R. v. Jones, 2011 NSPC 47

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Jones, 2011 NSPC 47 Date: August 8, 2011 Docket: 2292404, 2294273 - 2294282 Registry: Halifax Her Majesty the Queen v. Dalton Cornelius Jones DECISION Judge: The Honourable Judge Anne S. Derrick Heard: August 2, 3, 4 and 5, 2011 Decision: August 8, 2011 Charges: sections 145(2) (b); 279(2), 264.1(1)(a), 266 x 6, 129(a), 267(

a) of the Criminal Code Counsel: Catherine Cogswell - Crown Attorney, assisted by Karlan Modeste and Charys Payne Dalton Jones for himself

By the Court: Introduction [1] Dalton Jones was before me last week for a four day trial on charges of assaulting and threatening his wife, Shealynn Rogers andassaulting his daughter, Niala Jones. He was also on trial for charges of resisting arrest and failing to attend court. After the testimony ofShealynn Rogers and her sister, Amberlee, the Crown offered no evidence on a charge of unlawful confinement (count 1 of theInformation) and an assault charge against Niala (count 6 of the Information). I found Mr. Jones not guilty of these two charges. [2] Mr.

Jones was adamant from his first appearance before me that he was going to represent himself. He never wavered from thisposition at any point. In his closing submissions he reiterated how he had wanted to represent himself throughout the trial. He made thisstatement in the context of commenting on the fact that I had granted the Crown’s applications under

section 486.3 (1) and (2) of theCriminal Code for the appointment of a lawyer to conduct the cross-examination of Shealynn Rogers and her older daughter, IshaRogers, who is six years old. My decision on these applications is reported at [2011] N.S.J. No. 262. [3] Wayne Bacchus was appointed to conduct the cross-examinations but in the end he only did so in relation to Shealynn Rogers asIsha did not testify. Her evidence was received by way of an Agreed Statement of Facts (Exhibit 6). Mr. Bacchus advised that he assistedMr.

Jones in relation to this aspect of the case, including reviewing the Agreed Statement of Facts with him. [4] The Crown called nine witnesses: Dr. Amy Ornstein - a pediatrician, Shealynn Rogers - the mother of Niala and Isha and the nowestranged wife of Mr. Jones, April Rogers - Shealynn’s mother, Amberlee Rogers - Shealynn’s 26 year-old sister, Cst. AllisonHenneberry, Sgt. Leonard Haughn, Cst. Joshua Collins, and Cst. Sandra McNaughton. With the exception of Cst. McNaughton, thepolice officers called by the Crown were involved with the arrest of Mr. Jones on March 10. Cst.

McNaughton was involved with theinvestigation and the taking of statements from the children. She testified on the Crown’s

section 486.3 applications. I have not found itnecessary to refer to her trial evidence in these reasons. [5] I will be referring to Shealynn, April and Amberlee Rogers by their first names to avoid confusion about which Ms. Rogers I amreferring to. [6] Mr. Jones elected not to call evidence and did not testify himself. [7] Prior to the close of the Crown’s case and in accordance with

section 601 of the Criminal Code, the evidence that was elicitedduring the trial, and R. v. B(G), (SCC), [1990] 2 S.C.R. 30, which stands for the principle that the dates in anInformation are not generally an essential element of an offence – and I find they are not an essential element in this case – I permittedthe Crown to amend the dates for offences charged in the Information: for counts 2 and 3 (charges of threat and assault againstShealynn) and counts 7, 8, and 9 (charges of assaults against Niala). The Crown alleges on the basis of the amended dates that Mr.

Jonesthreatened and assaulted Shealynn between March 4 and March 9, 2011 and that he assaulted Niala on three occasions betweenNovember 1, 2009 and March 12, 2011. I was satisfied that, having regard to the merits of the case, the proposed amendments could bemade without injustice being done to Mr. Jones. [8] The Crown did not seek to amend the dates for count 10 (assault with a weapon) which the Crown alleges occurred, as indicated inthe Information, between November 30, 2009 and March 12, 2011. [9] This is an unusual case in that Mr.

Jones has not disputed that he used physical force against his daughter, Niala. As I will discussin these reasons, it is his position that his actions were grounded in scriptural principles and therefore sheltered from criminal liability bythe constitutional guarantee of freedom of religion. Mr. Jones’ submissions with respect to the charges of threatening and assaultingShealynn Rogers and resisting arrest were directed more specifically to the evidence. I will address all of this in due course. The Relationship of Mr. Jones and Shealynn Rogers

[ 10 ] Mr. Jones and Shealynn Rogers met in 2004 and became involved in an intimate relationship in 2007. Shealynn already had a daughter, Isha, who was born on August 25, 2004. On February 16, 2008, Shealynn had Niala who is Mr. Jones’ biological child. Shealynn’s sister, Amberlee, was present at Niala’s birth. She has continued to have a very close relationship with Shealynn and her two nieces. [ 11 ] Mr. Jones and Shealynn lived at various addresses with the children and sometimes Amberlee during the period of 2007 – 2011. They were married on June 19, 2010. Shealynn testified that she married Mr.

Jones because she loved him “with all her heart” although she says that love started to drain away after the marriage and is now completely gone. She has not lived with Mr. Jones since March 10, 2011, the day after an incident involving Niala that led to Mr. Jones being arrested for assault. [ 12 ] The March 9, 2011 incident is the most recent one and I will address it once I have discussed the evidence led by the Crown about Mr. Jones’ earlier assaults of Niala. The Assaults Witnessed by Amberlee Rogers [ 13 ] Amberlee Rogers witnessed Mr. Jones assaulting Niala on three occasions.

