R. v. C.S.O. Date:, 2012 BCPC 380

Citation: R. v. C.S.O. Date: 20121016 2012 BCPC 0380 File No: 92759 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.S.O. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Ms. K. Bouchard Counsel for the Accused: Mr. S. Tate Place of Hearing: Kamloops , B.C. Date of Hearing: July 10, 11 and September 19, 2012 Date of Judgment: October 16, 2012

[ 1 ] C.S.O. is charged with assault causing bodily harm to T.H. T.H. is the biological daughter of Mr. O. At the time of the offence, T.H. was three. [ 2 ] T.H. is also the biological daughter of C.H. Ms. C.H. is a stay at home mother with one other child. Ms. C.H.’s relationship with Mr. O. ended in 2008 before the birth of T.H. Ms. C.H. has custody of T.H. and the only parent listed on the birth certificate is her. No custody order has ever been made granting custody to Mr. O. However, T.H. refers to Mr.

O as dad or daddy. [ 3 ] Before the incident in question, T.H. would see her father off and on, every two weeks and sometimes once a week. On those visits, they would watch television or go to the park. For the majority of the visits, Ms. C.H. would be present with them. Sometimes the walks they took on their own would last two hours. Sometimes Mr. O. would stay over for the night. Up until the incident, T.H. had never stayed overnight alone with her father. [ 4 ] Mr. O. confirmed that he has no court ordered access and has not participated in decisions with respect to school, medication or otherwise.

However, he said he had been seeing T.H. two or three times in a week, depending on how busy he was. He had two hours of school every day from Monday to Thursday and would do three hours of homework and assignments per day. [ 5 ] On July 26, 2011, Ms. C.H. took her youngest daughter, C(1), to stay with a friend for the evening and left T.H. in the care of her father. T.H. and her father stayed at T.H.’s home. [ 6 ] Ms. C.H. testified that she left the house around 8:00 p.m. and returned around 10:00 a.m. on July 27, 2011. Mr. O. left shortly after. Ms.

C.H. proceeded to give both of her daughters a bath and noticed marks on T.H.’s back. The marks were not there when she left the night before. The marks appeared to form a handprint with little blood blisters around the edge. She said there was some bruising and some redness. [ 7 ] Ms. C.H. called her mother who came over and took pictures. They then took T.H. to the hospital. By this point, they had also noted marks on T.H.’s leg just above her knee on the side. [ 8 ] The visit to the hospital consumed some hours.

They were seen by a doctor; chest x-rays were taken; they were seen by social workers; and then a police officer showed up. [ 9 ] Between first noticing the marks and attending the hospital, the redness had gone down and there was a bit more bruising. The mark on T.H.’s leg had almost disappeared. The marks on her back lasted a few days, fading as time passed. [ 10 ] Before going to the hospital, Ms. C.H. texted Mr. O. to ask what had happened. She received no response until after they had got to the hospital. When Ms. C.H. asked Mr. O. if he had hit T.H., he responded that he spanked her there. When Ms.

C.H. clarified whether it was across her back, he confirmed that he spanked her. Ms. C.H. expressed concern that it was more than a spank because of the blood blisters. She then asked if he spanked her leg too. He said yes he did. Ms. C.H. asked him why he struck T.H. so hard, pointing out that she is only three. His response was “she haz to learn gud n bad frm young”. Ms. C.H. said “not like that, that will never happen again”. His response to that was “so like hw while dont disturb me. U shld hav watched her lst nite den.” Ms. C.H.’s response to that was “I was giving you a chance to be with your daughter.

Believe me I will never leave her with you again”. His response to her was “fuck off my fone”. [ 11 ] Constable Wood was the officer who responded to the dispatch. He viewed the injuries to T.H. and 19:15 hours, approximately 11 hours after Ms. C.H. returned to her home. He observed a reddish handprint on T.H.’s back and reddish marks on her left knee area. He took photographs. Those photographs clearly show the handprint mark running across her back and the red marks on her leg above her knee. [ 12 ] Constable Wood took an audio and video recorded statement from Mr. O. In the course of that statement, Mr.

O. confirmed it was his first time alone with T.H. He said he only had three hours of sleep. He put her to bed so that he could go to bed. [ 13 ] Mr. O. said that he used to be with T.H. almost every day but as fall progressed school got him busy and he would see her once every two weeks. He then said that he had been in school since May and since the beginning of summer he would see her once in awhile, and does not visit her very often. [ 14 ] It should be noted that Mr. O. is Nigerian. His English is quite good but his accent is heavy. Consequently, I have factored in considerations for language challenges.

That being said, Mr. O. told Constable Wood that, from the night before, he had only had three hours of sleep. He told Constable Wood his mission was to put T.H. to bed and then go to bed himself. He said he was asleep but not quite asleep when T.H. woke him with a soiled diaper. He said that he was trying to change her diaper in the living room but she started walking upstairs towards the washroom. She began wriggling with her legs and would not put her legs in place to fix the diaper. He said this was occurring around 10:00 or 11:00 at night. [ 15 ] Mr.

