2011 NBCA 75, 2011 NBCA 75

COURT OF APPEAL OF NEW BRUNSWICK 119-10-CA S.S. APPELLANT S.S. APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE S.S. v. R., 2011 NBCA 75 S.S. c.

R., 2011 NBCA 75 CORAM: The Honourable Justice Turnbull The Honourable Justice Deschênes The Honourable Justice Bell CORAM : L’honorable juge Turnbull L’honorable juge Deschênes L’honorable juge Bell Appeal from a decision of the Provincial Court: Trial: June 21, 2010 Sentence: August 18, 2010 Appel d’une décision de la Cour provinciale : Procès : le 21 juin 2010 Prononcé de la peine : le 18 août 2010 History of case: Decision under appeal: Unreported Preliminary or incidental proceedings: N/A Historique de la cause : Décision frappée d’appel : Inédite Procédures préliminaires ou accessoires : S.O.

Appeal heard: January 11, 2011 Appel entendu : Le 11 janvier 2011 Judgment rendered: September 8, 2011 Jugement rendu : Le 8 septembre 2011 Reasons for judgment by: The Honourable Justice Bell Motifs de jugement : L’honorable juge Bell

Concurred in by: The Honourable Justice Turnbull Souscrit aux motifs : L’honorable juge Turnbull Dissenting reasons by: The Honourable Justice Deschênes Counsel at hearing: For the appellant: S.S. appeared in person For the respondent: Cameron H. Gunn Motifs dissidents : L’honorable juge Deschênes Avocats à l’audience : Pour l’appelant : S.S. a comparu en personne Pour l’intimée : Cameron H. Gunn THE COURT The appeal is allowed and a new trial ordered. Deschênes J.A., dissenting, would have dismissedthe appeal. LA COUR Accueille l’appel et ordonne la tenue d’un nouveauprocès.

Le juge d’appel Deschênes, dissident en l’instance,aurait débouté l’appelant. The following are the reasons delivered by DESCHÊNES, J.A. (dissenting) [1] This is a case where the trial judge made critical credibility findings. Although she accepted parts of theappellant’s testimony, she rejected those parts which she found “ludicrous” in light of all the evidence and, more particularly, theevidence provided by Crown witnesses.

Based on the evidence she accepted, the trial judge concluded the spanking of the 6-year-oldboy was corrective in nature, but the number of blows administered to the child and the duration of the spanking were “unreasonable”under the circumstances; thus, the defense provided to a parent under s. 43 of the Criminal Code, R.S.C. 1985, c.

C-46, was not availableto the appellant. [2] I have read the reasons for judgment of my colleagues and, while I agree with some of their comments on thelaw, I respectfully disagree with their application of the law to this case. [3] In reaching my conclusion as to how to dispose of this case, I should start by stating that I take no issue withthe general proposition enunciated by my colleagues which emanates from R. v.

Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, and R. v.R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, that reasons for judgment “must be sufficient to fulfill their functions of explaining why theaccused was convicted or acquitted, providing public accountability and permitting effective appellate review” (see para. 15 of R. v.R.E.M.). [4] My colleagues’ main concern is the trial judge failed to follow the framework set out in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 (QL), in that, having accepted part of the accused’s testimony, the trial

judge had an obligation to explain why the accused’s evidence nonetheless did not raise a reasonable doubt. In the alternative, theymaintain that, in the face of inconsistencies in the evidence of Crown witnesses, the trial judge failed to explain, at the third stage of theW.(

D) test, why the totality of the evidence nonetheless proved guilt beyond a reasonable doubt. They conclude the trial judge’s failure toprovide a W.(

D) analysis constitutes an error of law which requires a new trial. [5] For the purposes of ss. 677 and 693(1)(

a) of the Criminal Code, the question of law upon which I dissent is asfollows: “Where an accused testifies and credibility issues arise, does the trial judge’s failure to verbalize the framework set out in W.(D.) constitute an error of law that requires a new trial?” [6] In addition, my colleagues conclude the trial judge erroneously applied a subjective view of what isreasonable in disciplining a child contrary to the objective standard which must be applied as enunciated in Canadian Foundation forChildren, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76.