I will describe these as the plastic broom incident, the Bank of Montreal incident, and the Dawn Street apartment incident. I will note that Amberlee’s evidence about these incidents was not contradicted. She gave consistent evidence on cross-examination. She impressed me as a candid witness who did her best to recall events accurately and honestly. She identified Mr. Jones in court as the person whom she witnessed assaulting Niala. The Plastic Broom Incident [ 14 ] Although Amberlee had lived with Mr. Jones, Shealynn and the girls at Rocky Lake Road in Bedford, by December 2009, she had moved out.

However, she still came back to visit and was spending the Christmas season with them. She had bought her nieces a gift of a cleaning kit with a mop and broom. The handle of the broom was made of plastic and was about a foot and a half long. It was an inch to an inch and a half in diameter. [ 15 ] On the day of the plastic broom incident, Shealynn was in the kitchen cooking supper. Amberlee was in the girls’ bedroom, on the phone and smoking out of the window. Although she testified that she heard a whipping noise, I am not sure how she could have done so in these circumstances.

I do not however question that she heard Niala screaming. She jumped over the bed and ran down the hallway to the living room where Mr. Jones was with Niala. Niala was facing the wall with Mr. Jones behind her. Amberlee saw Mr. Jones whip Niala across the back of her upper thighs with the plastic broom handle. Mr. Jones used a backhand motion. It took a couple of seconds as Mr. Jones did it “right fast.” Amberlee recalls Niala being dressed in a diaper and a T-shirt with nothing on her feet and legs. Amberlee confirmed what she saw on cross-examination by Mr. Jones. [ 16 ] There was nothing being said.

Niala was screaming and crying really hard. She continued to cry for 3 – 4 minutes after Amberlee arrived in the room. She yelled at Mr. Jones: “What the fuck are you doing? Why are you doing this?” He told her to mind her business, telling her it was his child and he could do what he wanted. She testified that his tone was angry. [ 17 ] Shealynn also arrived on the scene, a second or two after Amberlee. Amberlee remembers her reacting too, asking Mr. Jones: “What the fuck, Dalton?” Shealynn told Mr. Jones, “You don’t beat a kid like that.” She remembers Niala wearing pajama bottoms.

This is slightly different from Amberlee’s recollection of Niala being only in a diaper. I find it is an inconsequential difference although given what was observed about Niala’s legs I think it more likely they were bare. [ 18 ] Shealynn took Niala into her room and Amberlee followed. Niala had two welts, one on each leg. The welts were all swollen and puffy. They disappeared after about an hour and a half. The Bank of Montreal Incident [ 19 ] Another incident involving Mr. Jones and Niala occurred outside the Bedford branch of the Bank of Montreal close to Niala’s second birthday.

Shealynn had gone in to get some money and Mr. Jones was parked with Amberlee and the children in the van waiting

for her. [ 20 ] Mr. Jones was in the driver’s seat, Niala and Isha were in the seats behind him and Amberlee was in a third row of seats behind them. Niala was cranky and started to whine. Mr. Jones told her to stop. Amberlee thought he seemed frustrated. Niala kept crying and Amberlee saw Mr. Jones lean back and “tap” her on her cheek with his open hand. When Ms. Rogers demonstrated this in the witness box, she demonstrated a smack delivered with some force. I would not characterize what Amberlee demonstrated as a “tap”. Mr.

Jones’ hand left a red mark on Niala’s cheek, around her cheekbone, that lasted maybe 10 – 15 minutes. Niala cried harder. When Amberlee asked Mr. Jones why he did that, he told her it was his child and she should mind her own business. The Dawn Street Apartment Incident [ 21 ] Amberlee testified there was a further incident involving Mr. Jones and Niala in January 2011 at her apartment on Dawn Street. Mr. Jones, Shealynn and the girls were living with Amberlee until their apartment on the Old Sambro Road was ready. Amberlee was waiting to go downtown. Shealynn had gone to work. Mr.

Jones was watching television with the girls in the living room. Amberlee could hear that Niala wanted to go into Amberlee’s bedroom with her. Amberlee often had the girls in her bedroom to watch “Alice in Wonderland.” Mr. Jones told Niala no. She started to cry. Amberlee testified that she heard the sound of a smack and came out to see a red mark on Niala’s face just under her cheekbone. It was a mark similar to the one Niala got when Mr. Jones smacked her in the van outside the Bank of Montreal. [ 22 ] This smacking of Niala started a big argument between Amberlee and Mr.

Jones in which Amberlee emphasized that he was not to “beat” Niala in her home. She reminded him that had been one of the rules when he had come to stay there. Amberlee testified Mr. Jones told her Niala was “his kid” and he would do what he wanted. He seemed angry. Amberlee told him to “get the fuck” out of the apartment and he left with Niala. When he came back with Niala a half hour to an hour later he had bought a pizza, and the mark was gone. [ 23 ] Amberlee did not call the police or Children’s Aid about Mr. Jones’ treatment of Niala because she was afraid the children would be taken away from Shealynn.

She hated the beatings of Niala and told Mr. Jones so but he said he could do what he wanted with his child and it was none of her business. [ 24 ] The evidence about the plastic broom incident, the Bank of Montreal incident, and the Dawn Street apartment incident form the basis of the Crown’s case against Mr. Jones for the assaults of Niala which are charged as count 10 (assault with a weapon contrary to

section 267 (

a) of the Criminal Code ), count 7 (the Bank of Montreal assault contrary to

section 266 of the Criminal Code ), and count 8 (the Dawn Street Apartment assault contrary to

section 266 of the Criminal Code ). The Walmart Incident [ 25 ] There was also an incident involving Mr. Jones and Niala at Walmart about a week before the March 9, 2011 incident that led to Mr. Jones’ arrest. The Walmart incident is count 9 in the Information, which alleges a further unlawful assault by Mr. Jones against Niala between November 1, 2010 and March 12, 2011. The evidence against Mr. Jones about the Walmart incident came from Shealynn. About a week before the incident that resulted in Niala going to the IWK, Shealynn had gone after work to Walmart in Bayers’ Lake with Mr. Jones and the two girls.