O. said that he was trying to discipline her and intended to hit her on her bum. He was changing the soiled diaper at the time and ended up hitting her on the thigh when she turned to slip from him. She was still soiled. She flipped over and was trying to leave so he spanked her on her back. He agreed with Constable Wood that he was not trying to spank her on the back but to spank her on the bum. Before he spanked her, she was whining and trying to wiggle away. After he spanked her, she began crying. He confirmed that he spanked her with his right hand. [ 16 ] Mr.

O. said he had never hit T.H. before, then corrected himself to say once or twice he had. However, he said he would not really call those spanks and that the weight of the diaper normally absorbed them. He said that her mother knows he does that. Mr. O. recognized that he and Ms. C.H. had a different point of view on many things.

[17] Mr. O. said that he did not set out to hit her hard but when he saw the marks he knew that it was not good. He said it wasbecause he was drowsy and feeling sleepy that night. [18] Constable Wood showed Mr. O. the text message conversations back and forth between himself and Ms. C.H. Mr. O.confirmed “I did spank her”. [19] This was all inconsistent with the evidence Mr. O. gave at trial regarding these marks. At trial, he said that he was watchingtelevision and fell asleep. T.H. woke him to say that she had soiled herself. He told her to get her diaper and wipes which is part of hernormal routine.

He said normally she lays down voluntarily but in this case she went to the stairs instead. He went to grab her and bringher down the stairs. She pulled away and started to say she wanted her mom. She began whining. He took her into the room to changeher but she was wriggling and kicking her legs and whining for her mother. He was wiping her bum so he gave her two slaps. Shestarted crying and asking for her mom. She flipped while he was exchanging one wipe for a clean one. She began to crawl away fromhim. He said it happened so fast. His intention was to press her to the ground and hold her.

She began crying uncontrollably. This is anentirely different characterization from what he texted to Ms. C.H. and what he told Constable Wood. [20] With respect to the spank to the thigh, he said T.H. was running from him when he spanked her so he believed it was on her leftside. He described it as a moderate corrective measure. She was crying but became still. He continued to change her diaper and in lessthan two minutes she flipped. [21] Mr. O. denied that he was angry or frustrated but spanked T.H. to discipline her. He knew her mother had not disciplined herthis way before but nor had he. [22] Although Mr.

O. could see the marks, he did not mention them to Ms. C.H. when she came home in the morning. He did notdiscuss the incident and left about noon. He confirmed the contents of the text message. [23] On cross-examination, the manner in which Mr. O. described his strike to T.H. was inconsistent with the pattern on her back inthe photographs. He changed his testimony to say that T.H. was horizontal when she flipped. He acknowledged that the hit to her backmade a loud noise like a clap. He said that he saw the mark and realized he struck her too hard. He realized this right after the fact.

Hedenies that he hit her too hard on the thigh. He did not realize until he saw the photos at the police station that she had the marks on herthighs. [24] While T.H. was three years old at the time and could both speak and understand when spoken to, Mr. O. admitted that he did notfirst attempt to correct her by command or direction. [25] Mr.

Tate argued that the slap to the thigh was discipline contemplated by s. 43 of the Criminal Code which reads as follows: 43 Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward apupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances. [26] Mr. O. is neither a schoolteacher nor a parent based upon the evidence with respect to custody, birth registration and access. Ms. C.H. left T.H. under Mr.

O.’s care but did not authorize him to use spanking as a corrective measure. His own evidence was that heand Ms. C.H. did not share views on this matter and this is supported in the text messages that passed back and forth between them. [27] I was provided with my own decision of R. v. D.L.M. [2009] B.C.J. No. 1288 where I considered R. v. Murphy [1996] B.C.J.No. 1549 (B.C.C.A.) and the Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) 2004 SCC 4, [2004] 1 S.C.R. 76.

Dealing first with who stands in the place of a parent, I refer to the D.L.M. decision where I have cited theleading authorities: 24 These are the portions of the Canadian Foundation decision which provide guidance in this case: 21

Section 43 delineates who may access its sphere with considerable precision. The terms "schoolteacher" and "parent" are clear. Thephrase "person standing in the place of a parent" has been held by the courts to indicate an individual who has assumed "all theobligations of parenthood": Ogg-Moss [Ogg-Moss v. The Queen, (SCC), [1984] 2 S.C.R. 173) at 190 (emphasis inoriginal). These terms present no difficulty. 25 In the case before me, the terms do present difficulty because of the nature of the child's relationship with her father. Biology aloneis not sufficient to create a parent for the purposes of

Section 43. The person who is a parent must be someone who has assumed all ofthe obligations of parenthood. The only evidence before me is that CM seldom saw her father despite the custody and access agreementwhich would have created a much more responsible relationship. Absent DLM actually playing that active role granted by the courtorders or by what is usually recognized as the role of a parent, he cannot simply rely upon his biological relationship to qualify as aparent for this defence. 26 A person may assume the place of a parent by delegation. In R. v. Murphy, the Court of Appeal cited R. v.

