PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. M. P., 2021 NSPC 36
Date: 20210420
Docket: 8354330
Registry: Dartmouth
Between:
Her Majesty the Queen
v.
M. P.
Restriction on Publication: Section 486.4.2.1
|
Judge: |
The Honourable Judge Theodore Tax, |
|
Heard: |
December 1, 2019, January 22, 2020, February 2, 2021, in Dartmouth, Nova Scotia |
|
Decision |
April 20, 2021 |
|
Charge: |
Section 266 of the Criminal Code |
|
Counsel: |
Sarah Lane, for the Public Prosecution of Nova Scotia Brian Bailey, for the Counsel for the Defence |
A Ban on Publication of the contents of this file has been placed subject to the following conditions:
Section 486.4 & 486.5: Bans ordered under these Sections direct that any information that will identify the complainant, victim or witness shall not be published in any document or broadcast or transmitted in any way. No end date for the Ban stipulated in these Sections.
By the Court:
[1] Mr. MP has been charged with the unlawful assault of his young son, BP (Son#1) contrary to section 266 of the Criminal Code on or about May 26, 2019. The offence is alleged to have occurred at or near Dartmouth, Nova Scotia. The Crown proceeded by way of summary conviction.
[2] MP pled not guilty and trial evidence was heard on December 12, 2019 and January 22, 2020. The trial continuation for additional Crown and Defence evidence as well as the closing submissions was scheduled for April 9, 2020. However, due to the Covid-19 pandemic and the public health state of emergency, the trial continuation date was postponed. The hearing of evidence concluded on February 2, 2021 and immediately thereafter, counsel made their closing submissions. The Court reserved its trial decision until today’s date.
Positions of the Parties:
[3] It is the position of the Crown that the evidence of BP (Son#1) and XP (Son#2) was credible and reliable and as children, the court should regard their evidence with common sense and not assess their evidence as if they were adult witnesses. The video statements were provided shortly after the alleged incident and the evidence of the two young boys was consistent and they testified in a straightforward manner without any attempt to embellish their evidence.
[4] The Crown Attorney submits that there was an intentional application of force by Mr. MP, which was never denied by him, therefore, the justification found in section 43 of the Code will have to be considered. It is the position of the Crown that, based upon the Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, Mr. MP’s actions as the parent were not for corrective action, but were acts motivated by frustration and anger. MP’s evidence that they were not results of frustration and anger is not credible and should be rejected by the Court.
[5] Although the Crown Attorney acknowledged that the Court’s role is not to evaluate what could have been done by MP as the parent, but there were certainly alternatives to actions that he did take. However, MP’s actions demonstrate his level of anger and frustration with the comments made by BP (Son#1) and his refusal to do his homework before going to a movie.
[6] In addition, the Crown Attorney submits that BP (Son#1) testified that he had been picked up by the neck by his father and carried to the bedroom and that he felt pain as result of that action. Although there is no evidence of any bruising in that area, it does not negate the fact that MP applied force to his son for an improper purpose.
[7] It is the position of the Crown that a parent’s reaction of using force to correct behaviour must still be reasonable in all the circumstances. The fact that BP (Son#1) has been diagnosed with ADHD and that he can be oppositional and defiant at times, does not justify inappropriate applications of force. She points to the Canadian Foundation for Children at para. 35 and submits that it is improper for the Court to retrospectively focus on the gravity of a child’s wrongdoing, which invites a punitive rather than corrective focus. The focus under section 43 of the Code is on the correction of the child, not the gravity of the precipitating event. Force applied in the absence of any behaviour requiring correction, by definition, cannot be corrective.
[8] Defence Counsel submits that the key issues in this case are the assessment of the credibility and reliability of the evidence of Mr. MP and that of his two young sons XP (Son#2) and BP (Son#1). In terms of the evidence, he submits that the Court will have to apply the instructions to triers of fact as set out by the Supreme Court of Canada in R v. W.D. In determining whether there was an intentional application of force that meets the definition of an assault in section 265(1)(a) of the Criminal Code.
[9] In addition, Defence Counsel submits that the Court will also have to determine the issues in dispute between the parties with respect to the application of section 43 of the Criminal Code. Section 43 of the Code justifies the use of force by persons in authority, such as a parent, to correct a child under the parent’s care, provided that the force does not exceed what is reasonable under the circumstances.