They were buying windshield washer fluid for the van. Niala was “sooking”, having to be told to hold Mr. Jones’ hand and then wanting to hold her mother’s hand. As Shealynn was looking at the windshield washer fluid, she heard the sound of a smack. When she looked at Niala she saw little red marks on the side of her face. Niala began to cry and held Mr. Jones’ hand. [ 26 ] When Shealynn asked Mr. Jones why he had smacked Niala, he responded by saying that Niala had to know she could not run around and had to hold his hand. Shealynn got mad and walked away, telling Mr.

Jones he could not do that in Walmart. [ 27 ] Shealynn pointed out to Mr. Jones that Walmart has cameras. It must have concerned her that the incident could have been recorded. She was still angry with Mr. Jones when they got home and an argument ensued. She told Mr. Jones he had to stop hitting Niala in the face. She was fearful that someone would call Children’s Aid and the girls would be removed. According to Shealynn, Mr. Jones was unperturbed: he told Shealynn he would like to see them try to take the children away. Mr.

Jones also disputed Shealynn’s statement that what he had done was child abuse; he said it was not abuse because it was his child.

The Threatening and Assaulting of Shealynn Rogers [ 28 ] The tensions over the Walmart incident had not really subsided by the next morning. Shealynn had to go to work but first of all was intending to take the girls to Amberlee’s because Mr. Jones had indicated he was not going to look after them. When Shealynn went to go out the door with Niala, Mr. Jones grabbed his daughter and told Shealynn she was not leaving with her. [ 29 ] Shealynn decided to stay and deal with the situation so she could leave with Niala. She went into the kitchen. While there she picked up a small knife with a 3 – 4 inch blade. Mr.

Jones was standing by the door to the kitchen. Shealynn was very frustrated and angry. She thought about stabbing Mr. Jones. She told him so while pointing the knife at his chest. She said she was going to stab him and to let her leave with her kids. He told her to go ahead and stab him – “do it, do it”, he said. Although still angry and upset, Shealynn noticed Isha watching from the door of her bedroom. It was Shealynn’s testimony that this made her put the knife down on the kitchen counter. [ 30 ] Mr. Jones told Shealynn he couldn’t die and was Jesus Christ. She said he was not. Mr.

Jones asked her what she had said and then smacked her across the left side of her face with an open hand, twice. Shealynn slid down the corner of the door to the kitchen and started to cry. Count 3 of the Information reflects the charge of assault laid against Mr. Jones for the assault alleged by Shealynn. [ 31 ] After the smacks, Shealynn told Mr. Jones to give her the phone so she could call for help. She said she wasn’t happy and wanted to leave him. Mr. Jones responded by telling her the only way she would be leaving was if she was “six feet underground” and he had put her there.

This statement constitutes the threat that Mr. Jones is charged with making against Shealynn “to cause [her] bodily harm or death.” This threat is the basis for count 2 of the Information. [ 32 ] Shealynn testified that she had not consented to being smacked by Mr. Jones. It was her evidence that the smacks to her face left it bruised. Her ear was also bruised: her earring had dug into it when she had been smacked. After 2 – 3 days of tenderness, the bruising resolved in 3 – 4 days. [ 33 ] Shealynn Rogers was very firm on cross-examination that she had put the knife down on the counter before Mr.

Jones smacked her. She testified that she remembers clearly what happened. She did not struggle with Mr. Jones and he did not push her hand away in an act of self-defence. She put the knife down once she saw Isha looking at her and before she was smacked. [ 34 ] Shealynn’s routine during this time continued to involve her going to work which was essential as she was the breadwinner for the family. She went to work as usual on March 9, 2011. It was to be the day of Mr. Jones’ final assault on Niala, which is reflected in count 4 of the Information.

The March 9 Incident [ 35 ] On March 9, 2011, Shealynn was scheduled for work and Mr. Jones was going to be taking Niala to a birthday party. After they dropped Isha at school, Mr. Jones drove Shealynn to the Dollarama Store with Niala where she bought some presents for Niala to take to the party. After the purchases, Shealynn stayed at work and Mr. Jones and Niala left. Shealynn had seen no injuries on Niala that day. [ 36 ] Shealynn called Mr. Jones during her first break but could not get hold of him. She left a message that she loved him and everything was fine. When she called again around 6 p.m. and Mr.

Jones did not answer she was worried because he always answered his phone. Shealynn next called just before 8 p.m. to be picked up from work. She asked Mr. Jones to come into the store as there was something she wanted to show him. [ 37 ] Mr. Jones arrived with the children to collect Shealynn. He came into the store and Niala ran up to her mother who was standing by her cash register. Shealynn testified that she saw Niala’s face was all purple and puffed out. She asked Mr. Jones what he had done to her, why had he done that?

He told her “not to start with him” or he would do the same to her “in here”, referring to the store where they were all still standing. Isha was there too, right in front of Shealynn’s cash register with Mr. Jones.