Ogg-Moss (SCC), [1984] 2 S.C.R. 173 which said that delegation cannot simply be inferred from the mere placing of a child in the care ofanother. In this case, the child's mother sent her to her paternal grandparents for a visit. They then allowed the child to go to the pool withDLM. There is no delegation to the grandparents or particularly to DLM from the mother. 27 In R. v.

Murphy, the Court of Appeal determined that parents may delegate the right to discipline their children and may expectthose others to assume authority necessary for the well being of the child, which is to be exercised in a reasonable way (see paragraph30). There is no indication that the mother's parameters for correction were communicated to any of the grandparents or DLM.

[ 28 ] In this case, Ms. C.H. reserved the parenting rights to herself very specifically and very clearly. However, she did temporarily leave her child in the care of Mr. O. and all the responsibilities that go with that transient care. She did not authorize the type or extent of discipline he used. [ 29 ] I consider next the motivating factor behind the discipline and cite from paragraph 24 of Canadian Foundation : 24 First, the person applying the force must have intended it to be for educative or corrective purposes: Ogg-Moss , supra at page 193.

Accordingly, s. 43 cannot exculpate outbursts of violence against a child motivated by anger or animated by frustration. It admits into its sphere of immunity only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolic disapproval of his or her behaviour. The purpose of the force must always be the education or discipline of the child: Ogg-Moss , supra , at page 193. [ 30 ] In this case, it is clear that the slap to the thighs was precipitated by frustration born of Mr.

O.’s exhaustion, the time of night, the child’s whining and her attempts to wiggle away from him. There was nothing corrective about the measures he took. He made no efforts to correct her verbally first or to reassure her when she began to whine for her mother. I reject his evidence entirely that he was simply attempting to correct her. [ 31 ] In any event, even if the measures were corrective, the force used was excessive. The slap to the thighs left finger marks which were evident more than 12 hours after smacking her.

While he said that he did not see the marks to her thighs at the time, it is clear that they were visible both to T.H.’s mother and to Constable Wood. Counsel argued that the photographs do not properly depict the marks to the thighs because neither set of photographs have consistent colouring. However, they do have consistent contrast. Therefore, while the skin colouring may be slightly different in each set of photographs, the degree of marking was similar.

Furthermore, there should have been no marks evident if a proper corrective spank had occurred. [ 32 ] It defies explanation what could possibly be achieved by spanking a three year old child who is upset and needing her mother. This is a situation that demands reassurance and encouragement. Instead, T.H. received a hard spank to the thighs which left her marked for several hours at the very least. As stated in D.L.M. , physical correction that either harms or degrades a child is unreasonable.

This clearly caused harm. [ 33 ] As stated at paragraph 40 in the Canadian Foundation , s. 43 exempts from criminal sanction only minor corrective force of a transitory and trifling nature. This does not fulfil that parameter. [ 34 ] With respect to the marks to the back, Mr. Tate argued that the action was not to spank but to contain the child as she attempted to wiggle away while her diaper was being changed. That is simply not supported in the evidence contained in the text messages nor in the statement given to Constable Wood.

It is clear that the marks to the back were the result of a spank and not an attempt to press the child down to the floor to stop her movement. [ 35 ] Mr. Tate argued that this gesture was pure accident. Even if I accepted Mr. O.’s evidence at trial over the evidence contained in the text messages and the statement to Constable Wood, I would have to find that there is a reasonable doubt the harm to T.H. came about unintentionally and unexpectedly as a result of Mr. O.’s conduct.

I do not see anything in the evidence before me that would put these actions or this case within the parameters of a “pure accident” case. [ 36 ] Even if Mr. O. were attempting to pin T.H. to the floor, it was in context of an upset child attempting to wiggle away from him. There was no reason other than her soiled bottom to have to contain her so harshly. He compounded this situation by first failing to reassure her in circumstances where she was clearly upset and whining for her mother, then spanking her. Even if I accepted that the injury to her back was caused by Mr.

O. attempting to hold her in place, the force used was extraordinary and could only lead to the foreseeable conclusion the child would be harmed. In this case, there were significant lasting marks to her back which were evident for some days after the force was applied. [ 37 ] In any event, I find that this was not an attempt by Mr. O. to pin T.H. to the floor but was a spank precipitated by the same frustration, fatigue and uncooperative conduct of T.H.

It was unreasonable and excessive and caused harm to her. [ 38 ] I am satisfied that the Crown has proved its case beyond a reasonable doubt with respect to the assault. The question is whether the Crown has proved that, in committing the assault, Mr. O. caused bodily harm to T.H. It is clear that the spanks left lasting impressions for at least some hours if not a couple of days. Bodily harm is defined as hurt or injury that is “more than merely transient or trifling in nature”. In my view, the reference to “transitory and trifling” in s. 43 is distinct from the reference in s.

Section 43 seeks to distinguish between corrective force and assault.

Section 2 seeks to distinguish between assault and assault causing bodily harm. While I find that the harm was more than transitory and trifling in nature for the purposes of corrective measures, I am not satisfied that the nature of the injuries was more than transitory and trifling for the purposes of determining whether it was assault causing bodily harm. I therefore convict Mr. O. of assault, but not of assault causing bodily harm. ________________________________ S.D. Frame Provincial Court Judge