, where he pinned him by folding Harley’s arms across his chest, and kneeling on his chest and arms while Colleen Peifer searched Harley’s pockets. After doing so, she then yelled at her husband to get off, approximately four or five times, and he then did so. [ 5 ] The other Crown witness was Harley Dahl, who basically confirmed the general outline. He said that he gave up the iPad as soon as he was asked, but that he did not have the iPhone, and told Mr. Peifer and Ms.

Peifer that, but they did not believe him. He said that his mother and stepfather asked him for that phone, and that Mr. Peifer pushed him, he pushed back, and that Mr. Peifer then put him to the floor by “kind of grabbing my leg and tripping me”. He confirmed that Mr. Peifer put Harley’s arms across his chest, then Mr. Peifer put his knees on Harley’s chest. [ 6 ] In his defence, Mr. Peifer testified that he received a call from Colleen Peifer to come home, in response to the call she had received from the school, and that he then did so, and met with her on the deck, outside the house, to discuss what to do.

They decided that the usual punishment would be meted out, and that after this discussion was finished, Colleen Peifer went into the house to speak to Harley, who was by then home from school. [ 7 ] Mr. Peifer was a few minutes after Ms. Peifer in getting into the house, as he had to shed some dirty work clothes prior to going into the house. He said when he went in, he saw his wife was trying to grab at Harley’s pockets, that Harley grabbed Colleen’s arms, and that she grabbed his wrists in response. He said it looked to him as if Harley took a swing at Colleen, and that Colleen asked Mr.

Peifer to restrain Harley. Mr. Peifer said he then grabbed Harley, and that Harley pushed back and got away, and that he pushed him to the ground. [ 8 ] In his evidence, “I was very calm ... or as calm as I could be ... I was not happy by him taking a swing at Colleen”. [ 9 ] He testified that, as he is a hockey referee, it is necessary for him to be calm so that he can remember everything during a hockey game in case there is a report of some type that he has to provide, presumably based upon any altercation or incident that might merit discipline by the league at a hockey game.

When asked by his lawyer how his accuracy was on the day he testified, roughly three months after the incident, he stated “from my point of view it is dead on”. [ 10 ] He stated that after his wife had asked him to let Harley up, he did so, and that he then left the house to drive around, as he wanted to calm down; he noted that it was a high stress situation. [ 11 ] That general background is fairly clear. There is no question that Mr. Peifer applied force to Harley Dahl, without his consent. Some of the details of what occurred are less clear.

[12] First, Harley had testified that there was lots of hollering all around, although he made no mention of using foul languagetowards Mr. Peifer. According to both Colleen Peifer and Michael Peifer, Harley was using foul language towards Michael Peifer. Iaccept that was probably the case, but that doesn’t really impact in any significant way on the determination of what happened, particularly in a case such as this where everyone basically agrees on the overall circumstances. [13] There is also an inconsistency respecting how it is that Mr.

Peifer arrived upon the scene, and exactly how the preliminaries tothe physical altercation occurred. According to Harley, all three of them were sitting down talking about things, and Mr. Peifer got upand started yelling at him. Harley also stated that Mr. Peifer came home and got engaged in the conversation after he and his mother hadbeen having a discussion for approximately five minutes respecting what the punishment would be. Ms. Peifer made no mention ofmeeting with Mr. Peifer outside on the deck.

Rather, she said that he came home approximately 10 minutes after Harley had, giving nosuggestion of any pre-planning between them that day as to what the discipline would be. [14] Finally, Harley stated that he simply didn’t have a cell phone with him. Ms. Peifer indicated she never did locate either thecell phone or the iPad, and Mr. Peifer indicated that after his wife had retrieved the iPhone and the iPad, he let Harley up. [15] There is no question that the situation was obviously one in which there was quite a row. Ms. Peifer noted that thingshappened so fast, she couldn’t provide all the details.

In these circumstances, minor inconsistencies are not surprising or unexpected. The central fact of the matter is that Michael Peifer agrees that he knelt on his stepson’s chest, holding him as indicated. The issue iswhether or not s. 43 applies. ANALYSIS [16] In Ogg-Moss v. R., [1984] 2 S.C.R. 173, , a counsellor was charged with assault of a resident at a special carehome. Whereas that case dealt with whether or not a counsellor who used physical force on a developmentally delayed adult under hissupervision had the benefit of s. 43, the Supreme Court of Canada did address the parameters of that

section as follows:

Section 43 authorizes the use of force “by way of correction”. As Blackstone noted, such “correction” of a child is countenanced by thelaw because it is “for the benefit of his education”.