[ 38 ] According to Shealynn’s evidence, Mr. Jones told her he had hit Niala because she didn’t know his name and didn’t respect him. He told Shealynn he was going to make an example of her. [ 39 ] Mr. Jones, with the assistance of counsel appointed to cross-examine Isha Rogers, agreed to the admission into evidence of an Agreed Statement of Facts, Exhibit 6, in place of having Isha testify in court. The Agreed Statement of Facts provides that on March 9, 2011, Mr. Jones first slapped Niala in the face for calling him “Dada” instead of his preference, “D. Jones.” As a result of the slap, Niala hit the wall.

Shortly after this, Niala was held down and “repeatedly” slapped by Mr. Jones when she once again called him “Dada” instead of D. Jones. Asked again by Mr. Jones to say his name, Niala responded “D. Jones” and was not slapped further. [ 40 ] Once at home, Shealynn, who had been crying, went into the bedroom with the girls while Mr. Jones stayed in the living room. She tried to think of what to do. She wondered if she could go out and hit Mr. Jones with a chair to make him feel what Niala had felt when she was hit. She wanted to hurt him for hurting Niala.

She decided she would keep Isha back from school the next day and then she would leave together with the girls and get help. She came up with a plan “to pretend everything was okay and leave.” [ 41 ] The next day Niala’s face was swollen and purple on both sides of her cheeks right up to her temple area. Her ears were purple and blue. After she got the girls ready Shealynn told Mr. Jones she was going to get groceries. When he asked why Isha hadn’t gone to school, she said it was because there was nothing to eat for lunch. Mr. Jones hugged Isha and Shealynn and left to visit a friend. Once Mr.

Jones had gone, Shealynn took the girls and left. She went to see her mother and agreed to call 911 once she felt reassured that it would not result in Community Services taking her children away from her. [ 42 ] 911 directed Shealynn to the IWK Emergency where they were met by Cst. Angela Henneberry. Niala was examined by Dr. Ornstein. Cst. Henneberry took Shealynn’s statement and statements from her mother and sister who had accompanied her to the hospital. Niala did not receive any medication at the IWK.

Shealynn testified that her bruises took almost 2 weeks to heal completely. [ 43 ] Shealynn spent the night of March 10 at Bryony House with Isha and Niala. While there, police officers attended to take photographs of Niala which were tendered as Exhibit 3. Shealynn confirmed that Exhibit 3 is an accurate representation of Niala’s injuries on March 10. [ 44 ] Shealynn also looked at Exhibits 4 and 5, the photographs taken at the IWK on March 10 and 18, and confirmed that they were an accurate depiction of Niala’s injuries when she first went to the IWK and after a week had passed. The Evidence of Dr.

Amy Ornstein [ 45 ] Dr. Amy Ornstein, Director of the IWK Child Protection Team, was qualified on the basis of her qualifications, education, experience and training in the areas of pediatric medicine, general pediatrics as well as child abuse pediatrics, and permitted to give expert opinion evidence in those areas as well as in relation to child maltreatment and the

interpretation of injuries. She prepared a report that was tendered as Exhibit 2. [ 46 ] Dr. Ornstein saw Niala on two occasions at the IWK, March 10, 2011, when Shealynn brought her in, and March 18 as a follow- up. Dr. Ornstein examined Niala on both March 10 and 18 and took a medical history. She also ordered tests to determine if Niala had any problems that would lead to her bleeding more readily. She had photographs taken of Niala’s injuries which comprise Exhibits 4 (March 10 photographs) and 5 (March 18 photographs). Based on her two examinations of Niala she prepared her report for court. [ 47 ] Dr.

Ornstein testified that Exhibits 4 and 5 accurately represent what she observed when she examined Niala on March 10 and March 18 respectively. On March 10, Niala had bruising to her face on both sides and to her left earlobe and behind the helix of her left ear. Her face showed distinctive linear bruising which Dr. Ornstein assessed as skin trauma. In her report, Dr. Ornstein described this as “extensive, bilateral, patterned facial bruising.” She also noted two “U” shaped markings on Niala’s head near her hair line, that joined the linear bruises [ 48 ] Dr.

Ornstein identified a red mark on Niala’s chin area that, unlike the other markings on Niala’s face, had not resolved by March 18, but she was unable to say definitively that this was a bruise. When Mr. Jones asked her on cross-examination if the mark could be a scar, she agreed it could be.

[ 49 ] Dr. Ornstein ruled out, through various tests, any bleeding problem explanation for Niala’s facial bruises. She satisfied herself that there was no underlying concern about Niala’s blood or blood clotting to explain the bruising. There was no indication of any trauma to Niala’s abdomen, pancreas or liver. [ 50 ] On March 18, Dr. Ornstein noted that very few of the markings on Niala’s face were still present. A small area of purple bruising was still evident on the right side of her face and the back of her earlobe. The curvilinear “adjoining” areas of bruising were no longer present. [ 51 ] It is Dr.

Ornstein’s opinion that the bruising on Niala’s face is consistent with an assault by an open hand which is what she was told had happened. The unusual features of the bruising that suggested it was not as a result of an accident or childhood play were the location: bruising on the face is unusual and there was no history of Niala falling on her face. Dr. Ornstein also noted that bilateral bruising on both sides of the head at the same time is unusual. In Dr. Ornstein’s opinion the linear bruising suggests a traumatic object: Dr. Ornstein finds it concerning when she can identify geometric shapes in bruising.

Ear bruising is also unusual: Dr. Ornstein testified that it is not typical to see ear bruising from play as the ear is not usually traumatized in play. Dr. Ornstein testified the bruising on Niala’s ear could have been part of the same mechanism as an open hand hit to the face as the fingers of the hand could extend over to the ear, causing trauma to the ear as well. [ 52 ] Dr. Ornstein was not provided with any information that Niala had had an accident as an alternate explanation for the markings on her face. In her opinion, the bruising on Niala’s face was consistent with being hit with an open hand.