[10] It is the position of the defence that Mr. MP’s evidence should be accepted by the Court and that the minimal force that he applied to his son, Son#1 was only for the purposes of corrective action and for his son to complete his homework before going to a movie. Defence Counsel submits that MP’s actions were not taken in an outburst of anger and frustration, but were reasonable, minimal with the intent to correct his son’s oppositional and defiant behaviour.
[11] In those circumstances, Defence Counsel submits that MP’s corrective action and minimal force applied to achieve that purpose was “reasonable under the circumstances.” In the final analysis, when the court considers the R v. WD analysis of the evidence and the section 43 Criminal Code justification of a parent’s reasonable corrective acts, the Crown has not established the charge beyond a reasonable doubt and MP should be acquitted.
[12] Defence Counsel also takes issue with the Crown’s submission that the seriousness of the behaviour of the child is essentially irrelevant in terms of the reasonableness of a parent’s reaction. He points to the Canadian Foundation for Children case at para. 24 that section 43 of the Code “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.” This, Defence Counsel submits, requires the Court to look at the context and the actual behaviour of the child and the parent’s response.
[13] Moreover, although the Crown Attorney submitted that there were only minor differences between the evidence proffered by BP (Son#1) and XP (Son#2), Defence Counsel submits that there were marked and very significant differences in their evidence which raises questions of its reliability. In particular, XP (Son#2) said that his brother was picked up by both ears and carried to the bedroom, BP (Son#1) said he was picked up by the neck and MP said that he carried Son#1 to the bedroom by lifting him up under both arms.
Trial Evidence:
[14] Const. Debra Murray of the RCMP and a social worker interviewed Son#1 and Son#2 on May 30, 2019 in relation to an alleged incident on Sunday, May 26, 2019 in Dartmouth, Nova Scotia. Const. Murray was called by the Crown Attorney to provide evidence on a voir dire with respect to the admission of the audiovisual recordings of Son#1 and Son#2 as evidence in the trial pursuant to the provisions of section 715.1 of the Criminal Code.
[15] Const. Murray conducted and recorded interviews of the two young boys with social worker, Mitzi Michaud at their schools. They interviewed Son#1’s on Thursday, May 30, 2019 starting at 9:45 AM and ending at about 10:25 AM. After that, Const. Murray and the social worker went to Son#2’s school and his interview began at 10:40 AM and concluded at 11:05 AM.
[16] On cross-examination she confirmed that the complaint was received by the police on Monday, May 27, 2019, but could not explain why it had taken three more days to interview the two young boys. Const. Murray believed that they were interviewed as soon as possible.
[17] Son#1, whose birth date is June [..], 2009, was 10 years old when he testified in court on December 11, 2019. He stated that he was living with his mother and stepdad, KM. He confirmed that MP is his father and that his brother, Son #2’s birthdate is June [..], 2012. He said that his father lives at a different house and that he used to spend a couple of days at his mom’s house and then a couple of days with his father. He could not recall the last time he stayed at his father’s place.
[18] Son#1 recalled talking to Const. Murray at his school and that she had videotaped the meeting. He had watched that video the previous day and following those statements, the video recording of Son#1’s interview by Const. Murray was played in court.
[19] During the interview, Son#1 said that when he stays at his dad’s place, he gets to go to movies and play video games. He said that his brother was six years old at that time. He talked about spending two days at his father’s place and then two days at his mother’s place and that his father would drive him to school.
[20] After that, Const. Murray asked what happens if he gets in trouble for doing something he was not supposed to do at his mother’s place. Son#1 said that he could get grounded, but it would depend on how bad it was, because his mom would just talk to him if he had come home late from school.
[21] Then, Const. Murray asked what happens if he did not follow the rules at his dad’s place and he answered: “you basically get grounded” and then added: “sometimes he twists our ears.” He then motioned to his ears and Const. Murray asked if that hurt and he nodded his head to indicate “yes.” When asked if his father did anything else when he got in trouble, Son#1 answered “that is about all he really does” referring to twisting his ears.
[22] When asked if anything else would happen if he got in trouble at his dad’s place, Son#1 said that he might lose his PlayStation for “about a month or so” or his father would “talk to us.” He added that those things happen “most of the time” if he is in trouble at his father’s place.
[23] Const. Murray then asked if anything had happened recently and Son#1 said that about a week ago, he was playing on his PlayStation and his dad told him to come upstairs, but he did not want to. He asked his father why he had to do that right now and his father told him because he had to do his homework. Then, he said that his mother and K[M], who is his stepdad, help him with my homework more than he does. After saying that, his father came over and “twisted my ears and picked me up by my head and then he threw me on his bed.”
