Her Majesty the Queen - v. -, 2016 SKPC 109

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 109 Date: June 10, 2016 Information: 36863655 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - T. D. Appearing: Ms. Maureen Longworth For the Crown Ms.

Estelle Hjertaas For the Accused Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act. DECISION G. M. MORIN, J INTRODUCTION [ 1 ] T.D. is young person charged with committing an assault with a weapon, contrary to

section 267 (

a) of the Criminal Code , and committing an assault causing bodily harm, contrary to

section 267 (b), both on Kilyn Patoki.

[ 2 ] T.D. was residing at E[…] in Prince Albert, a therapeutic group home for Saskatchewan’s vulnerable youth. Kilyn Patoki was employed by E[…] as a youth worker. FACTS [ 3 ] T.D. was a 16-year-old youth with a history of abuse. She was under the care of the Ministry of Social Services and was placed at E[…] by her social worker. On December 21, 2015, T.D. was very upset due to an ongoing incident concerning a stolen cellphone. T.D. went into the bedroom of another youth resident, who was her friend. The youth worker, Mr.

Patoki, came to the room and advised T.D. that she has to leave this resident’s room and return to her own. T.D. refused, indicating that she wanted to stay and talk to her friend. The youth worker told T.D. again that she either had to leave willingly or that he would have to escort her out. When T.D. refused again, the youth worker grabbed T.D.’s arms and pulled her out the room. [ 4 ] Just as they were outside the door of the bedroom, T.D. turned around and threw an opened can of pop at Mr. Patoki’s face. He then tried to restrain T.D. and got her onto the floor. When T.D. was on the floor, she punched Mr.

Patoki on the lips. The resident who was T.D.’s friend got involved by trying to get the youth worker off of T.D. Other youth workers got involved and successfully got the resident out of the situation. At this point, T.D. said that she was fine and that she wanted to go to her room. T.D. was allowed to go to her room and no further incident occurred. [ 5 ] The youth workers had a debriefing session after the incident. Afterward, some wrote internal incident reports for E[…]. The police were notified.

A few hours later, they attended E[…], obtained witness statements and arrested T.D. for assault with a weapon and assault causing bodily harm. ISSUES 1) Does a youth care worker at E[…] qualify as person standing in place of a parent as contemplated by

section 43 of the Criminal Code ? 2) If no, then is the defence of self-defence available to the young accused? LAW [ 6 ] The applicable sections of the Criminal Code include: 267. Everyone who, in committing an assault, (

a) carries, uses or threatens to use a weapon or an imitation thereof. Or (

b) causes bodily harm to the complainant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months. 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. 34(1). A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances.

EVIDENCE [ 7 ] The Crown had three witnesses – Kilyn Patoki, Brenda Freed, and Jenna Bencharski – who were all youth care workers employed at E[…]. T.D. testified for the defence. [ 8 ] While the general picture of what happened remains unchanged throughout the testimonies of these four individuals, there are slight discrepancies in the sequence of events and in the amount as well as frequency of force applied by the various parties involved. KILYN PATOKI’S TESTIMONY [ 9 ] Kilyn Patoki, the complainant, testified that he saw T.D. go into another youth resident’s bedroom and slam the door.

He went into the bedroom and told T.D. that she could not be in another resident’s bedroom with the door closed. Mr. Patoki stated that T.D. started to yell and swear. He told her again that she would have to leave willingly on her own or he would have to escort her out of the room. T.D. refused again. He described T.D. as having been “escalated”, a term youth care workers use to describe someone who is “getting more agitated”. At that point, Mr. Patoki said that he grabbed her arm and tried to escort her out of the room.

When he got her just outside of the bedroom door, he claimed that T.D. threw an aluminum can of pop at his face. He also claimed that she followed by punching him once in the lips and once in the left eye with closed fist. Mr. Patoki then decided to restrain her and got her onto the floor. During this time, the other youth resident, who was T.D.’s friend, got involved by trying to get the youth care workers off of T.D. Other youth care workers got involved and successfully got T.D.’s friend out of the situation.