In her report Dr. Ornstein stated: “The extensive area of bruising and petechiae to the left side of Niala’s face, although not in a specific pattern or shape, would have only resulted from the application of significant force to her face.” [ 53 ] Dr. Ornstein came to the conclusion that Niala had been abused and confirmed her opinion, in response to a question on cross- examination by Mr. Jones, that beating a child constitutes child abuse. She also indicated that she would expect bruising to occur if a child was struck by a rod with sufficient force. It was Dr.

Ornstein’s opinion that Niala exhibited evidence of physical trauma and that this was indicated in the photographs making up Exhibit 4. [ 54 ] Dr. Ornstein did not provide any treatment for Niala’s physical injuries because none was necessary. This was a typical approach to injuries of the nature exhibited by Niala; it does not mean that Niala was not abused, just that no treatment was required. [ 55 ] Dr.

Ornstein was asked about physical punishment and testified that the Canadian Pediatric Society has endorsed a position paper that concluded there are acceptable alternatives to disciplining children that do not involve physical punishment. She indicated that there is a body of research that identifies negative consequences of physical discipline. When asked by Mr. Jones to elaborate on what these negative consequences might be, Dr.

Ornstein identified the development of aggression and mental health problems, acceptance of physical violence as a means to resolve conflict, and the increased likelihood of using violence with a partner. Mr. Jones’ Arrest [ 56 ] Cst. Henneberry, who was at the IWK on March 10 when Niala was brought in, and took statements from Shealynn, her sister and her mother, formed the view that Mr. Jones should be arrested as soon as possible. She enlisted the assistance of Sgt. Haughn and Cst. Collins. They made their way to Clayton Park West School where they understood Mr.

Jones would be doing some after-school volunteer coaching. [ 57 ] The decision to have Mr. Jones arrested at the school was made because the nature of the allegations against him – the assault of a child – raised concerns about harm coming to the children Mr. Jones was coaching there. When the officers arrived at the school around 3 p.m., they were informed that Mr. Jones was in the gymnasium. They proceeded there immediately. [ 58 ] I will note there are some slight differences amongst the various descriptions by the police officers of Mr.

Jones’ arrest but I have concluded these are not significant. [ 59 ] Also in the gymnasium with Mr. Jones were a number of young children and a teacher. The teacher began to usher the children out

of the gym once she was advised that an arrest was to occur. [ 60 ] Sgt. Haughn was the first police officer to approach Mr. Jones. He did so after Cst. Henneberry identified him. Cst. Haughn made a straight line to Mr. Jones, addressed him by name and took him by his arm. (Sgt. Haughn recalled this being Mr. Jones’ left arm although Cst. Collins testified that Sgt. Haughn took Mr. Jones’ right arm with Cst. Collins subsequently grabbing his left one. As I have said, I do not regard this difference in the officers’ recollections as material to anything.) [ 61 ] Sgt. Haughn told Mr.

Jones he had reason to believe Mr. Jones had assaulted his wife and his child and advised him that he was under arrest. Mr. Jones immediately pulled his arm away from Sgt. Haughn and drew his arms close to his chest. He told Sgt. Haughn “no, no, no – not here, no.” Cst. Henneberry had been taking her handcuffs out. Mr. Jones was getting “ramped up” and both Sgt. Haughn and Cst. Collins, holding his arms, could feel him tensing and his body vibrating. [ 62 ] Sgt. Haughn stepped behind Mr. Jones as Cst. Henneberry tried to reason with him. Mr. Jones was asked to put his hands behind his back.

He was not complying with verbal directions. Sgt. Haughn attempted a neck restraint because he saw “total non-compliance” and determined that this was the quickest way to gain control of Mr. Jones. He was not using nearly the amount of pressure against Mr. Jones that would cause a person to become unconscious which can be achieved using this technique. Mr. Jones lowered his chin so the force applied by Sgt. Haughn ended up being to his chin. [ 63 ] Using body weight, Sgt. Haughn knelt and then brought Mr. Jones to the floor. Mr.

Jones remained “clenched” and non-compliant, refusing to pass his arms to the police officers despite their continued commands that he do so. Mr. Jones tucked his arms against his body which made it very hard to get control of his hands for the purpose of handcuffing them behind his back. [ 64 ] On the floor, Sgt. Haughn was lying across Mr. Jones’ back. He gave the okay for Cst. Collins to use the Conducted Energy Weapon (CEW). Cst. Collins had proposed doing so because other techniques to gain compliance - verbal commands and other use of force measures - were not working. Cst.

Collins used the “touch” mode of the CEW which involved removing the CEW cartridge containing the probes. The objective was to cause Mr. Jones a little pain to secure his compliance. Mr. Jones was warned that the CEW was going to be used. With the first application to Mr. Jones’ lower back there was some loosening by Mr. Jones of his arms but “not nearly enough” for the officers to pull his arms out. A second jolt with the CEW on Mr. Jones’ buttocks and he released his arms from under his body and was handcuffed.

His compliance after the second application of the CEW was “pretty quick.” [ 65 ] The officers were able to cuff Mr. Jones and stand him up. He seemed to be amused and was laughing at them. They took him out of the school and he was placed in Cst. Henneberry’s patrol car. Cst. Henneberry told Mr. Jones he was being charged with assaulting Niala and also mentioned that he was the subject of an outstanding warrant for failing to attend court. Mr. Jones did not want to talk to a lawyer and Cst. Henneberry took him to police booking. [ 66 ] Mr. Jones had no questions for the police witnesses about his arrest.