[24] Const. Murray asked Son#1 to show her how his father had been picked him up and then Son#1 made a motion with his both of his hands being placed under his chin on the video. He also showed Const. Murray how his father twisted his ears with both hands. When he got to the bedroom, Son#1 said that his father pushed him on the chin and threw him onto the bed.
[25] Son#1 said that his ears had been grabbed by his dad when he was in the kitchen. After a few moments of being left in the bedroom, his father returned and pushed him in the back to go to the kitchen and do his homework. He confirmed that he did not have any marks on his ears or on his back.
[26] Son#1 added that what he had just described did not happen every time he went over to his father’s house. Then, Const. Murray asked him a leading question that: “obviously it must have hurt, right?” and Son#1 shook his head in agreement and said that he ended up crying. When asked if anyone saw this occur, Son#1 initially said no, but then added that his brother was in the living room and had seen him being picked up by his father.
[27] Following that, the social worker asked him to tell them again in more detail what had occurred. Son#1 said he had been playing with his PlayStation, his dad called him to get upstairs and he sat at the kitchen table. Then, he asked his father why he had to do his homework. When his father told him that it was his homework to do, then Son#1 replied that “mom and K[M] help me more than he does.” After he said that, his father picked him up “by the ears and threw me on the bed” and then walked away. A few moments later, his father came back to the bedroom, hit him in the back with an open hand and told him to come to the kitchen, which he did. He had not been hit like that before.
[28] Following the playing of the audiovisual interview of May 30, 2019 and Son#1’s evidence in court, when he was 10 years old, the Court concluded that the audiovisual recording was made within a reasonable time of the alleged offence and he had described the relevant acts. The Court was satisfied that the audiovisual recording was made within a reasonable time of the alleged offence and that Son#1 had “adopted” the contents of the video recording.
[29] As a result, pursuant to the provisions of section 715.1 of the Criminal Code, the Court concluded that those interviews would be admissible as evidence in the trial and that its admission would not interfere with the proper administration of justice. The video recording was filed as Exhibit 1 and a transcript of that video statement was provided as an aide.
[30] Following the admission of the video recording as Exhibit 1, the Crown Attorney continued her direct examination of Son#1. He described his father’s house and said that his father’s bedroom is just down the hall from the kitchen area. After his dad picked him up by his head, he was carried down the hall by his head for about 3 to 5 seconds from the kitchen to that bedroom. When asked what his father’s mood was, Son#1 answered: “he was angry, cuz of his face.” Just before he had been picked up like that, Son#1 had been at the kitchen table and had started to do his homework and his brother was in the living room.
[31] When asked about the sequence of events, said that he had talked to his dad about the homework first, and then his ear was twisted. He did not remember if he said something before his ear was twisted or being picked up and carried to his dad’s bedroom. His father had not said that he was grounded or that his PlayStation would be taken away for not doing his homework, but his father had asked him twice to do his homework.
[32] Son#1 said that when his father came back into the bedroom, before he went back into the kitchen, his father hit him hard enough on the back to make him start crying and he was “scared” because it hurt.
[33] On cross-examination, Son#1 said that he has talked to several different people about the events in his dad’s house. They occurred on a Sunday, because he went to back to his mother’s house that day and then to school the next day. The incident happened around lunchtime, after his father had “called him” a couple of times to stop playing on his PlayStation and to come upstairs and do his homework. Son#1 agreed that he did not do what his father had asked him to do, he did not come upstairs initially because he “didn’t feel like doing it,” referring to his homework. When he came upstairs, he still did not want to do his homework.
[34] The incident at his dad’s house came to light later that afternoon when he got back to his mother’s house, just before supper, after his brother, Son#2 told her that something had happened at their father’s place. Then, his mother asked him what had happened, and he told her and his stepdad at the same time.
[35] On further cross-examination, Son#1 said that his father took him from the kitchen to the bedroom, threw him on the bed and then left. A short time later, which he estimated was about “10 seconds”, his father came back into the room and “told him to come out and do his homework.” Although Son#1 did come of the bedroom and sat at the kitchen table, he did not want to do his homework.
[36] While he was seated at the kitchen table, with his father was standing near him, Son#1 told his dad that his mother and stepdad helped him more with his homework than he did. Son#1 had not yet done his homework and after he said that to his father, then his dad came over and “twisted his ears.” After that, his father picked him up and carried him for about 3 to 5 seconds to the bedroom.