They maintain the trial judge applied thewrong test in determining whether the spanking was “reasonable in the circumstances” and that such error of law also militates in favourof setting aside the guilty verdict and ordering a new trial. [7] Before elaborating on my reasons for dismissing the appeal, I wish to explain why I do not agree with mycolleagues in their approach to this case. I. The W.(D.) error [8] This trial took place before a judge alone and not before a court composed of a judge and jury. In a jury trial,the judge must provide jurors with a road map on “their journey towards a verdict”.

In a case before judge alone, “[r]easons forjudgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion.They are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching averdict” (see R. v. Morrissey, (ON CA), [1995] O.J. No. 639 (C.A.) (QL) at para. 30, confirmed in R. v. R.E.M., atpara. 18). Indeed, to impose such a requirement on trial judges would have a serious negative impact by slowing “the system of justiceimmeasurably” (see R. v.

Burns, (SCC), [1994] 1 S.C.R. 656, [1994] S.C.J. No. 30 (QL) at para. 18). [9] My colleagues would impose upon a trial judge an obligation to complete a W.(D.) analysis and verbalize thereasons why he or she does not believe the accused’s version of events and why such evidence does not raise a reasonable doubt in thejudge’s mind. Furthermore, they would impose upon the trial judge an obligation to explain how, on the basis of the evidence acceptedby him or her, the Crown has succeeded in establishing the guilt of the accused beyond a reasonable doubt. [10] The jurisprudence does not support such an obligation.

It is now generally understood, even in a trial beforejudge and jury, let alone before a judge alone, that the failure expressly to articulate the word formula of W.(D.) is not fatal. Specifically,in a case before judge alone, “what must appear […] from the reasons as a whole, is the trial judge’s clear understanding of therelationship between reasonable doubt and the assessment of credibility and its application to the case at hand” (see R. v. Wadforth, 2009ONCA 716, [2009] O.J. No. 4176 (QL) at para. 50).

Put another way, what is important is that it is clear in reading the trial judge’sreasons for judgment that he or she understood that, despite the rejection of the accused’s evidence, the burden of proof continued toreside with the Crown to establish the essential ingredients of the offence charged and did not travel to the accused. [11] In my view, the trial judge’s failure to use W.(D.) in her reasons for judgment is not fatal, nor is it an error oflaw. The contrary view of my colleagues on this point is precisely what prompted my dissenting reasons for judgment.

This being said, areviewing court must be satisfied that the trial judge did not proceed to find guilt without being satisfied beyond a reasonable doubt, onthe basis of the evidence he or she accepted, that the accused was guilty of the offence charged. [12] Our role is to look at the trial judge’s reasons for judgment as a whole in light of the evidence and thearguments at trial (see Sheehan v. R., 2010 NBCA 85, 366 N.B.R. (2d) 160 at para. 12). We are also entitled to assume the trial judge iscognizant of the concepts of the presumption of innocence, reasonable doubt and the well-known W.(D.) formula.

Briefly put, “trialjudges are not required to deal with every aspect of every case in their reasons for judgment; they are presumed to know the law” (seeLosier v. Losier (1994), (NB CA), 155 N.B.R. (2d) 8, [1994] N.B.J. No. 534 (C.A.) (QL) at para. 11; R. v. C.L.Y.,2008 SCC 2, [2008] 1 S.C.R. 5 at para. 11 and Burns at para. 18). [13] My colleagues are of the view that the trial judge failed to properly apply the reasonable doubt standard by

simply accepting the testimony of the Crown witnesses over the appellant’s testimony without explaining why this was so. In their view, it was incumbent in a case of this nature for the trial judge to proceed to an analysis of the inconsistencies found in the testimony of the Crown witnesses and some of the consistency of their evidence with the testimony of the appellant.