He indicated that he was not disputing their evidence about how it was effected. Although technically it constituted giving evidence, which Mr. Jones had chosen not to do, I did not take any issue with Mr. Jones advising me from the counsel table during his final submissions that he resisted arrest because of the nature of the allegations – assaulting Shealynn and Niala. Mr.

Jones submitted that had he been told by the police officers that the arrest was for the outstanding warrant issued as a result of his failing to attend court, he would not have resisted as he accepts that he is guilty of that offence. [ 67 ] Mr. Jones was charged with unlawfully and willfully resisting Sgt. Haughn, Cst. Henneberry and Cst. Collins while they were engaged in the lawful execution of their duty on March 10, 2011. This is count 5 on the Information. Failing to Attend Court on February 21, 2011 [ 68 ] Mr. Jones failed to attend court on February 21, 2011.

The Crown tendered a copy of the Information charging Mr. Jones with failure to attend court without lawful excuse (Exhibit 7) and a certificate confirming Mr. Jones’ failure to attend court as ordered on February 21, 2011. (Exhibit 8) Mr. Jones has advanced no lawful excuse, indeed no excuse at all, for failing to attend court and admitted during his trial that he was guilty of this offence. Accordingly, I am satisfied Mr. Jones’ guilt has been proven beyond a reasonable doubt

and I enter a conviction on this charge. Mr. Jones’ Defences to the Charges of Assaulting Niala Jones and Threatening and Assaulting Shealynn Rogers Jones [ 69 ] Mr. Jones’ defences to the charges involving Shealynn and Niala can be broken down into three categories: (1) that with respect to the charges of assaulting Niala, the Charter guarantees Mr.

Jones’ freedom of religion and therefore constitutionally protects his use of force that was informed and justified by Christian religious scripture endorsing the corporal punishment of children; (2) that the smacking of Shealynn was self-defence as she had been holding a knife at his chest; and (3) that Shealynn is not a credible witness and her claim of being threatened by him should not be believed.

I will deal with the defences relating to the charges involving Shealynn Rogers first. [ 70 ] Shealynn Rogers impressed me as a candid witness who relayed, as best she could recall, the events that were relevant to this trial. She seemed to have a good memory and did not shirk from describing how she contemplated stabbing Mr. Jones on the day he was refusing to let her leave the apartment with Niala and how she mused about hitting him with a chair on March 9 after seeing Niala’s bruised face.

She was not shaken by questions on cross-examination and her accounts of events were supported by other witnesses whom I also found to be credible, for example, Amberlee and April Rogers. I did not find any reason to disbelieve Shealynn or find her version of events to be unreliable. I accept her testimony that Mr. Jones told her she would only be leaving if she was six feet under and he had put her there. That constituted a threat of death: Mr. Jones was in effect saying that Shealynn would not be leaving the apartment unless she was buried and he had put her in her grave.

There is no other reasonable inference to be drawn from Mr. Jones’ words, which I accept he said to Shealynn when she told him she wanted out of the apartment and out of the relationship. [ 71 ] As for Mr. Jones smacking Shealynn across the face, he does not deny doing so. In his submissions, Mr. Jones indicated he wanted me to find that the Crown had failed to prove beyond a reasonable doubt that he had acted in self defence. Mr.

Jones pointed to Shealynn’s acknowledgement that she had held a knife to his chest: it was his submission that he slapped his wife because of this, adding that she would not have pointed the knife at him if she had followed the biblical edict that admonishes, “Wives, submit yourselves unto your husbands, as unto the Lord.” (Mr. Jones referred to this being found in Corinthians,

Chapter 5, verse 22 but it is actually from Ephesians,

Chapter 5, verse 22.) Using this passage, Mr. Jones went on to say that if Shealynn had been submissive to him, she would not have pulled a knife, adding a warning that if I am to find him guilty, “it will not only show that justice won’t be done, it will also show that women can pull weapons on their [husbands and intimate partners.]” [ 72 ] I will deal first of all with the issue of self-defence. I find no basis in the evidence for Mr. Jones’ actions being a result of self- defence. There is no evidence of a struggle or Mr.

Jones pushing the knife away from him which was suggested to Shealynn in cross- examination. She firmly rejected these suggestions. I accept Shealynn’s testimony that she put the knife down before she was slapped by Mr. Jones, that there was no struggle, and no movement by Mr. Jones in relation to the fleeting presence of the knife at his chest. I find that the slapping occurred after Shealynn disputed Mr. Jones’ claim of being Jesus Christ. I find that Mr. Jones slapped his wife because she was defying him; she was daring to challenge his authority over her and his claim of divinity.

The evidence indicates to me that Mr. Jones slapped Shealynn to put her in her place. This was a common assault and the Crown has proven beyond a reasonable doubt the elements of this offence, including jurisdiction and identity. [ 73 ] I will further say this: Mr. Jones plainly has a very distorted view of the legal and social relationship between husbands and wives if he believes that wives can and should be required to submit themselves to their husbands. Mr. Jones advocates this and he draws support for his views from a plain reading of the biblical passage he referred to.