[37] Son#1 said that, when he was carried by his father to the bedroom, his arms were down by his side and his father had not picked him up under his arms. His father’s hands were “up around his chin.” Son#1 agreed that his father had not thrown him down on the bed “very hard,” but he hit his head, then his body flipped over, and it hurt.
[38] The open hand hit on his back above his waist, had occurred when his father hit him in the bedroom to come out and do his homework at the kitchen table. He did do his homework and there were no further issues that afternoon before he went back to his mother’s house. He agreed with Defence Counsel that there were no marks anywhere on his body, he was not in pain at his mother’s house and that his father’s “ear twist” only hurt for a couple of seconds.
[39] Son#1 said that, when he was seated at the kitchen table doing his homework, his neck and back still hurt for about 15 minutes. When Defence Counsel suggested that his father had not hit him, Son#1 disagreed, and he also disagreed with the suggestion that his father had not picked him up under his chin. He believed that his ear was twisted because he had said that he gets more help with his homework at his mother’s house. Son#1 also agreed with Defence Counsel that the ear twist was probably discipline for not doing his homework and since Son#1 did his homework, there were no more issues relating to discipline.
[40] With respect to the tone of his father’s voice when he called him a couple of times to come upstairs and do his homework, Son#1 said that his father “did not raise his voice.” He agreed that his father did not raise his voice when he called him to come to the kitchen table to do his homework or raise his voice while he was doing his homework. Son#1 confirmed that when his father said to come back to the table and do his homework, he was speaking in a “normal voice” and that it took him about one hour to do the homework.
[41] Son#1 said that his brother, Son#2 was in the living room playing with the dog while he and his father were at the kitchen table. Son#1 said there was no TV in the living room and that Son#2 was on the floor but was looking towards the kitchen. He added that when is dad said to do his homework, his back was towards Son#2, but when his father twisted both of his ears, his father was facing sideways to where Son#2 was located in the living room. From that vantage point, Son#1 thought that he was facing his brother and that Son#2 would see his father’s back as he carried him down the hall.
[42] Son#1 said that after his father threw him onto the bed, he cried for a couple of minutes and was still crying when his father called him to come out and do his homework. He said he was still “sniffling” while he sat down at the table but stopped soon after. Son#2 was still in the living room, sitting with the dog, when he came back to the kitchen.
[43] Finally, Son#1 confirmed that he takes prescribed medications to help him stay focused because he has been told that he has ADHD. He confirmed that he was still taking those medications. Son#1 also stated that he had taken his medications on the Sunday in question but added that the pill helps with his ability to focus “sometimes.”
[44] The next witness in the trial was Son#2, who was 7½ years old when he testified in court. As mentioned earlier, Const. Debra Murray and a social worker had interviewed him on May 30, 2019. She also provided evidence on the voir dire with respect to the admission of a Son#2 audiovisual interview as evidence in the trial pursuant to the provisions of section 715.1 of the Code.
[45] Prior to playing his audiovisual interview, which was conducted on May 30, 2019, Son#2 recalled talking to Const. Murray and a lady named, Mitzi. At the time of the interview, Son#2 was in grade one and he confirmed that he knew the difference between truth and lies. He lives part of the time with his father and the other part with his mother and her partner, KM at their place. He said that if he does something bad at his mother’s place, they will tell him not to do that or he will be sent to his room or grounded.
[46] Then, Const. Murray asked what happens if they did something wrong at their father’s house and if there were different rules. Son#2 said he “twists our ears.” With respect to the question whether he would say anything or just twist his ears, Son#2 said he would yell at us and that one time his dad twisted both of his ears. When asked if an ear twist was for a short or long time, Son#2 estimated “maybe five minutes.” On further questioning, he said it was not that long, but he could count to five and then agreed with Const. Murray that it might be more like five seconds. His dad also twists his brother’s ears.
[47] Son#2 told the police officer that he had seen his father twist his brother’s ears “when he like yelled at dad” and added that Son#1 had also said he was all done his homework, but his dad said “no you are not.” Then, his dad twisted his brother’s ears and Son#2 added: “he also like picked him up by the ears and threw him on the bed.” Son#2 answered: “no, I just saw him pick him up by the ears.”
[48] After Son#2 said that his brother had been picked up by his ears and thrown on the bed by his father, he told Const. Murray that he did not see that, but he said that “because I heard him go on the bed.” Son#2 initially said that he was in the dining room with the dog [M] and that room is next to the kitchen. When Son#2 was asked what he could see in the kitchen if he was in the dining room, he said that he was “sitting in the living room.” He could see his brother sitting at the table and that his dad was leaning against the counter in the kitchen.