The youth workers met up after the incident and held a debriefing meeting prior to the police’s arrival. [ 10 ] Concerning Mr. Patoki’s injuries, he testified he received a minor cut to his upper lip, a black eye and a sprained finger. He clarified that the sprained finger was caught in the door frame during the incident and was not directly caused by T.D. Upon the advice of the doctor, Mr. Patoki did not require any medical treatment for his injuries, except having to immobilize the finger for two weeks. The sprained finger healed completely after three months. [ 11 ] Mr.

Patoki was also questioned about E[…] policy. In relation to applying force on a resident, Mr. Patoki stated that youth workers are permitted to escort or to restrain a youth resident if it is deemed that they are an immediate risk to themselves or to others (including youth workers). In addition, residents are not allowed to be in each other’s room with the door closed, especially residents who are considered to be a higher risk for suicide, drug abuse, or running away. He stated that T.D. was considered high-risk due to a recent runaway incident. When asked what specifically in T.D.’s situation caused Mr.

Patoki to decide that she was an immediate threat to herself or others, he said that it was her “emotional headspace”. He was afraid that she would further agitate the other residents and/or run away from E[…]. [ 12 ] Finally, Mr. Patoki admitted that there had been one other physical altercation between him and T.D. in the past. This occurred when she first arrived at E[…] in Prince Albert. She was in a male resident’s room and he asked her to leave. T.D. refused and Mr. Patoki grabbed her arm to escort her out. He claimed that she struck him. He then tried to restrain her.

During this altercation, T.D. hit her head on the door and sustained an injury on her head as a result. [ 13 ] On cross-examination, Mr. Patoki advised the court that T.D. and the other female resident have been permitted to be in each other’s bedroom at the same time. This was because the youth workers have viewed the two youths to be good company for one another and that an exception made for the two was reasonable. Mr. Patoki also admitted that it is E[…] policy to do everything to resolve an issue before physical intervention is taken.

He further stated that other methods are available and have been used during other incidents, which include getting a different staff member to talk to the youth or allowing the youth time to cool off while the door remains open. BRENDA FREED’S TESTMIMONY [ 14 ] After Mr. Patoki’s testimony, Brenda Freed was called to the stand. Ms. Freed is a youth care worker at E[…] as well as the program manager at this particular E[…] location. Her recollection of the incident was similar to that of Mr. Patoki, except she was not present for the portion which took place inside the resident’s room.

She did not indicate how many punches occurred. Ms. Freed mentioned that both T.D. and the other youth resident were normally well-behaved and compliant. She also confirmed that escort and restraints are methods of last resort.

JENNA BENCHARSKI’S TESTIMONY [15] The last witness from the Crown is Jenna Bencharski, who is another youth care worker at E[…]. Her testimony is the same asMs. Freed and she did not add anything else new. She did not see what happened between Mr. Patoki and T.D. inside the room but shedid observe the throwing of the can of pop and the punch. She also did not indicate how many punches occurred. T.D.’S TESTIMONY [16] Finally, T.D. testified. She admitted to having thrown the can of pop at Mr. Patoki’s face and to having punched his lips. Shewas adamant that she did not punch him in the eye.

T.D. explained that, on the day of the incident, someone had accused her of stealinga cellphone and that she would be charged for the theft. She explained that, at the time, she was in a relationship with an abusive andmanipulative boyfriend, who took the cellphone. T.D. said that she went to the other youth’s bedroom because that was her friend andshe wanted to talk to her. She was scared and was hoping that her friend, who knows about the boyfriend, could convince others that shedid not steal the phone. [17] T.D. described that the door remained opened and she was standing near the doorway inside the room. Mr.

Patoki came in andtold her to leave. She admitted that she refused but stated that she did not yell or swear. When he told her again and she refused thesecond time, he grabbed both of her arms and pulled her out of the room. T.D. turned around and threw the can of pop at him. Shedescribed that when he restrained her by getting her onto the floor, she punched him once in the lips. [18] Both on examination and cross-examination, T.D. was consistent in explaining that she was not trying to run away.

She said thatwould not have been possible because the youth workers took away her shoes, it was in the middle of a winter, and she was not planningon jumping out a second floor bedroom. When asked why she did it, T.D. stated that she was very upset, hurt and scared. She explainedthat she did not feel like she was doing anything wrong by being in her friend’s room and talking to her, as it was something she had beenallowed to do in the past. She indicated quite strongly that she did not feel that Mr. Patoki had the right to touch her and that she had theright to defend herself.