It is a profoundly patriarchal and antiquated notion that constructs an unequal status for women, a status that is antithetical to social and political norms in a democracy and more, broadly, to women’s internationally recognized rights to equality. It conflicts with women’s constitutionally protected rights to equality “before and under the law…and the right to the equal protection and benefit of the law…” as provided for in

section 15 of the Canadian Charter of Rights and Freedoms and is inconsistent with

section 28 of the Charter that guarantees Charter rights and freedoms “equally to male and female persons.” [ 74 ] Mr. Jones apparently believes that the Bible and not the rule of law govern his responsibilities and obligations as a member of Canadian society. I will have more to say about that in the discussion that follows on the issue of Mr. Jones’ use of force against Niala. What I will be saying is relevant in this trial because Mr. Jones’ beliefs have brought him into conflict with the law.

In his use of force against his wife and daughter, he has acted on his beliefs as though the criminal law has no application to him. In our constitutional democracy, Mr. Jones can believe what he likes; what he cannot do is act in accordance with those beliefs if doing so constitutes a criminal offence. [ 75 ] Mr. Jones also needs to understand that the laying of criminal charges lies exclusively within the discretion of the police. In the circumstances of this investigation, the police must have determined they would not lay a charge against Shealynn Rogers for momentarily pointing a knife at Mr. Jones.

On the facts that have emerged at Mr. Jones’ trial, that decision is not surprising. It is patent

nonsense for Mr. Jones to suggest, as he has, that holding him accountable for his actions will license women to assault their partners. Iassume the police decided on the facts in this case that Shealynn Rogers and Niala were the victims of assaults by Mr. Jones, laidcharges accordingly against Mr. Jones, and placed Shealynn’s holding of the knife on Mr. Jones in that context. [76] I will now turn to the charges against Mr. Jones of assaulting Niala. I accept that the Crown has proven beyond a reasonable doubtthat Mr.

Jones intentionally used force against Niala and assaulted her on the occasions described in the evidence – with the plasticbroom handle in December 2009; at the Dawn Street apartment; at Walmart; and on March 9, 2011. I accept the evidence of AmberleeRogers concerning the assaults she witnessed, the evidence of Shealynn Rogers concerning the broom handle assault and the March 9assault, the Agreed Statement of Facts concerning the March 9 assault, and the evidence of Dr. Ornstein concerning the injuries Nialasustained as a result of Mr. Jones’ assault of her on March 9. [77] I find no merit in Mr.

Jones’ suggestion that Shealynn Rogers has been motivated by revenge and a malicious desire to keep him injail. The evidence does not support this assertion. I found Shealynn Rogers to be a credible witness who took pains not to embellish orexaggerate her descriptions of events. I accept that she did not agree with Mr. Jones’ use of force against Niala but did not contact theauthorities until March 10, 2011 because she feared she would have her children taken into care and because she hoped the beatingswould stop. [78] Mr.

Jones made closing submissions in relation to the assaults on Niala that were anchored in biblical passages that contemplatedphysical discipline of children. I believe my reference to a couple of these passages, from Proverbs, will give the flavour of thesesubmissions. [79] Mr. Jones noted that Proverbs,

chapter 23, verses 13 and 14, provide as follows: “Withhold not correction from the child: for ifthou beatest him with the rod, he shall not die” and “Thou shalt beat him with the rod, and shalt deliver his soul from hell.” Proverbs,chapter 3, verses 11 and 12 read: “My son, despise not the chastening of the Lord; neither be weary of his correction: For whom the Lordloveth he correcteth; even as a father the son in whom he delighteth.” Mr. Jones referred to these latter passages for the point that hedisciplined Niala because he loved her. It was not out of anger he said, it was out of love. In Mr.

Jones’ submission, he was responsiblefor disciplining Niala and not Shealynn because she was too lenient and he delivered physical discipline in order to keep Niala on thestraight and narrow. [80] Mr. Jones’ references to scripture – and there were more that I do not consider it necessary to repeat – underpinned his submissionthat he enjoys a constitutional guarantee of freedom of religion which permits him to do certain things, such as physically discipline hisdaughter according to biblical directives, even if his actions are prohibited by law. [81] Mr.

Jones shows a profound failure to understand the relationship between religious beliefs and practices and the authority of thelaw. While the Charter, under

section 2(a), does guarantee the fundamental freedoms of conscience and religion, Mr. Jones, as a believerof certain religious tenets, is not exempt from the application of the criminal law. The purpose of freedom of religion has been explainedby the Supreme Court of Canada in R. v. Big M Drug Mart, (SCC), [1985] S.C.J.

No. 17: …The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whateverbeliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours ortheir parallel rights to hold and manifest beliefs and opinions of their own. [82] Freedom of religion does not trump obligations to comply with the criminal law. This is so obvious it goes without saying. It mayassist to reflect on how the Supreme Court of Canada in Syndicat Northcrest v.

Amselem, 2004 SCC 47 , [2004] 2 S.C.R. 551has located freedom of religion in the context of the rights of others: Freedom of religion…quite appropriately reflects a broad and expansive approach to religious freedom under…the Canadian Charter andshould not be prematurely narrowly construed. However, our jurisprudence does not allow individuals to do absolutely anything in thename of that freedom.

Even if individuals demonstrate that they sincerely believe in the religious essence of an action, for example, thata particular practice will subjectively engender a genuine connection with the divine or with the subject or object of their faith, and evenif they successfully demonstrate non-trivial or non-insubstantial interference with that practice, they will still have to consider how theexercise of their right impacts upon the rights of others in the context of the competing rights of private individuals.

Conduct whichwould potentially cause harm to or interference with the rights of others would not automatically be protected. The ultimate protection ofany particular Charter right must be measured in relation to other rights and with a view to the underlying context in which the apparentconflict arises. (paragraph 62)(emphasis added)

[83] I will note that these statements from the Supreme Court of Canada are in relation to religious freedoms and the private rights ofothers: Mr. Jones is advancing a position that champions an even more profound conflict between religious beliefs and rights – theability of religious freedoms to immunize conduct from the application of criminal law which has as its purpose the protection andpreservation of public order and personal safety and security. The constitutional right to freedom of religion is not an absolute right anddoes not permit or justify violations of the criminal law.