[49] When Const. Murray asked Son#2 what his brother and father were saying to each other, initially, he said that he did not remember. Moments later, however, he said that his father had yelled at his brother because Son#1 had said: “you haven’t been helping me with my homework.” He did not recall immediately what happened after his brother said that, but then he said that Son#1 was doing his homework when he made that comment and that is when his father twisted Son#1’s ears, picked him up and threw him on the bed.
[50] Son#2 said that his brother was picked up “by the back of his ears” and started crying. He did not see his brother being thrown onto the bed because he was in the living room and his father’s bedroom was in a different place. However, after Son#1 was thrown onto his father’s bed, Son#2 said that his father spanked his brother’s bum and that he heard the noise of the spank and after that, his father left the bedroom and then used his phone.
[51] Son#1 stayed in his father’s room for a while, then came out and cried for a short time. Son#2 had never seen his father pick up Son#1 “by his ears” and carry him to the bedroom.
[52] Following the playing of the audiovisual interview of May 30, 2019 and Son#2’s evidence in court, when he was 7 years old, the Court found that the audiovisual recording was made within a reasonable time of the alleged offence and he had described the relevant acts. On this voir dire, the Court was also satisfied that Son#2 had “adopted” the contents of the video recording.
[53] As a result, pursuant to section 715.1 of the Code, the Court concluded that the interview would be admissible as evidence in the trial and that its admission would not interfere with the proper administration of justice. The video recording was filed as Exhibit 2 with a transcript of that video statement being an aide.
[54] During his direct examination, Son#2 recalled that his brother was angry at his father but could not remember what Son#1 was doing or what he had yelled at his dad. After that, his father walked over to Son#1 and picked him up by the ears, walked to his bedroom and threw him on his bed. His dad used both hands and held Son#1 by his ears and did not touch any other part of his body. He saw this happen as there was only a “little wall,” about the same height as him between the living room and the kitchen. When his dad was standing beside Son#1, Son#2 could see his father’s arms and head as well as Son#1’s head.
[55] Son#1 did not say anything else to his father after he was picked up, but Son #2 saw his brother kicking at his dad, while his feet were off the ground. After his father threw Son#1 on the bed, he spanked his bum. He felt his dad was mad at Son#1 because he was yelling at him. Son#2 said that his ears had been twisted before and they turned red and had hurt for about a minute. He thought that his dad twisted Son#1’s ears “about the same” as his ears had been twisted. When Son#1 came out of his father’s bedroom, Son#2 noted that his left ear was still red.
[56] On cross-examination, Son#2 could not really remember what day of the week that this had all occurred, but then recalled that he went back to his mother’s place later that day. He did not remember what happened after Son#1 came out of his father’s bedroom and did not recall going to a movie that afternoon with his father.
[57] While Son#2 was in the living room playing with the dog and his brother was seated at the kitchen table, he heard Son#1 say that he would not do his homework after his father had asked him to do it. Son#1 had yelled something at his father, but he did not recall the words. Son#2 did not agree with the suggestion that their father had asked his brother several times to come and do his homework.
[58] From his location on a chair in the living room, Son#2 could see his brother seated at the kitchen table, facing him. His father was facing away from him while he was standing near the counter and when he walked to where Son#1 was sitting. He could not see Son#1’s head or see if his father’s hands were on his brother’s head.
[59] Son#2 said that when his father turned to walk to his bedroom with Son#1, he still could not see where his father’s hands were. He agreed with Defence Counsel that it was a short walk to the bedroom and that, as his father was walking normally to the bedroom, Son#1 kicked at him “about 15 times.”
[60] When asked about what had occurred before his father picked up Son#1, Son#2 said that Son#1 had been yelling loudly at his father and that his father had been yelling at his brother. Son#2 felt that his brother was being punished for not doing his homework, but agreed that his father had tried to get Son#1 to do his homework for about 5 to 10 minutes before he twisted his brother’s ears. During that time, Son#1 had said that he would not do his homework.
[61] The final Crown witness was Ms. EC, mother of Son#1 and Son#2. She said that Son#1 has been diagnosed with ADHD and he regularly takes medication for that in the morning. The medication helps him focus and slow things down for his brain. She now lives with her spouse, KM and the two children from his earlier relationship as well as her two sons. She and MP were divorced in 2014.
