) ) HER MAJESTY THE QUEEN Respondent – v. –, 2017 ONSC 875

CITATION : R. v. L.M., 2017 ONSC 875 COURT FILE NO.: 16-26 DATE: 2017/02/07 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Respondent – and – L.M. Appellant ) ) ) ) ) ) ) )) Aquilas Kapend, counsel for the Crown Douglas G.Edward, counsel for the Appellant ) ) HEARD: January 31, 2017 reasons for decision on

summary conviction appeal lacelle, j Introduction [ 1 ] The appellant was found guilty of assault following a trial. The trial judge found that he had spanked his four year old daughter, A.M., causing bruising. The appellant appeals against that conviction. [ 2 ] At trial, the appellant testified that he had spanked his daughter. He argued that his conduct was not criminal having regard to the defence provided by s. 43 of the Criminal Code . That defence was rejected by the trial judge.

After noting that the child had “serious bruising” on her buttocks several days after the events, she found that the force inflicted by the appellant to correct the child’s behaviour was “far more serious and long lasting” than had been depicted by him in his evidence. [ 3 ] The appellant says the trial judge made a number of errors, and that the conviction ought to be overturned.

In his factum, he frames the issues this way: • Does the evidence given by A.M. to the effect that the bruises on her buttocks were “from my Dad” and “because he spanked me” and “he hurt me” prove beyond a reasonable doubt that the bruises observed were inflicted by the spanking administered by her father? • Is it necessary to have expert evidence to inform the Court as to the timing of infliction of bruising, the force used and the means used in order to allow the Court to decide whether the person charged did inflict the bruising? • Where there is insufficient or no evidence on a point required to be proven to find guilt, such as the person who or event which caused bruising in an assault conviction and rejection of the application of s. 43 of the Criminal Code , and the Court wrongly assumes a particular party to have caused the bruising exhibited by the alleged victim, does that constitute a misapprehension of the evidence sufficient to overturn the conviction? • Even if the bruising was caused by the spanking administered by the accused, was it transitory and trifling or did it exceed the norm? [ 4 ] For the reasons that follow, I would not give effect to any of the grounds of appeal.

Issue #1: Did the trial judge misapprehend the evidence in finding that the accused caused the bruising to the child’s buttocks (issues 1, 2 and 3 as framed by the appellant) The positions of the parties

[5] The appellant submits that the central issue in this appeal is that there was insufficient evidence that the appellant inflicted thebruises observed on A.M.’s buttocks by spanking her. He argues that if there is no evidence that the spanking caused the bruising, thecourt could not find other than that the force used by the appellant was transitory and trifling in nature.

Consequently, he would beentitled to an acquittal by way of the operation of s. 43 of the Criminal Code. [6] In support of this submission, the appellant argues that it would be unsafe to accept the evidence of a four year old child as to howand when the bruising on her buttocks was inflicted, because a child would not have sufficient experience to draw that conclusion. Theappellant concedes there was evidence from the child’s mother that the injuries were first observed by her after picking her daughter upfollowing a few days of parenting time with the appellant.

However, he says that without expert evidence to further establish how andwhen the bruising was caused, this evidence was insufficient to allow the trial judge to draw an inference that the bruising observed onthe child had been caused by the spanking. He points to the case of R. v.

A.(M.), 2011 ONCJ 91 as demonstrating the type of expertevidence that needs to be available to a court before it can make a determination about the cause of bruising. [7] The Crown submits that the trial judge properly analyzed the evidence she deemed credible, and that it was open to her to find thatthe bruising to the child’s buttocks had been caused by the spanking administered by the appellant.

She emphasizes that the recordincluded not just the child’s evidence, but the evidence provided by her mother as to the timing of her first observation of the injuries,and of police, who took photos of the bruising three days after the spanking occurred.

Given that the record before her also included theappellant’s admission that he had spanked A.M., and the trial judge’s rejection of his evidence that he had not done so in anger, therecord was more than sufficient to permit the trial judge to be satisfied beyond a reasonable doubt that the spanking caused the bruising.The Crown further argues that the evidence of a witness as to how she sustained an injury may support a finding as to how the injury wascaused whether or not the witness is a child or an adult. She emphasizes that courts routinely draw such inferences without expertevidence.