They maintain the failure to do so indicates the trial judge erred in law in doing what W.(D.) was designed to prevent, namely, to proceed to find guilt on the basis of the rejection of the accused’s testimony without resorting to the evidence as a whole to determine if the Crown had satisfied the onus of proving guilt beyond a reasonable doubt.

Briefly put, the trial judge would simply have equated guilt with the rejection of the appellant’s version of events, an error that would have been avoided had the W.(D.) formula been adhered to. [ 14 ] In my view, there is no indication the trial judge failed to properly apply the reasonable doubt standard despite her silence with respect to W.(D.) . As mentioned, the only issue was whether the appellant’s spanking was reasonable under the circumstances.

The trial judge reviewed in great detail the evidence of the appellant that he had hit the child only two or three times over his covered buttock after hitting his own bare legs to warn the child of the upcoming spanking. The trial judge also reviewed the evidence of the Crown witnesses and accepted parts of their evidence that the appellant had in fact hit the child between 10 to 16 times while the child was screaming in apparent pain. They were troubled to such an extent by what they saw and heard that they decided to call the police.

In light of that evidence, the trial judge simply did not believe the appellant’s version of events and found the spanking to have been unreasonable under the circumstances.

In my view, when the reasons for judgment are read as a whole, there is no indication the trial judge failed to understand “the substance of the critical relationship between reasonable doubt and the assessment of credibility” ( Wadforth at para. 57 ). [ 15 ] I take the liberty of reproducing relevant excepts of some of the principles to keep in mind when considering the adequacy of reasons for judgment generally, and questions of credibility in particular. Those principles were considered in Sheehan , relying upon R. v.

R.E.M. : These purposes [for which reasons are delivered] are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. The decision of the Ontario Court of Appeal in Morrissey predates the decision of this Court establishing a duty to give reasons in Sheppard . But the description in Morrissey of the object of a trial judge’s reasons is apt.

Doherty J.A. in Morrissey , at p. 525, puts it this way: “In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision” (emphasis added). What is required is a logical connection between the “what” -- the verdict -- and the “why” -- the basis for the verdict.

The foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded. [Emphasis in original.] […] The trial judge should not be found to have erred in law for failing to describe every consideration leading to a finding of credibility, or to the conclusion of guilt or innocence. Nor should error of law be found because the trial judge has failed to reconcile every frailty in the evidence or allude to every relevant principle of law. Reasonable inferences need not be spelled out.

For example if, in a case that turns on credibility, a trial judge explains that he or she has rejected the accused’s evidence, but fails to state that he or she has a reasonable doubt, this does not constitute an error of law; in such a case the conviction itself raises an inference that the accused’s evidence failed to raise a reasonable doubt. […] Appellate courts must ask themselves the critical question set out in Sheppard : do the trial judge’s reasons, considered in the context of the evidentiary record, the live issues as they emerged at trial and the submissions of counsel, deprive the appellant of the right to meaningful appellate review?

To conduct meaningful appellate review, the court must be able to discern the foundation of the conviction. Essential findings of credibility must have been made, and critical issues of law must have been resolved.

If the appellate court concludes that the trial judge on the record as a whole did not deal with the substance of the critical issues on the case (as was the case in Sheppard and Dinardo ), then, and then only, is it entitled to conclude that the deficiency of the reasons constitute error in law. [para. 12] [ 16 ] In my view, the reasoning adopted by the trial judge to reject the defence raised by the appellant is unequivocal and her decision is based on facts amply supported by the evidence she accepted.

In addition, the reasons for her decision are sufficiently articulated to allow meaningful appellate scrutiny. II. Did the trial judge use a subjective test to determine the reasonableness of the discipline imposed?

[17] My colleagues maintain that the trial judge’s statement “no spanking should go on and on to the point thatstrangers pick up the phone and call the police” is a clear indication that she applied a subjective standard on the issue of reasonableness.With respect, I do not agree with such a proposition. [18] In Canadian Foundation, the Supreme Court does say that “[i]t is wrong for law enforcement officers orjudges to apply their own subjective view of what is ‘reasonable under the circumstances’” and that “the test is objective” (para.40).