[62] She confirmed that the access arrangements in May, 2019 were that she and her ex-husband shared custody and that she would have the boys for two days, they would be with MP for two days, then back with her for three days and then with him for three days to fit in with her continuing care schedule. She confirmed that Sunday, May 26, 2019 was a transition day and that the boys returned to her house at 4 PM. When MP has access with the boys, they are at his place and so, she did not personally observe any of their interactions at his house.
[63] Ms. EC stated that when they got home that day, Son#2 told her partner that there had been an incident at their father’s house. Mr. KM then talked to Son#1 in the kitchen. Ms. EC heard their conversation and after that, she spoke to Son#1. She felt that her son was “mopey” when he got home and his demeanour was different, he was sad and stressed about what the authorities might do. After that, they did not speak very much about the incident and she did not speak to either Son#1 or Son#2 before the trial.
[64] She described the house where her ex-husband lives as a split entry home. After entering the house, if you go up a few stairs, there is the kitchen, the living room is on the right and to the left is the master bedroom. Further down the hall where the master bedroom is located, there is another bedroom and a washroom. The dining room and dining room table area are in the back right of the house and that the master bedroom is at the opposite end of the house on the front left side, approximately 20 feet away.
[65] In terms of the visibility between the kitchen and the living room, there is half-wall with what she described as a “window opening.” The opening is simply a cut out in the wall and there is no glass in that opening. She estimated that that the opening starts at about a bar height and ends about one or 2 feet from the ceiling. The walls around the opening are solid and are about 6 inches to 2 feet wide on each side for lights and switches. If she was standing in the living room area, she could see the kitchen table.
[66] On cross-examination, she confirmed that Son#1 and Son#2 arrived home from her ex-husband’s house around 4 PM on May 26, 2019. When Son#1 came home, she was with him for several minutes and did not see any marks or injuries on him. After Mr. KM spoke to Son#2 about what had happened at his father’s house, Ms. EC purposely checked over Son#1. There were no marks or any injuries on him.
[67] Ms. EC believed that she and MP divorced in 2014 but stated that they had separated previously and between 2014 and 2019, they had shared parental responsibilities. When Defence Counsel suggested that she had called Child Protection Services as many as 14 or 15 times, she acknowledged that there were “several calls” and added that it was probably “four or five times.”
[68] Ms. EC agreed with Defence Counsel that these allegations had occurred on a Sunday and that Son#1 had gone to school the next day. When asked whether his homework had been done, she said that it was completed and she had checked it, adding that it was “atrocious but done.” Ms. EC also agreed with Defence Counsel that her son had been diagnosed with ADHD and she agreed that he can be oppositional and defiant at times.
[69] With respect to the layout of the house, she confirmed that the living room, dining room and the kitchen are beside each other and there is a couch and a TV in the corner of the living room. She agreed that the TV is not on the wall with the “window” opening and agreed that the TV is in the corner of the living room against an outside wall of the house. She agreed that the TV is on a wall furthest away from the kitchen area and that if someone was watching TV, to look through that window opening to the kitchen, they would have to turn and look to the left.
[70] Defence Counsel then confirmed that Ms. EC was about 5’6” tall and that Son#2, who was then about seven years old, only came up to her waist. She estimated that when Son#2 was seven years old in May 2019, he would have been about 3 feet tall.
[71] After the Crown Attorney closed her case, Defence Counsel called Mr. MP as a witness. MP agreed that the parenting arrangements mentioned by Ms. EC were in effect in May 2019 and on the weekend in question, Son#1 had been with him from Friday after school until Sunday afternoon. On that day, he recalled that Son#1 was playing hockey on his PlayStation around 10:30 AM and that he wanted him to do his homework before they went to see the Avengers movie in Dartmouth Crossing at noon.
[72] MP had told Son#1 that he wanted his homework done before they went to the movie. He called Son#1 three times to come upstairs to the kitchen and get his homework done. He called Son#1 to come upstairs with an “raised voice.” After the third time, Son#1 came upstairs, and MP had already laid out his homework on the kitchen table. Son#1 told him that he was not going to do the homework and MP replied if he did not do his homework, then Son#1 would not be going to the movie. After MP said that, Son#1 said: “mom and [KM] help me” and he slammed his pencil down on the table.
[73] MP said that he and his son talked for a moment and then Son#1 said: “I don’t have to listen to you.” When Son#1 yelled at him, MP did not raise his voice during that conversation. He did acknowledge that he had raised his voice when he called Son#1 to come upstairs from playing the video game.
[74] When asked if he twisted Son#1’s ear in certain circumstances, MP said that he sometimes did twist his ear on the earlobe and sometimes lifted him under both arms to carry him to the bedroom. MP said that he is right-handed and if he was going to give Son#1’s ear a little twist, it would be pinch of the left ear, and only for a moment.