She described a similar previous incident with him where he escorted her out of a room and their struggle causedher head to bleed from hitting the door. T.D. also talked about other abusive relationships she had in the past, including that with herfather and ex-boyfriends, and how they have caused her to be afraid. T.D. explained that she had apologized soon after the incident forhurting Mr. Patoki. She stated that she does not like hurting anyone. ANALYSIS 1) Does a youth care worker at E[…] qualify as person standing in place of a parent as contemplated by

section 43 ofthe Criminal Code? [19] Saskatchewan authority in this area is set out in the Saskatchewan Court of Queen’s Bench decision of R v F. (V.A.) (1989), (SK KB), 53 CCC (3d) 74 [F.(V.A.)]. [20] The facts in F.(V.A.) are not too different from that of T.D. in the present case. It involved a youth charged with committing anassault on Barrie Payson, a youth worker with Kenosee Camp, which was an open custody facility for young offenders. The youth wasasked to cut wood and he refused. Mr. Payson told the youth that if he did not work, he had to remain within the sight of the youthworkers.

The accused then built a makeshift hut from wood slabs and proceeded to crawl in and have a smoke. Mr. Payson ordered theyouth to leave the hut; the youth refused. Mr. Payson and another youth worker then pulled the youth out of the hut, which led the youthto threaten the workers with a small log he had in his hand. While he was in the hold of Payson, he had obtained a small stick that heused to strike Payson several times before the scuffle ended.

Even though the evidence established that the youth did apply force to theyouth worker, the trial judge first found that the youth worker was found to be not standing in place of a parent and therefore did not haveauthority to apply force to the accused pursuant to

section 43 of Criminal Code. As such, the youth was entitled to defend himself andthus, not guilty of assault. [21] On appeal to the Court of Queen’s Bench, in addition to

section 43 authority, the Crown advanced several other grounds onwhich it submitted Mr. Payson could rely to apply force to the accused. Gerein J. (as he then was) considered each of the grounds. [22] First, he upheld the trial judge’s conclusion regarding

section 43. He cited Ogg-Moss v The Queen, (SCC),

[1984] 2 SCR 173[Ogg-Moss], where the Supreme Court of Canada discussed in some detail the meaning and application of

section 43. He concluded: 7. What is of particular importance is that it was held that a person could stand in the place of a parent only if that status wasobtained in one of two manners. The first is if the person assumes parental obligations, including financial. The second is if there is adelegation of parental rights by the natural parent. See comments of Dickson J. (now C.J.C.) commencing at p. 312 of the report. 8. In the instant case Payson did not assume the obligations of a parent; nor was there any delegation of parental rights by a naturalparent.

Accordingly, Payson did not come within the scope of s. 43 of the Criminal Code. [23] The other grounds of the Crown’s appeal were relating authority to apply force under

section 25 of the Criminal Code(corrections officers’ authority to use force to enforce institutional rules) and

section 47 of The Corrections Act then in force, and whichis similar to

section 10 of the Act (officer and employee working under the authority of the Act has power to exercise custodial authorityover and is a lawful guardian of persons committed to a correctional facility authorized under this Act.) [24] Assuming the existence of a guard-inmate relationship, Gerein J. observed Mr. Payson would therefore have authority undersection 47 to exercise custodial authority.

Further, he would also then meet the definition of “peace officer” within the meaning ofsection 25 of the Criminal Code. [25] Nevertheless, in applying the law, Gerein J. was not convinced, due to the lack of evidence – that Mr. Payson – as a youth workerrather than as a prison guard in the usual sense of the term – had custodial authority over the youth.