TheCourt made the comment when considering the Foundation’s argument on the proper test to apply. In addressing the Foundation’sposition the Court provides some insight as to how the application of an objective test is applied to the issue of reasonableness of thediscipline imposed: […] It [the Foundation] argues that police officers, prosecutors and judges too often assess the reasonableness of corrective force byreference to their personal experiences and beliefs, rendering enforcement of s. 43 arbitrary and subjective. In support, it points to thedecision of the Manitoba Court of Appeal in 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 discipline administered to the boy in question in these proceedings [a kick to the rear] was mild indeedcompared to the discipline I received in my home”. […]. Generally, s. 43 exempts from criminal sanction only minor corrective force of a transitory and trifling nature. On the basis ofcurrent expert consensus, it does not apply to corporal punishment of children under two or teenagers. Degrading, inhuman or harmfulconduct is not protected.

Discipline by the use of objects or blows or slaps to the head is unreasonable. Teachers may reasonably applyforce to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment. Coupled withthe requirement that the conduct be corrective, which rules out conduct stemming from the caregiver’s frustration, loss of temper orabusive personality, a consistent picture emerges of the area covered by s. 43. It is wrong for law enforcement officers or judges to applytheir own subjective views of what is “reasonable under the circumstances”; the test is objective.

The question must be considered incontext and in light of all the circumstances of the case. The gravity of the precipitating event is not relevant. [paras. 26 and 40] [19] In my view, there is nothing to suggest that the trial judge assessed the reasonableness of the corrective forceused by referring to her personal experiences. On the contrary, her decision was reached in light of the circumstances of the case andbased upon the evidence she accepted.

Her reference to the call made to the police was nothing else but another circumstance to consideron the issue of reasonableness of the discipline imposed by the appellant. [20] For these reasons, I would dismiss the appeal. ______________________________​​​​​​​____ ALEXANDRE DESCHÊNES, J.A. The judgment of Turnbull and Bell, JJ.A. was delivered by BELL, J.A. I. Introduction and

Summary [21] On June 21, 2010 a judge of the Provincial Court found the appellant guilty of indictable assault arising froman incident wherein he spanked his son, S.C.S. On August 18, 2010 the trial judge granted the appellant a conditional discharge pursuantto s. 730 of the Criminal Code R.S.C. 1985, c. C-46, one of the terms of which is that he serve a period of probation. The appellantappeals the guilty finding.

[ 22 ] For the reasons set out below, I am of the view the trial judge erred by misapplying the reasonable doubt standard and by applying a subjective standard in her consideration of whether s. 43 of the Code operates to absolve the appellant from criminal liability. I would allow the appeal and order a new trial. A. The appellant’s version of the incident [ 23 ] On August 1, 2009 at approximately 1:00 p.m. the appellant, his spouse, their 6-year-old son S.C.S. and his spouse’s two other children, were travelling by car from Durham Bridge to a museum in Fredericton.

The appellant’s spouse was driving the car, the appellant was in the front passenger seat and the children were in the back seats. For the first part of the journey, S.C.S. was sitting in a booster seat directly behind his mother. [ 24 ] The family stopped at the Toronto Dominion Bank on Queen Street. At that time, S.C.S. was bickering with his brother, yelling at passing cars saying “Help me, help me” and kicking the back of his mother’s seat. As a result, the appellant removed S.C.S. to the seat behind him. As the family continued its journey, S.C.S.’s behaviour worsened.

He was now unbuckling his seatbelt, throwing things, and yelling and screaming. When all efforts by the appellant to calm the child failed, his spouse stopped at the Connaught Street School parking lot. The appellant told S.C.S. that unless he stopped misbehaving, he would have to be spanked. [ 25 ] With some difficultly, the appellant removed S.C.S. from his booster seat and proceeded to put him over his knee. S.C.S. resisted and screamed profusely and loudly.