[75] On May 26, 2019, MP acknowledged that he did pick up Son#1 under both arms to remove him from the situation because he was being defiant and oppositional. When Son#1 is “oppositional,” he never listens to his father the first time. Prior to May 26, 2019, Son#1’s oppositional behaviour occurred with him “more often than not.” On May 26, 2019, MP stated that Son#1 had raised his voice and that his son’s tone of voice was more aggressive than normal. For that reason, MP removed his son from the “situation” and carried him down to his bedroom.
[76] In the bedroom, MP put Son#1 down on the bed and told him that when he calms down, they could talk about doing his homework. MP made it clear that if Son#1 did not do his homework, he would not be going to the movie. He never hit Son#1 and then he left his son in the bedroom to calm down.
[77] After MP left Son#1 in his bedroom, he saw Son#2 sitting on a couch, colouring with the dog beside him. MP described the house as being a split entry. Between the kitchen and the living room, there is a wall 43 inches high and on the other side of that half wall is a couch which would be facing the other way. The opening in that wall, which was described by Ms. EC as a “window” is 3½ feet high by 5½ feet wide. MP said that, even today [February 2, 2021], Son#2 is not tall enough to see over that half wall and he was shorter on May 26, 2019.
[78] MP stated that when he went over to the table to pick up Son#1 to remove him from the situation, his back would have been towards Son#2’s location on the couch behind the half wall. He added that the kitchen wall is about 2 feet wide on each side of the opening and from where Son#2 was seated, the wall would have blocked his view of the kitchen table and his brother.
[79] MP reiterated that his purpose of carrying Son#1 to the bedroom was to make sure the homework was done before they went to the movie. He only intended to leave Son#1 in the bedroom for about five minutes to calm down and then they could talk things over and do his homework.
[80] MP said that after his son calmed down, he came back to the bedroom and said that if Son#1 needed help, he would help him. Son#1 came out of the bedroom, went to the kitchen table and completed his homework in about 10 minutes. The homework had been finished shortly after 11 AM and they went to the movie at noon. There were no other incidents with Son#1 that day.
[81] MP reiterated that he had only given a quick pinch of Son#1’s ear to get his attention and then carried him, using both of his arms being placed under his son’s armpits. In the bedroom, the bed is located just inside the door and MP put his son down at the end of the bed. Son#1 did not have any marks on his ears or any injuries because of his actions.
[82] MP said that his son began crying when he put him down on the bed in the bedroom but was not crying at the kitchen table. Son#1 did whimper a little bit before doing his homework. MP stated that, throughout this interaction with his son, Son#1, he was not angry.
[83] When asked about the involvement of Child Protective Services, MP stated that his ex-wife and her partner had called that agency in relation to his parenting on 13 prior occasions. When they contacted that agency in relation to the events of May 26, 2019, that led to his 14th contact with Child Protection Services.
[84] As a result, and for about two months after May 26, 2019, MP had no contact whatsoever with his two sons. He was able to see them for a few hours every other weekend until Christmas 2019. However, since Christmas 2019, MP has not seen Son#1 and he has been in Family Court with respect to visitation and parenting of him. He still sees Son#2 on a schedule similar to the one described during the trial.
[85] On cross-examination, MP confirmed that Son#1 has been diagnosed with ADHD since he was eight years old and in grade 2. He does take medications for that, but MP said that he still does not listen well. On May 26, 2019, MP had to call him several times to stop playing video games and come upstairs to do his homework. MP stated that he was not frustrated when Son#1 did not immediately come upstairs.
[86] With respect to the timing of this incident, MP said that it was about 10:30 AM on May 26, 2019 when he called down to Son#1 to stop playing with the PlayStation and to come upstairs and do his homework. The movie theatre was only 10 minutes away from his place and that he usually likes to arrive there about 15 minutes before the movie starts. He did not feel that there was a “time crunch” to get to the movie, after Son#1’s homework was done. If Son#1 had not done his homework prior to the movie, then the consequence would have been that he would not have taken his sons to the movie.
[87] With respect to the homework, when Son#1 finally came upstairs and sat down at the kitchen table, MP said that is when Son#1 told him that “mom and KM help me, why won’t you.” MP said that he responded that they do not help him any more than he does. MP added that he did not make any physical contact other than a light touch of his son’s head after he came upstairs and walked by him to sit at the kitchen table.