As the Supreme Court of Canada held in Big M Drug Mart, the freedom ofone’s beliefs and conscience are subject to “such limitations as are necessary to protect public safety, order, health, or morals or thefundamental rights and freedoms of others…” (paragraph 95) To drive this point home in the context of this case, it is the criminal lawthat decides what constitutes an unlawful assault, and no religious tenets or beliefs can trump or dilute that determination. [84] I want to make it clear that I do not simply accept wholesale that Mr. Jones hit or beat Niala because of his religious beliefs.

Iheard evidence, which I accept, that there were occasions when Mr. Jones appeared frustrated or angry immediately before or afterhitting Niala. Amberlee Rogers testified that this is what she observed during the Bank of Montreal incident. She also testified that whenshe challenged Mr. Jones on the occasion of the plastic broom incident, he responded with an angry tone and told her he could do whathe wanted with his own child. He took the same stance after the incident at the Dawn Street apartment. The Agreed Statement of Factsalso makes it plain that on March 9 Mr.

Jones assaulted Niala, inflicting significant bruises, because she was calling him “Dada” insteadof what he preferred. I cannot accept this as discipline grounded in religious belief. It resonates with the attitude that led to Mr. Joneshitting his wife a week before; Niala was being punished for defying Mr. Jones’ view of himself and his entitlements. [85] To whatever extent some of Mr. Jones’ actions may have been influenced by his particular religious beliefs and the support forthem he drew from the Bible, it remains a fact that Mr.

Jones hit Niala, including with a plastic broom handle, because he believed hewas entitled to do so, as her parent and disciplinarian. He did not and does not regard his actions as criminal. Given that religious freedomcannot protect such conduct from criminal liability if the Crown proves the elements of the offence of assault beyond a reasonable doubt,there is only one other issue I must address – did Mr. Jones’ actions on any or all of the occasions when he hit Niala constitute correctionof a child by force that is permitted by

section 43 of the Criminal Code? [86] I am satisfied the facts in this case take Mr. Jones’ actions well outside the scope of

section

Section 43, paraphrased accordingto what is relevant for this case, provides: Every…parent…is justified in using force by way of correction toward a…child…who is under his care, if the force does not exceedwhat is reasonable under the circumstances. [87] The Supreme Court of Canada has been explicit about the scope of a

section 43 defence: first of all, the intent behind theapplication of force to the child cannot have been “motivated by anger or animated by frustration.” (Canadian Foundation for Children,Youth and the Law v. Canada, 2004 SCC 4 , [2004] S.C.J. No. 6, paragraph 24) As the Court held in Canadian Foundation: … [Section 43] admits into its sphere of immunity only sober, reasoned uses of force that address the actual behaviour of the child andare designed to restrain, control or express some symbolic disapproval of his or her behaviour.

The purpose of the force must always bethe education or discipline of the child. (paragraph 24) [88] Furthermore, the Supreme Court of Canada found that the child “must be capable of benefiting from the correction” and held that“Force against children under two cannot be corrective, since on the evidence they are incapable of understanding why they are beinghit.” (Canadian Foundation, paragraph 25) [89] There is also the requirement in

section 43 that the force be “reasonable in the circumstances.” The Supreme Court of Canada hasbeen definitive about this as well, holding: …Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful. Corporal punishment whichinvolves slaps or blows to the head is harmful. These types of punishments…will not be reasonable.” (Canadian Foundation, paragraph37) [90] There is no question about where Mr. Jones’ actions fall. Having regard to the Supreme Court of Canada’s analysis of

section 43 ofthe Criminal Code, each application of force to Niala was unreasonable and contrary to law. It is only “minor corrective force of atransitory and trifling nature” that will be exempt from criminal sanction. (Canadian Foundation, paragraph 40) Mr. Jones’ use of force

against Niala was criminal. It was brutal and enjoys no protection from

section 43 of the Criminal Code . [ 91 ] I have one final comment before concluding my reasons. There was evidence in this trial that Mr. Jones had told both Shealynn and Amberlee Rogers that he is Jesus Christ. I thought he may also have been suggesting this at one point in his closing submissions. Such an assertion, if made by someone who actually believed this to be the case, would be regarded as a delusion. I want to make it clear that whatever Mr. Jones may believe about who he is, any belief held by him that he is someone else does not exempt him from criminal responsibility.

No evidence has been led and no submission made that Mr. Jones is not criminally responsible for his actions due to a mental disorder as contemplated by section 16(1) of the Criminal Code . Under section 16(2) of the Criminal Code , Mr. Jones is presumed not to have a mental disorder so as to be exempt from criminal responsibility until the contrary is proved by a balance of probabilities. No such issue has been raised and notwithstanding any grandiose claims that may have been made by Mr.

Jones about his divine provenance, he is as liable to the application of the criminal law and its sanctions as anyone else to whom section 16(1) of the Criminal Code does not apply. [ 92 ] On the basis of these reasons and the evidence I have accepted in this case, I find the Crown has proven beyond a reasonable doubt that Mr.

Jones is guilty as charged of assaulting and threatening Shealynn Rogers (counts 2 and 3 in the Information); assaulting Niala Jones (counts 4, 7, 8 and 9); assaulting Niala Jones with a weapon (count 10); and resisting the police officers while they were engaged in his lawful arrest (count 5). I enter convictions on all these charges accordingly.