Analysis [8] I do not agree that the inference that the spanking caused the bruising was not available to the trial judge in the absence ofexpert evidence on the issue. In arriving at this conclusion, I have considered the appellant’s submission that in this case, expert evidencewas required to confirm the timing of the injury, and whether the marks observed on A.M.’s buttocks were consistent with a spankingadministered with a hand. While expert evidence may be admissible to prove the causation of an injury, there is no rule that suchevidence is always required.

A trial judge may draw an inference from other evidence adduced to determine that certain assaultivebehaviour caused a specific injury: see R. v. Boyle, [2014] O.J. No. 4849 (C.A.) at para. 10 and R. v. Flengeris, (SKCA), 125 Sask. R. 192 at para. 5. [9] I find that it was open to the trial judge on this record to arrive at the conclusion that the accused’s spanking caused thebruising observed on A.M.’s buttocks.

The evidence permitting this inference included: • The evidence of A.M. in her police video statement (admitted at trial pursuant to s. 715.1 of the Code) three days after the incidentthat she got the bruises on her bum because her father spanked her, and that it hurt when he spanked her; • The viva voce evidence of A.M. confirming that she got the marks in the photos shown to her in court from her dad, because hespanked her; • The evidence of A.M.’s mother that prior to A.M.’s parenting time with her father there were no bruises to her buttocks, and herobservations of bruising shortly after A.M. returned to her care; • The photographs of the injuries taken by police three days after the incident; • The appellant’s admission in his evidence that he had spanked A.M. after she had become disobedient and out of control once shearrived at his home. [10] As regards the appellant’s submission that a four year old child does not have sufficient experience and understanding of theworld to permit her to identify how she sustained an injury, I see no basis in this record to conclude that the trial judge was not aware ofthe need to approach the evidence of A.M. with a view to her age and maturity.

The trial judge referenced the child’s capacity tounderstand time, and the case law that guides the approach to children’s evidence. While I agree with the appellant’s submission that achild does not have the scientific knowledge to determine when a bruise occurs, a child may testify as to her understanding of how shesustained an injury, just as an adult witness might.

It is open to a trial judge to accept that evidence or not depending on thecircumstances of the case. [11] I also do not accept that A.M. could not offer an explanation as to how she sustained the bruising to her buttocks because therewas no evidence that she “was capable of observing the location of the bruises”. In essence, the appellant argues that it was unlikely ifnot impossible for A.M. to know she had bruises to her buttocks because she would not be able to see them without assistance.

I do notagree that the trial judge required evidence of when or how A.M. first observed the bruises to her buttocks before she could acceptA.M.’s account of how she sustained that injury.

Given her narrative that her father had spanked her and it hurt, there was nothingimprobable in A.M.’s explanation that this is how the bruising to her buttocks occurred, regardless of whether she had been aware of thebruising before her mother asked her about it. [12] In the circumstances of this case, it was open to the trial judge to accept A.M.’s account of how she sustained the marks to herbuttocks, and given the totality of the evidence, to find that the bruising sustained by A.M was caused by the appellant’s conduct inspanking her. I am not persuaded that the trial judge misapprehended the evidence.

Issue #2: Did the trial judge err in rejecting the appellant’s defence pursuant to s. 43 of the Criminal Code (issue 4 as framed bythe appellant) The positions of the parties

[ 13 ] The appellant submits that the case law suggests that mere bruising of the buttocks does not exceed the force permitted by s. 43 of the Code , and that there was no evidence presented by the Crown to prove “that the level of bruising here exceeded the norm”. He relies on A.(M.) in support of that submission. [ 14 ] The Crown argues that the trial judge made a finding that the appellant had struck A.M. while motivated by anger and frustration. She says that because the spanking did not have a corrective purpose, the appellant may not rely on s. 43 regardless of the characterization of the force used. The legal principles [ 15 ]

Section 43 of the Criminal Code provides that a parent is justified in using force “by way of correction” toward his or her child “if the force does not exceed what is reasonable under the circumstances”. [ 16 ] In Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General), 2004 SCC 4 , the Supreme Court considered the meaning of “reasonable under the circumstances”. It held at para. 40: … a solid core of meaning emerges for “reasonable under the circumstances”, sufficient to establish a zone in which discipline risks criminal sanction.