According to the appellant, he continued to try to reason with the child by telling him that if he stopped screaming, hitting and throwing he would not be spanked. The child continued to misbehave. The appellant says he then struck his own leg, thereby making a loud sound which momentarily quieted the child. The appellant says he then struck his own leg again without success in calming the child. He then told S.C.S. that he would have to apply a “real spanking”. He says he then spanked S.C.S. two or three times while stopping between spankings to plead with the child.

The appellant says he held S.C.S. over his knee while he administered the spanking to the clothed buttocks of the child. After the child’s behaviour improved, the appellant put him back in his seat and buckled the seat belt. He then got back into the front passenger seat of the car. The appellant says he was calm and controlled throughout the time he administered discipline. No marks or bruising of any kind were found on S.C.S. when he was examined by social work officials approximately 8 hours later that same day.

No marks or bruising were noticed by S.C.S’s grandmother who took him swimming that same afternoon. [ 26 ] The appellant related the same sequence of events to the social workers that day, police upon arrest 12 days later, and the trial judge. B. The Respondent’s version of the incident [ 27 ] Crown witness, Millicent Boldon, lived in an apartment building near the Connaught Street School. She testified that she heard a child crying and her first thought was that the child had fallen off a swing. When she looked out her bedroom door which exits onto a patio, she saw a man slapping a child.

She stated the man was facing her and that she could hear the child yelling, “you’re beating me senseless. Stop. You’re hurting me”. She saw the man hit the child at least 10 times. She first heard what she believed to be a bare hand hitting bare legs, and then a more muffled sound as if hitting pants. [Emphasis added.] [ 28 ] Crown witness Jim Burns was visiting his sister, Ms. Boldon, that same afternoon. He testified he was called into the bedroom by Ms. Boldon and that he could hear the child before he got there.

When he was in a position to see the child, he saw a dozen “blows” and twice yelled “is there a problem”. The person administering the “blows” did not respond. Mr. Burns also heard the child say “you’re beating me senseless”. After the initial dozen blows he says there was a lull and then a “half” dozen more. He said that after the man put the child back in the car he put his hand on the roof of the car to catch his breath. Mr. Burns could not say whether the man was striking the child or himself as the man was turned away from him . [Emphasis added] C.

The decision below [ 29 ] The trial judge rejected the appellant’s version that he only struck his child two or three times. She concluded he struck the child over and over as alleged by the two Crown witnesses. She found the appellant’s testimony that he was hitting himself was not credible and concluded it was “ludicrous” that he would hit himself “so many times”. She said she accepted Ms. Boldon’s and Mr. Burns’ versions over the appellant’s. In reaching her conclusion she said “no spanking should go on and on to the point that strangers pick up the phone and call the police”.

Although she found the force applied was of a corrective nature, its duration was, in her

view, unreasonable. She concluded s. 43 of the Criminal Code, which permits the use of force for reasonable physical correction, didnot provide a defence to the appellant in the circumstances. II. Grounds of Appeal [30] The appellant raises several grounds of appeal.

However, I consider it necessary to deal only with thefollowing: (1) whether the trial judge failed to provide adequate reasons for her conclusions regarding credibility and reasonable doubt;and (2) whether she erred in law by applying a subjective test to determine whether the appellant applied reasonable correction ascontemplated by s. 43 of the Code. III. Analysis [31] This Court’s role is not to retry cases, nor is it to substitute its view of the evidence for the view of the trialjudge.

However, it is required to consider whether the court below has committed a palpable and overriding error of fact, or an error inthe application of law to the facts (see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235). A. Whether the trial judge failed to provide adequate reasons for her conclusions on credibility and reasonable doubt. [32] Reasons for judgment are the primary mechanism by which judges account to the parties and to the public forthe decisions they make.

