R. v. Kim, 2013 ONSC 4333

CITATION : R. v. Kim, 2013 ONSC 4333 COURT FILE NO.: 6/2013 DATE: 20130625 ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) ROBERT FETTERLY Q.C. , for the Respondent/Crown ) Respondent ) ) - and - ) ) ) HELEN KIM ) ) ) On her own behalf ) Appellant ) ) ) ) HEARD: June 14, 2013 REASONS FOR JUDGMENT [On appeal from the judgment of the Honourable D. Maund, dated Feb. 1, 2013] DURNO, J. [ 1 ] The appellant was charged with assaulting her husband. She defended herself. Her husband testified that the couple were having a dispute about putting their daughter to bed.

While the appellant was lying next to the child on a bed, he grabbed the child by her upper arm, pulled her off the bed, tried to calm her down and took her to and left her in another room. When he returned and told the appellant to get out of the house, she punched him in the chest and shoulder with a closed fist several times. [ 2 ] The appellant’s mother-in-law testified that she saw her son take the child firmly out of the arms of the appellant and to the other room.

When he returned a verbal altercation started before the appellant struck her husband in the chest and arms about twelve times before the complainant’s mother intervened and pushed them apart. [ 3 ] The appellant testified and admitted that she might have pushed her husband but could not remember what else happened. In her trial submissions the appellant suggested she was acting in “self-defence” of her daughter. She argued, consistent with her evidence, that she and her husband were under a tremendous amount of stress at the time. She did not think it was “an attack.” Her submissions concluded:

I do want to summarize to say if I did push Andy out of the way or something like that, it would have been primarily because, you know,he kind of grabbed Christina, and – but, again, that all just was because we were all very stressed out. [4] The trial judge found the appellant guilty. Responding to the Crown’s submissions, His Honour found there was insufficientinformation with regards to any potential issue of whether or not the appellant had a viable “not criminally responsible” defence pursuantto s. 16 of the Criminal Code.

The trial judge had concerns about her “logical context in her evidence.” He noted that he sincerelybelieved the appellant was a very intelligent woman who was articulate and respectful during the trial. She clearly had mental healthissues based on the way she testified. While it was regrettable, the proceeding was in criminal, not family court. It was not a court withthe ability to delineate mental health issues without evidence. [5] His Honour concluded: … Certainly, there was a difference of opinion between the parties as to whether the younger child should go to bed or not.

Butnevertheless, on any view of the evidence as given by the Crown witnesses, there was no justification for the application of force. Andthe accused does not deny that that, essentially happened. While she says that it was a stressful situation and she believes it was, I think,perhaps blown out of proportion, or words to that effect, the evidence was clear and was not contradicted.

It is overwhelmingly insupport of the criminal conviction as such, as I am making a finding of guilt. [6] The trial judge imposed a 12 month conditional discharge with terms including that she have no contact with her husband withexceptions. The appellant, representing herself, appeals contending inadmissible evidence was introduced at trial and in effect theverdict was unreasonable.

In the alternative, she submits the sentence was harsh and excessive. [7] The finding of guilt was entered after the appellant declined an opportunity to explore a possible mental health diversion thatwould have resulted in the charge being withdrawn and perhaps a peace bond entered. On appeal, that same option was explored withthe appellant although the mechanism to accomplish that objective was left to be determined given the finding of guilt. However, Ms.Kim does not see a connection between the events that gave rise to the charge and any possible mental health issues.

Accordingly, theappeal proceeded with full submissions. [8] For the following reasons, the appeal is dismissed. Analysis [9] In submissions Ms. Kim raises several issues. First, she submits that evidence of a separate incident that was the subject ofanother count on the information should not have been introduced. I agree. The appellant was arraigned on two counts of assault. Evidence was introduced on both counts before the appellant brought to the Court and Crown Counsel’s attention that a previous Crownhad indicated the Crown would only proceed on the count in relation to the appellant’s husband.

At that point the other charge waswithdrawn. [10] While the evidence should not have been introduced, I am unable to find that the “inadmissible” evidence affectedthe verdict. It is not every piece of inadmissible evidence that results in a new trial. From reading the Reasons for Judgment I amunable to find that the trial judge relied on the other incident in any way in reaching his conclusion. In the result, the error occasioned nosubstantial wrong or miscarriage of justice. s. 686(1)(b)(iii) [11] The appellant next submits that the verdict was unreasonable and not supported by the evidence.

In assessing thisground of appeal, I do not re-try the case and reach the decision I would have had I been the trial judge. The test is whether a properlyinstructed trier of fact (judge or jury) could have reached the conclusion the trial judge did. R. v. Yebes (1987), (SCC),36 C.C.C. (3d) 417 (S.C.C.) [12] Here, the appellant’s husband and mother-in-law said she struck him numerous times with her fists. The appellantsaid that if she pushed her husband or something like that, it was because he had grabbed their daughter and because of the stress she wasunder.