Generally, s. 43 exempts from criminal sanction only minor corrective force of a transitory and trifling nature. On the basis of current expert consensus, it does not apply to corporal punishment of children under two or teenagers. Degrading, inhuman or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the head is unreasonable. Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment.

Coupled with the requirement that the conduct be corrective, which rules out conduct stemming from the caregiver’s frustration, loss of temper or abusive personality, a consistent picture emerges of the area covered by s. 43. It is wrong for law enforcement officers or judges to apply their own subjective views of what is “reasonable under the circumstances”; the test is objective. The question must be considered in context and in light of all the circumstances of the case.

The gravity of the precipitating event is not relevant. [emphasis added] The principles applied [ 17 ] As I read the reasons of the trial judge, she rejected the s. 43 defence because she found that the force inflicted on the child to correct her behaviour was far more serious and long lasting than what had been depicted by the appellant in his testimony. She arrived at this conclusion after rejecting the account of events given by the accused, and finding that the child had “serious bruising on her buttocks, several days after the events”.

In effect, she found that the force used was not reasonable under the circumstances. [ 18 ] In arriving at this conclusion, the trial judge rejected the account given by the appellant about the force used with his daughter, and made various findings as to the circumstances in which the force had been used. She did not believe the appellant’s evidence that he had not been angry when he spanked his daughter. She found that the appellant felt that his daughter’s behaviour was standoffish and disrespectful to him, and that he was being rejected by her.

She found that the routine he had imposed on his daughter was of a high standard for a four year old child. She found that the child’s non-compliance with that routine was something the accused was not able to tolerate. [ 19 ] These findings were open to the trial judge on the record before her, as were her findings that the spanking caused the bruising described by the child’s mother and depicted in the photos filed at trial.

Given those findings, it was also open to the trial judge to reject the appellant’s defence pursuant to s. 43 of the Code . [ 20 ] In arriving at this conclusion, I have considered A.(M.) , and its review of other cases where s. 43 was successfully invoked to defend against assault convictions for spanking that resulted in bruising. It is trite law that each case turns on its own facts.

These decisions, which were not provided to the trial judge, did not preclude a finding in the case before her that force sufficient to leave what she found to be “serious bruising” exceeded what was reasonable under the circumstances. [ 21 ] Further, the appellant’s argument on this issue appears to focus on whether the injury produced by the force is “outside the norm”, whereas the inquiry under s. 43 is whether the force used does not exceed what is reasonable under the circumstances.

The issues are related, insofar as the presence of an injury, and its severity, may inform the assessment of the force that was used to cause it. But it is of limited assistance to compare whether a case involving bruising after spanking resulted in a successful s. 43 defence by reference to the presence or absence of bruising alone. A trial court must consider all the circumstances and the context in which the force was used.

The presence or absence of bruising following the application of force is only one consideration. [ 22 ] The appellant also argues that the Crown offered no evidence that would indicate “that the level of bruising here exceeded the norm”. The issue before the trial judge was whether the force used by the appellant exceeded what was reasonable in the circumstances. The evidence adduced during the trial was sufficient to permit her to decide that issue. No expert evidence was required to establish what force was reasonable under the circumstances, or within “the norm”.

The trial judge ultimately decided that the force used by the appellant exceeded the transitory and trifling force permitted under s. 43. That finding was open to her on this record. [ 23 ] Given these conclusions, the appeal from conviction is dismissed. Madam Justice Laurie Lacelle Released: February 7, 2017

CITATION : R. v. L.M., 2017 ONSC 875 COURT FILE NO.: 16-26 DATE: 2017/02/07 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – L.M. Appellant reasons for decision on

summary conviction appeal Madam Justice Laurie Lacelle

Released: February 7, 2017