Section 43 is, in other words, a justification. It exculpates a parent, schoolteacher orperson standing in the place of a parent who uses force in the correction of a child, because it considers such an action not a wrongful,but a rightful, one. It follows that unless the force is “by way of correction”, that is, for the benefit of the education of the child, the useof force will not be justified. (Page 194, italics in quote) [17] In Canadian Foundation for Children, Youth and the Law v.

Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, 180 C.C.C. (3d) 353, 16 C.R. (6th) 203, the Supreme Court of Canada was dealing with the constitutionality of s. 43. In reviewing thelaw, and noting the Ogg-Moss case, the Court noted at paragraph 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. [18] Further in that case, the Court notes the following at paragraph 40: When these considerations are taken together, a solid core of meaning emerges for “reasonable under the circumstances”; sufficient toestablish a zone in which discipline risks criminal sanction.

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

not merely as corporal punishment. Coupled with the requirement that the conduct be corrective, which rules out conduct stemmingfrom the caregiver’s frustration, loss of temper or abusive personality, a consistent picture emerges of the area covered by s. 43. It iswrong for law enforcement officers or judges to apply their own subjective views of what is “reasonable under the circumstances”; thetest is objective. The question must be considered in context and in light of all the circumstances of the case. The gravity of theprecipitating event is not relevant. [19] In this case, Ms.

O’Connor, Crown counsel on the date the trial was concluded and argued, argues that s. 43 doesn’t apply,partly because, in her view, this was not a situation in which punishment was being meted out, let alone reasonable punishment. In herview, the force was not being used to correct Harley. Rather, it was force used as a way to restrain him while he was searched for thedesired cell phone. Further, she notes that Harley is a teenager, and as such, the benefit of the protection of s. 43 is not available to Mr.Peifer. [20] I have applied the test respecting credibility set out in R. v.

McKenzie (1996), (SK CA), 141 Sask. R. 221(C.A.). In so doing, I do not believe the defendant, and I am not left in doubt by his evidence. On the evidence that I do accept, for thereasons that follow, I am satisfied beyond a reasonable doubt that the force used was not by way of correction. Rather, I find that theforce used by Mr. Peifer was specifically designed for the purpose of restraining Harley.

Further, I find that the force used “wasmotivated by anger” and “animated by frustration”, to use the words of the Canadian Foundation for Children, Youth and the Law v.Canada (Attorney General) case referred to above. [21] I find that Mr. Peifer did not use the force in the calm and measured way that he says he did. The evidence satisfies me thathe was upset. His wife testified that he was, noting that she had been with him for eleven years, and she therefore knows when he isupset. Further, Mr. Peifer noted that, after things had calmed down somewhat, he left to go for a drive to calm down.

Had he been therational, cool, calm and collected individual he claimed to be at the time, there would have been no need for him to leave to calm down. [22] As well, in cross-examination, Mr. Peifer was asked if his wife asked for his help because she was afraid, and he stated thatwas not the case. Rather, she had asked for help in order to help get the phone.

That is, the purpose of the restraint of Harley wasbecause his wife wanted to search him, completely removing any notion of force being used for the benefit of the education of the child. [23] Even if I could conclude that restraining someone for the purpose of searching him for a cell phone would somehow fall undercorrection or discipline of a child, I would hold that the force used was unreasonable in the circumstances. Mr. Peifer testified that he isapproximately 5' 10" tall and weighs 320 pounds. He estimated Harley to be about 5' 6" tall with a weight between 150 and 160 pounds.

When asked why he didn’t simply put his arms around Harley to restrain him, he indicated that he had some weakness in his wrist, andthat Harley was a very strong child, particularly when he was angry. That may be the case. However, to trip a 13 year old child, andthen kneel across his body with the full weight of a 320 pound man pressed on his chest, and to continue to hold him in that position untilhe was asked three or four times to let him up, is unreasonable. The action can hardly be called trifling, nor can the harm to Harley beconsidered transitory.

He said he put an icepack on his ribs for a couple of hours, and was sore due to Mr. Peifer kneeling on him. [24] I do not accept that Harley, at any time, took a swing at his mother, as Mr. Peifer felt might have happened. Even had Mr.Peifer been of the mistaken belief that this did occur, that would not justify the force used. [25] All of the constituent elements of the assault have been made out, on the facts of this case, I find that s. 43 does not apply. Ifind Mr. Peifer guilty of the charge of assault. Dated at Nipawin, in the Province of Saskatchewan, this 25th day of April, A.D. 2012.

B. Morgan, J