Absent evidence proving that Mr.Payson was in a custodial role tendered by the Crown, or that Kenosee Youth Camp was anything more than “a church camp”, or thatthe accused was even in custody, Gerein J. was compelled to dismiss the Crown’s appeal and uphold the finding of not guilty. [26] Gerein J.’s decision was followed recently by the Saskatchewan Court of Appeal in R v Nome, 2015 SKCA 73. As the facts andissues were different in Nome, the Court of Appeal did not address

section 43. However, the Court followed the instructive frameworkdeveloped in F.(V.A.) that dealt with the use of force in a guard-inmate relationship. [27] I have also had the opportunity to review the cases cited by counsels. The Defence cited R v G.(J.), 2011 ABPC 3, from theAlberta Provincial Court, which involved a young person charged with assault against two youth care counsellors at the YellowheadYouth Centre, which has been designated as a secure service facility in accordance with

section 3 of the Child, Youth and FamilyEnhancement Regulations. The Alberta Court cited the Saskatchewan Court of Queen’s Bench decision in F.(V.A.) and reached a similarconclusion. The Alberta Court found that there was no evidence tendered by the Crown to demonstrate that the youth care counsellors atthe Centre were standing in place of parents pursuant to

section 43. As such, the Court concluded that the youth counsellors had in factassaulted the youth in applying restraints to her, and that those restraints were not for the purpose of preventing harm to her or to others,but were for the purpose of preventing her from leaving the centre.

Since there is no evidence that they had the lawful authority to do so,the actions of the counsellors constituted an assault and cannot be justified on the basis of self-defence (paras 25-26). [28] The Crown submitted that R v Murphy, (1996) (BC CA), 108 CCC (3d) 414, 29 CR (4th) 321, from theBritish Columbia Court of Appeal is applicable to T.D.’s situation. Here, the Court found that a babysitter in charge of a child is aperson standing in the place of a parent for the purpose of s. 43.

With respect to Crown counsel, this decision differs greatly from T.D.’ssituation because there was evidence in Murphy that the parents had indeed authorized temporary delegation of parental authority to thebabysitter. No such evidence is available in T.D.’s case. [29] The onus is on the Crown to prove that parental powers were delegated to the particular person exercising corrective discipline. In application to T.D.’s case at bar, I find that there is no evidence to suggest that Mr. Patoki, acting as a youth care worker at E[…], hasauthority to apply correctional force to T.D. [30] Mr.

Patoki was not standing in place of a parent as contemplated by

section 43. As according to Ogg-Moss, this status could onlybe obtained if either

a) the person assumes parental obligations, including financial, or

b) if there is a delegation of parental rights by thenatural parent. There is no evidence provided by the Crown to suggest that Mr. Patoki or E[…] has assumed such status through eitherroute. E[…] is a group where T.D. was placed by her social worker, paid for by the Ministry of Social Services. [31] As well, because E[…] is not a correctional facility and Mr. Patoki was not acting as a correctional officer or peace officer as

contemplated in F.(V.A.) , Mr. Patoki also did not have authority to apply correctional force on T.D. as permitted by

section 25 of the Criminal Code or

section 10 of The Corrections Act. 2. If no, then is the defence of self-defence available to the young accused? [ 32 ] In order for the defence of self-defence to be available to T.D., it must first be determined whether Mr. Patoki’s use of force was reasonable. If it was reasonable, then it is not open to T.D. to resist and therefore, could not assert self-defence. [ 33 ] In F.(V.A.) , Gerein J. found that Mr.

Payson’s use of force was appropriate because the youth was putting himself in danger by smoking inside a hut, and that no other course of action was available to deal with the situation in a timely manner. He stated: 19. In the instant case the accused, being a juvenile, had placed himself in a dangerous situation. Payson, being the custodian and guardian of the accused, was authorized by law to ensure the physical wellbeing of the accused. This being so, the order was fit and proper and it was appropriate that the accused be physically removed from the dangerous situation.

No other course of action was feasible considering the necessity and urgency then prevailing. As only reasonable force was sued, it was not open to the accused to resist and he could not in law assert self-defence. [ 34 ] Even though the approach to analyzing the use of force by Gerein J. in his decision focused specifically on prison guards, I find it to be equally instructive for the purpose of this case: 18. Again, disobedience by an inmate does not automatically entitle a guard to apply force upon the inmate.

Each incident must be judged upon the particular facts, including the nature of the order, the nature of the disobedience, the consequences of the disobedience, both actual and potential, the circumstances of the inmate and the availability of other action as an alternative to the application of force […] [ 35 ] Also useful for the purpose of this analysis is a decision from Judge Turpel-Lafond (as she then was) in R v P. (C.J.), (1999) 42 WCB (2d) 142 (SKPC) . While the facts differ from the present case, the court or P. (C.J.) also asked similar questions.