She denied that she had shoved her mother-in-law but did not deny striking her husband. Accordingly, subject to a self-defenceargument that I will address next, there was evidence the appellant intentionally applied force to her husband without his consent. Shedid not deny she had done so. That she was under stress, in itself, did not afford a legal defence to the charge. There was evidence uponwhich the trial judge could have reached the conclusion the appellant initially applied force intentionally to her husband without hisconsent.

Subject to self-defence, that established an assault. [13] Next, the appellant, as she did at trial, submits that she was acting in defence of her daughter who was taken fromher to another room. The sequence of events is determinative of this ground of appeal. There was a confrontation in the children’sbedroom during which the appellant’s husband firmly grabbed their young daughter and took her to the other room. When he returnedthe verbal altercation resumed. No doubt both parents were upset at each other. However, at that time, there was no issue of self-defence of the child. She was in the other room.

Her father was not assaulting her and was not threatening to do so. [14] In submitting that she was acting in self-defence, Ms. Kim explained that if she struck her husband it was akin towhat happens in a hockey game. If a player fouls another player without a penalty being called, it might be several minutes later beforethe fouled player retaliates, `pay-back’ time. She mentioned an incident she had seen where Wendal Clark had retaliated as I understoodher submissions.

She said that if she assaulted her husband it was to show him that he should not have grabbed their child and that it wasdone under a great deal of stress. [15] While the appellant’s candour is commendable, the analogy does not provide a defence in law. Hockey playersassume certain risks and being fouled is one of them with few exceptions. A player by participating in hockey impliedly consents to

some bodily contact necessarily incidental to the game but not overly violent attacks. R. v. Leclerc (1991), (ON CA),67 C.C.C. (3d) 563 (Ont. C.A.) A slash with a stick, provided it was not directed at the head, is something that is generally accepted aspart of hockey by those playing. The appellant’s husband testified that he did not consent to being struck and it was not suggested that hehad done so.

Rather, it was suggested that, in effect, he had to be shown that it was wrong to grab their daughter. [16] That her husband was six foot two inches and weighed over two hundred pounds, while the appellant wasconsiderably lighter and shorter does not alter the situation. A smaller person can assault a much larger person. [17] Finally, the appellant contends her rights under the Charter of Rights and Freedoms were violated. Ms. Kim hadfiled a Charter notice at trial that His Honour summarily dismissed as not disclosing a Charter issue.

The appellant submits that herrights as a parent were violated, that there were delays and that the prosecution was “overkill.” I disagree. From reviewing the material,while it is regrettable that this matter wound up in criminal court and going to trial, there were no Charter violations. There was nounreasonable delay. [18] The appeal from the finding of guilt is dismissed. [19] As regards the sentence appeal, I am only permitted to vary a sentence in limited circumstances.

Intervention is onlywarranted where the sentence is: not fit, clearly unreasonable, clearly excessive or inadequate, outside the acceptable range, reflects asubstantial, marked departure from sentences customarily imposed on similar offenders who committed similar offences in similarcircumstances thereby permitting the appellate court to minimize disparity, or if the trial judge applied the wrong principles, failed toconsider a relevant factor or placed an overemphasis on appropriate factors. R. v.

M.(C.A.), (1996), (SCC), 105 C.C.C.(3d) 327 (S.C.C.) [18] The trial judge imposed a conditional discharge with 12 months’ probation. In addition to the statutory terms, His Honourprohibited the appellant from having any contact with her husband except: 1) if he filed a written revocable consent with a probationoffice, or 2) as necessary to exercise access to her children, either through a Family Court order, a written separation agreement, orthrough a mutually agreed upon third party.

She was also prohibited from going to her husband’s residence, place of business oranywhere he is known to be subject to the same three exceptions noted above. In addition, the appellant was required to take suchassessment and counseling as directed by her probation officer for either mental health issues or emotional control issues. Ms. Kim isrequired to stay in the assessments until completed and to sign written consents to permit her probation officer to monitor compliance. [20] I am not persuaded the sentence reflects any of the above noted areas under which I could vary the sentence.

Whilethe appellant suggested that her husband would want to delete the non-association clause, there is no evidence or indication that hewishes the order changed. As indicated to the appellant during submissions, she can speak to her probation officer about changing theterms. [21] While not directly raised by the appellant, to complete the record I will consider the assessment and counselingconditions given Ms. Kim’s belief that there is no connection between the incident and her mental health issues. While Ms.

Kim doesnot see a link between her conduct and mental health issues, and given her explanation on appeal there might be some substance to thatview, no treatment was ordered because she would not consent. His Honour saw the appellant in court and heard from her father beforesentencing. On the basis of the complete record, it was open to the trial judge to find that an assessment was required as part of thesentence. [22] The appeal is dismissed. ___________________________ DURNO, J. Released: June 25, 2013 CITATION: R. v. Kim, 2013 ONSC 4333 COURT FILE NO.: 6/2013 DATE: 20130625

ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – HELEN KIM Appellant REASONS FOR JUDGMENT [On appeal from the judgment of the Honourable D. Maund, dated Feb. 1, 2013] DURNO, J. Released: June 25, 2013