2017 QCCQ 10731, 2017 QCCQ 10731

Unofficial English Translation R. c. F.D. 2017 QCCQ 10731 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI LOCALITY OF AMOS “Criminal Division” No.: 605-01-010401-168 DATE: September 12, 2017 / CORRECTED on February 5, 2018 ______________________________________________________________ PRESIDING: THE HONOURABLE JACQUES LADOUCEUR, J.C.Q. ______________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v. F. D.

Accused ______________________________________________________________ CORRECTED JUDGMENT ______________________________________________________________ BACKGROUND [ 1 ] The accused is charged of having, between December 1, 2015 and January 21, 2016, committed an assault on X, a child who was six years old at that time. The accused has been the common law partner of the child’s mother since March 2014 and invokes the protection of persons in authority under s. 43 Cr. C. [ 2 ] The day of the incident, the child arrived at her mother’s home at supper time.

She was returning from the home of her father and stepmother. The child was in a very bad mood. She refused to eat, take her bath, and go to bed. [ 3 ] At around 11:00 p.m. - 11:30 p.m., the mother, infuriated by her daughter’s refusal to go to sleep, unplugged the television set in the child’s room. The child then threw a fit by self-harming, pulling at her hair, biting herself and emptying the clothes drawers. [ 4 ] The mother tried to resolve the situation, but was unable to do so. The accused then entered the room and physically grasped the child by the jaw so that she would look at him.

The child claims, rather, that the accused grabbed her by the throat and was strangling her. This led to the charge in this case. QUESTION AT ISSUE [ 5 ] Can the accused avail himself of the protection of persons in authority under s. 43 of the Criminal Code ?

APPLICABLE LAW [ 6 ] The protection of persons in authority, set out under s. 43 of the Criminal Code in cases where force is used towards a child or a pupil, has three components: • It must be a person entitled to the protection, that is, the father, the mother, or a teacher or a person standing in the place of the father or the mother; • The force must be used by way of correction; • The force must not exceed what is reasonable. [1] [ 7 ] As in the case of self-defence and that of protecting persons tasked with administering and enforcing the law, the defence has an evidentiary burden for each of the components.

Once this burden has been met, the Crown must rebut the potential defence beyond a reasonable doubt, that is, it must prove beyond a reasonable doubt that one of the elements of the defence is not available in light of the evidence. [2]

[8] The prosecution cites R. v.

Ogg-Moss,[3] which states that at common law there are two ways in which a person could be"standing in the place of a parent", the first being in the absence or default of the natural parents.[4] [9] The Crown maintains that “[t]he parent's power of correction arises from his assumption of all the obligations of parenthood”and that “[a] person does not step into the place of a parent for purposes of assuming this power unless he also assumes all theseobligations”.[5] [10] The Supreme Court mentions, however, that there is a second way of assuming the position of a person who stands in the placeof a parent, that of delegation.[6] [11] In this regard, the Court of Appeal for British Columbia, in R. v.

Murphy, [1996] B.C.J. No. 1549, states that the delegation ofparental authority may be temporary or implicit depending on the specific facts of the case: [30] In that case, [R. v. Trynchy, (1970), (YK TC), 73 W.W.R. 165] Varcoe P.M. said at p. 167: Undoubtedly, it is a question of fact or by necessary implication in each case whether the relationship between a person and a child issuch that the person stands in the place of a parent.

In my opinion, parents who possess the primary right to discipline their children may delegate this right to others and expect those othersto assume the authority necessary for the well-being of the child exercised in a reasonable way as may be required under the particularcircumstances. … [31] Where the responsibility for the care and control of a child has been given to another person, the extent of the disciplinary powerswhich are implicit within that responsibility will depend on the specific facts of the case. [12] Furthermore, it is noteworthy that correction motivated by anger, frustration and impatience without a beneficial effect orwhich exceeds the permissible limits does not satisfy the conditions of

section 43 Cr. C.[7] RELEVANT FACTS AND ANALYSIS [13] First, the Court points out that the accused has clearly met his evidentiary burden, so the Crown must show beyond areasonable doubt that one of the elements of the defence is not available. The accused is the common law partner of the mother andrepresents something of a paternal figure who could potentially hold a delegation to stand in the place of the father or the mother, and theforce seems to have been used by way of correction and may not have exceeded what is reasonable. 1. A person entitled to the protection of

section 43 of the Criminal Code [14] At the time of the incident, the accused had been the common law partner of the mother for close to one and a half years. [15] The situation between the child’s father and mother was problematic, and it appears that the child was caught in the middle ofthis quarrel between adults. In fact, when the young girl arrived at her mother’s home, she related the insults her father had uttered to herconcerning the mother. [16] The accused mentions that the child does not respect her mother’s authority and that he was trying to be a paternal figure, morerespected by the child.

He says that he is not there full time and tries to make small interventions with the child, but that he leaves mostof the discipline up to the mother. [17] In addition, the child often threw fits, and in principle it was always the mother who intervened.

The mother confirmed that itwas she, never the accused, who disciplined the child. [18] The Court understands that she neither accepted nor tolerated any corporal punishment of the child by the accused. [19] She did, however, allow him to use physical force to control the child and correct her behaviour when, for example, she climbedonto the table and refused to get down. The accused could then take hold of the child, lift her up off the table, and place her on the floor. [20] In this sense, there was a limited and partial delegation of parental authority concerning discipline.