That is, whether the youth facility workers followed the appropriate protocol for dealing with a youth in isolation? If not, was the youth provoked by the guards and acting in self defence? [ 36 ] Judge Turpel-Lafond concluded that the force applied was not appropriate in dealing with the situation because other non-violent and non-physical intervention approaches were available and yet never utilized. At para 58, she stated: I have already indicated, in reviewing Mr. Field’s evidence, that I find no authority in the policies filed with the Court for using extraordinary physical restraints for noise disturbance.

If I am wrong on this point, and some documentation exists that was not brought to the Court’s attention, I do acknowledge the Defence’s submission that even if the take down was an authorized use of restraint, other reasonable measures which are to be exhausted were not followed. The guards did engage in various Skinnerian strategies with C.J.P., such as blaring loud classical music and shutting off the lights.

However, the one-on-one supervision and personal counseling were not explored. [ 37 ] In T.D.’s case, all three testimonies from the E[…] youth workers indicate that it is their policy to use escort and restraint as a last resort. Physical intervention is only used in situations where the youth is determined to be an immediate risk to themselves or to others. Furthermore, Mr. Patoki testified that T.D. had been permitted to be in her friend’s room in the past because, in the youth worker’s opinion, the two were considered good support for each other.

Finally, he also advised the court that other options were available, including getting a different youth worker to resolve the situation or allowing the youth time to calm down. However, no explanation was given as to why these methods were not utilized. The workers alluded to the possibility that T.D.’s safety was of concern. [ 38 ] I find that there is no evidence that T.D. was a risk to herself or any other resident in the home.

I accept her statement that she was not considering running away because she had no shoes at that time, that it was winter outside, and that she was on the second floor with no potential escape route. I also accept that T.D. was upset and hurt, and that her intention was simply to talk to her friend. From her testimony, she believed that she was not breaking any rule, as she was doing what she had been allowed to do so in the past. [ 39 ] I was not convinced by Mr. Patoki’s testimony that no other option was available. T.D.’s actions did not illustrate that she was in any way harming herself or others around her.

Other measures were available to better handle this situation, including getting another youth worker to talk to T.D., or simply allowing T.D. time to calm down. Unfortunately, these options were not exhausted before the youth worker decided to escort and restrain T.D. by putting his hands on her and pulled her out of the room. My conclusion is further evidenced in Brenda Freed’s testimony when she indicated that T.D. was usually well-behaved and good-spirited. It would appear odd,

then, to resort so quickly to physical intervention. Therefore, I find that the youth worker’s use of force was neither reasonable nor appropriate in the circumstances. [ 40 ] Following from this, I have considered the relevant factors provided in section 34(2) of the Criminal Code and conclude that T.D.’s action was in self-defence. T.D.’s use of force was minimal as she was reacting to the situation initiated by the youth worker. She used the only means she had available at the time, which was an open drink she had in her hand. [ 41 ] I accept T.D.’s testimony that she did not punch Mr.

Patoki’s lips until he had restrained her onto the ground and that she only punched him once. Again, I find that this is a reasonable reaction from a scared and upset child who is forcibly held to the ground, especially when I consider the significant size and age difference between the two. The injuries sustained by the youth worker were minor, which included a small cut to the lip and a bruise on the eye. [ 42 ] I have also considered that T.D.’s reaction was impacted by her experience of various past abusive relationships in her life and compounded by the history of physical altercation between her and Mr.

Patoki. As T.D. emotionally stated in her testimony, she felt remorse for hurting the youth worker, but she remained strongly convinced that she did not want him to touch her. I am of the opinion that T.D.’s action was to defend herself against this unwanted touched. CONCLUSION [ 43 ] Based on the authorities discussed above and evidence available before me, I find that Mr. Patoki, a youth care worker at E[…], did not have authority to use correctional force on T.D.

The force applied was unreasonable and inappropriate in the circumstances of the situation as other measures were available to better resolve the situation. As such, T.D. was entitled to defend herself. Therefore, I would dismiss the charges of assault with a weapon and assault causing bodily harm against the young accused. Dated this 10 th day of June, A.D. 2016, at the City of Prince Albert, in the Province of Saskatchewan. ___________________________ G. M. Morin, J