Trial courts can only be held to account if the reasons for their adjudication are transparent and accessible to thepublic and to the appellate court (see R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869). This duty applies to a trial judge’s credibilityassessment of a witness, as much as to his or her fact-finding and legal analysis. In R. v.

Sheppard, the Court states: [W]here there is confused and contradictory evidence, the trial judge should give reasons for his or her conclusions. [para. 42] [33] This duty is further enhanced in two situations: First, in cases where the sole issue is credibility; and second,where the outcome of the case is largely dependent upon the contradictory testimony of witnesses. In assessing credibility, trial judgesmust often compare the testimony of the accused to that of other witnesses.

A failure to give reasons for a credibility assessment maycreate the impression that the trial judge has simply chosen which testimony he or she prefers and has not fully considered the concept ofproof beyond a reasonable doubt: R. v. V.K. (B.C.C.A.), [1991] B.C.J. No. 3913 (C.A.) (QL); R. v. W.(D.), (SCC),[1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 (QL). [34] In order to demonstrate a correct application of the reasonable doubt standard when credibility is an issue, trialjudges should follow the framework set out in W.(D.): 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.” [para. 28]

[35] Therefore, during the W.(D.) analysis, if a trial judge accepts part of the accused’s testimony, in order toconvict, he or she must explain at the second stage of the W.(D). test, why the accused’s evidence nonetheless does not raise a reasonabledoubt. Alternatively, if a trial judge perceives inconsistencies in the complainant’s evidence, he or she must explain, at the third stage ofthe W.D. test, why the totality of the evidence nonetheless proves guilt beyond a reasonable doubt in order to convict (see R. v.Gharabaghi, 2005 BCSC 1641, [2005] B.C.J.

No. 2568 (QL)). [36] Choosing one testimony over another without engaging in the W.(D). analysis shifts the burden of proof ontothe appellant to explain away the other witnesses’ evidence (see R. v. Y.M., (ON CA), [2004] O.J. No. 2001 (C.A.)(QL). As a result, to ensure fairness of the process the trial judge must explain to the parties why he or she did not accept the accused’stestimony, or at least find that it did not raise a reasonable doubt. If this is not done, it constitutes an error of law, which results in a newtrial. B.

Application [37] In the present case, the trial judge neither implicitly nor explicitly followed the W.(D.) framework. A review ofher reasons reveals that this is not purely a question of semantics in which she failed to expressly follow each stage. Rather, her reasonsonly indicate an adherence to the first stage of the W.(D). analysis when she said that she “accepts the testimony of the witnesses overMr. Scott’s testimony”.

In terms of the second and third stages, she did not state why the accused’s evidence did not raise a reasonabledoubt, or why the remaining evidence convinced her of the accused’s guilt beyond a reasonable doubt. Her reasons, or lack thereof,demonstrate a failure to properly apply the reasonable doubt standard. [38] The trial judge’s analysis of the testimony does not indicate why the appellant’s testimony was not credible,nor why the Crown witnesses’ testimony was believable.

The only caution she makes about the Crown witnesses’ credibility is that theycould have “been partly traumatized by [the child’s] yelling and exaggerating and the court [will] take that into consideration becauselots of times children will yell out things and parents are quite mortified by the things that they will yell out which are not true at all”. [39] There is even less analysis of the credibility or reliability of the appellant’s testimony. This failure is significantgiven the following factors. First, Ms.

Boldon testified that she “heard the hand hitting bare legs and then the hand hitting the pants”.Since the child’s buttocks were covered, Ms. Boldon’s testimony is at least partly consistent with the appellant’s when he says that hemay have been wearing short pants. The trial judge failed to consider this potential consistency between the testimony of Ms. Boldonand the appellant. This evidence may have affected the trial judge’s conclusion regarding the duration of the punishment, which wascrucial to her finding of guilt.

Second, the trial judge did not make any reference to the conflicting testimonies of the two principalCrown witnesses, who, although standing at the same patio, saw different versions of what unfolded. Ms. Boldon said the appellant wasfacing her, while Mr. Burns says he had his back toward him. Ms. Boldon said the appellant hit only the child, whereas Mr. Burnsacknowledged he could not see whether the appellant was striking the child or himself. Given Mr.