And we note that it tookplace when greater physical strength was required. [21] On the evening of the event, the child’s fit was more intense than usual. According to the mother, the child was uncontrollable,refused to go to bed, threw her toys and threw a drawer as well as her clothes. [22] When the accused entered the room, he believed that the child had crossed the line. According to his testimony and themother’s, he sat on the bed, placed a hand on the child’s shoulder, and, in order to make visual contact, grasped her by the chin and thejaw so that she would turn her head.

The child claims that the accused was strangling her and the Court will return to this during theanalysis of the third component of the defence. [23] The mother testified that her spouse simply wanted to help her in the intervention with the child since she was unable to calmher down. [24] The Court notes that the mother is clearly trying not to harm the accused and to present herself in a good light, but her testimonyconcerning the disciplining of the child is transparent and contains some aspects that are unfavourable to the accused. [25] That said, how should the accused have acted?

There was some urgency here to put an end to the child’s behaviour, in her owninterest.

[ 26 ] Obviously, in an ideal world, the delegation of parental authority could be done clearly and serenely. In a confusing and disorderly situation, however, we cannot expect solutions to be expressed clearly, distinctly and unequivocally. When there is an earthquake, we rarely see people walking calmly down the street to find shelter. [ 27 ] In this context, it is clear to the Court that the defence’s evidence, having regard to all the evidence, is sufficient to raise a reasonable doubt as to the unavailability of this condition for the operation of

section 43 Cr. C. 2. The force must be used by way of correction [ 28 ] Here, there is no basis for any conclusion other than that the force was used by the accused by way of correction. 3. The force must not exceed what is reasonable [ 29 ] Obviously, even if the accused acted under a delegation and even if the force was used by way of correction, it must not exceed what is reasonable. [ 30 ] When the accused entered the room, he noticed the child’s unruly behaviour. He sat on the edge of the bed and grasped the child by the shoulder with one hand in order to make visual contact.

He grasped her by the chin and the jaw with a force that, according to him, was not excessive. [ 31 ] It is possible that the accused’s hand touched the child’s throat and that the child wrongly perceived his act. The Court is convinced, however, that the accused never strangled the child. [ 32 ] He turned the young girl’s head and the girl then said that she was going to tell her father what he did.

The purpose of his intervention was to calm her, and everything happened in a matter of seconds. [ 33 ] In her testimony, the mother added that during his intervention the accused said to the child: [TRANSLATION] “That is enough, look me in the eyes”. She confirms that the child told the accused that she was going to tell her father that he strangled her. [ 34 ] Both the version given by the accused and that given by the mother show that the force used was not excessive.

Without going so far as to state that the Court entirely believes their testimonies, they are sufficiently credible and reliable as to raise a reasonable doubt. [ 35 ] Indeed, even if both the accused and the child’s mother showed signs of impatience while testifying and made some adjustments to their stories a few times, the

part concerning the force used on the child nevertheless remained consistent, and the accused in particular was not shaken, apart from when he assessed how many seconds his intervention lasted and when he claimed that the child spat in his face. [ 36 ] That said, the Court would arrive at the same conclusion if it had to assess whether the Crown’s evidence showed beyond a reasonable doubt that this condition is not available. [ 37 ] Even considering the flexibility that the Court must show in assessing a child’s testimony, the quality of this testimony is nevertheless very deficient. [ 38 ] Her very brief testimony is confused.

The child prevaricates, refuses to give details, hesitates, does not want to say too much, does not remember what her mother was doing in the room, claims that she herself was lying down when the accused, according to her, strangled her.

She says that earlier that evening she began to play behind the door of her room, that the accused saw her and put her back in her bed before returning to the living room. [ 39 ] Then, in cross-examination, she mentions again that the accused was playing video games in the living room and that he had to come back to put her in her bed, because she had gotten up and gone behind the bedroom door, but this time after the event during which the accused grasped her by the chin and allegedly strangled her. [ 40 ] In short, because of her lack of credibility and reliability, this testimony clearly fails to meet the standard of proof the Crown’s evidence must meet, that is, beyond a reasonable doubt. [ 41 ] Consequently, the Court is of the opinion that the defence under 43 of the Criminal Code is available here. [ 42 ] In R . v .

Murphy , [8] Williams, J., for the Court of Appeal for British Columbia, wrote: [35] Taken literally, anyone such as Connie or the appellant would, in the absence of s.43 , be guilty of a battery by touching him, taking him unwillingly to bed, putting him in a crib, making him sit at the table, or in any other way touching him without consent, even if the purpose of the touching was to save him from harm. [36] Common sense requires that we consider the reality of what happened on the evening of 22 July 1994 at the home of the appellant and Connie.

Kyle was extremely rambunctious, almost stepped on the baby, and would not calm down for Connie, Darren or the appellant. As a result, the appellant taped Kyle’s arms to a chair in order to calm him down. [37] It seems to me that it would be an injustice to characterize the appellant’s conduct as a criminal offence in these circumstances. The appellant was partly responsible for the care and control of Kyle.

Kyle was temporarily confined for a very short period of time in order to calm him down. [38] … There was, and had to be, some latitude for taking corrective measures in reference to Kyle’s rambunctious conduct; … [ 43 ] The Court fully agrees with these observations.

[ 44 ] FOR THESE REASONS, THE COURT : ACQUITS the accused on the charge of assault. __________________________________ JACQUES LADOUCEUR, J.C.Q. Mtre Joanie Marion For the Crown Mtre André Levasseur For the accused Date of hearing: June 22, 2017