Burns’ uncertainty as to who wasbeing hit and the appellant’s testimony, it became very important that the trial judge, in providing her reasons for decision, demonstratethat she addressed her mind to the third stage of the W.(D). analysis. Finally, the trial judge failed to provide reasons, using the W.(D).framework, to the apparent inconsistency that arises from the lack of marks or bruising on the child given the testimony of Ms. Boldonabout slaps to the bare skin and the testimony of Mr.

Burns that he witnessed 18 “blows”. [40] Overall, the trial judge’s approach indicates she did not apply the third stage of the W.(D.) analysis todemonstrate why she was convinced by the totality of the evidence of the appellant’s guilt beyond a reasonable doubt. Instead, heranalysis consisted of choosing between two versions of the event, something she is not entitled to do. Her failure to apply the third stageof the W.(D). analysis to all of the evidence demonstrates she ignored the Crown’s burden to prove guilt beyond a reasonable doubt. C.

Application of a subjective test to determine “ reasonable” correction [41] Pursuant to s. 43 of the Code, parents and teachers are permitted to physically correct children provided theforce does not exceed that which is reasonable under the circumstances. The

section reads as follows:

Protection of Persons in Authority Correction of child by force 43. Every schoolteacher, parent or person standing in 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. R.S., c. C-34, s. 43. Protection des personnes exerçant l’autorité Discipline des enfants 43.

Tout instituteur, père ou mère, ou toute personne qui remplace le père ou la mère, est fondé à employer la force pour corriger un élève ou un enfant, selon le cas, confié à ses soins, pourvu que la force ne dépasse pas la mesure raisonnable dans les circonstances. S.R., ch. C-34, art. 43. [ 42 ] The purpose of s. 43 is to provide some protection to school teachers and parents who find it necessary to use force by way of correction. In addition to identifying who benefits from this protection, the

section also identifies the conduct that is protected. First, the conduct must be “by way of correction” and, second, it must be “reasonable under the circumstances”. It is undisputed the appellant is the parent of S.C.S. Importantly, the trial judge concluded that the appellant administered the punishment by way of correction. In Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General) 2004 SCC 4 , [2004] 1 S.C.R. 76 , the Court states that force “by way of correction” must be for an educative or disciplinary purpose.

The Court imposes other parameters on the use of force in relation to the correction of children, only one of which is relevant for purposes of the present discussion, that being that the reasonableness of the correction must be measured against an objective standard.

The Court stated: […] It is wrong for law enforcement officers or judges to apply their own subjective views of what is “reasonable under the circumstances”; the test is objective. [para. 40] [ 43 ] When the trial judge stated that “no spanking should go on and on to the point that strangers pick up the phone and call the police” I am of the view she applied a subjective standard. Ms. Boldon’s decision to pick up the telephone and call the police in those circumstances can be nothing but a subjective one.

She would not, at that point, have benefited from all the attributes that convert a subjective decision into an objective one: for example, she would not have considered the appellant’s version of the incident, whether the child’s buttocks were covered, whether she might be mistaken about whether all slaps were administered to the child and whether her brother’s observations and conclusions were identical to her own. If the trial judge applied the correct test when she speculated about what strangers might do, logic would hold that if she had not called the police, the force administered was somehow reasonable.

Obviously, some people faced with the same situation as that presented to Ms. Boldon might have called the police earlier and others might never have called. [ 44 ] In this case the trial judge’s sole basis for convicting the appellant flowed from the duration of the punishment. In my view she applied a subjective standard by delegating to an onlooker the determination of guilt or innocence. [ 45 ] For all of these reasons, I would allow the appeal and order a new trial. ______________________________ B. RICHARD BELL, J.A.

I CONCUR: ______________________________ WALLACE S. TURNBULL, J.A.