[88] MP said that the quick pinch of the ear was not to inflict pain but was done to get Son#1 to stop what he is doing, so they could talk. When Son#1 continued to refuse to do his homework, MP placed both of his arms under his son’s armpits, lifted him up and carried him to the bedroom. As he walked to the bedroom, Son#1 was screaming and yelling at his father, saying that he was not going to do his homework and he did not have to listen to him. MP said that, at that point, Son#1 “was beyond” and he felt it was necessary to remove him “from the situation,”
[89] On further cross-examination, MP stated that he did not lift up Son#1 by using two hands placed under his son’s jaw. He did not throw his son down onto the bed in the master bedroom, nor did he put him down hard on the bed. MP said that, although his son was flailing his legs and kicking him as he walked down the hall to the bedroom, he put his son down at the end of the bed. He was not frustrated or angry or raising his voice at this time, his temper was not elevated, and he did not throw his son down hard on the bed.
[90] With respect to the two times that he called his son to come upstairs and do his homework, but his son refused to do so, MP agreed that he raised his voice to be assertive and Son#1 did come upstairs after the third time that he called downstairs. He was not frustrated because he had to call his son three times to come upstairs and do his homework.
[91] In terms of MP’s discipline of Son#1 and Son#2, he said that it was not the first time that he had pinched the ear of Son#1, but it was not a common practice. However, he added that, in the past when he pinched Son#1’s ear, it did not cause any pain and his son listened to him. In the past and on May 26, 2019, it was always a pinch motion on the ear, not a twist of the ear. The purpose of the pinch of Son#1’s ear on May 26, 2019, was to stop him from continuing in his “high state and being emotionally oppositional or destructive.” It was used to give his son a quick second to calm down and then they could talk, not to inflict pain.
[92] On further cross-examination, MP insisted that when Son#1 said that his mother and [KM] helped him more with the homework, he was not bothered by that remark and it had nothing to do with his physical response. MP stated that when he placed Son#1 on the bed in the master bedroom he did not strike him. After he left Son#1 for a few moments to calm down, MP did not come back into the bedroom and, once again, MP said that he did not hit his son.
[93] On further questioning, MP said that Son#1’s height was probably less than 40 inches in May 2019 and he weighed approximately 50 pounds. He agreed that he would have no problem to pick him up, but again, denied that he ever picked him up by using both hands under his neck. MP also denied ever carrying his son down the hall with his hands around his neck.
[94] On re-direct, MP confirmed that he had a very good recall of all of these events, because once he heard about the allegations relating to May 26, 2019, about five days later, he has been through numerous interviews with social workers and prepared several affidavits for court hearings in order to resume his contact and parenting role with the boys. He has talked to numerous people about May 26, 2019 about 100 times and that the pinch of Son#1’s ear was designed to get his attention from the elevated tone and heightened and defiant state that he was in at the time.
Analysis:
[95] At the outset of my analysis, it is important to note the general principles which apply in all criminal trials. First, in a criminal trial the burden is on the Crown to prove the charges against any accused beyond a reasonable doubt. Furthermore, MP is presumed to be innocent of the charges before the court unless I conclude that the Crown has proved his guilt beyond a reasonable doubt. The burden of proof is on the Crown and it never shifts to him.
[96] The presumption of innocence and the requisite standard of proof beyond a reasonable doubt are fundamental principles in our criminal law. The Supreme Court of Canada has established in cases such as R. v. Lifchus, [1997] 1 SCR 320 and R. v. Starr, [2000] 2 SCR 144 that “reasonable doubt” does not require the Crown to prove the allegations to an absolute certainty. Those cases have determined that a “reasonable doubt” does not involve proof to an absolute certainty, but more is required than proof that the accused is probably guilty.
[97] The Supreme Court of Canada has also pointed out that a reasonable doubt is not based upon sympathy or prejudice, nor is it an imaginary or frivolous doubt. It is a doubt based upon reason and common sense which is logically connected to the evidence or the lack of evidence. Reasonable doubt may arise if the Court determines that the evidence called by the Crown was vague, inconsistent, improbable, or lacking in cogency. Of course, reasonable doubt can also arise from testimony of an accused or any other defence evidence.
[98] The key issue in this trial requires an assessment of the credibility and reliability of the testimony, taken in the context of all of the evidence adduced at trial, as well as reasonable inferences from proven facts to determine whether I am convinced beyond a reasonable doubt of the guilt of the accused person. In considering the evidence adduced at trial, I may believe all, some, or none of the evidence of a witness or accept parts of a witness’s evidence and reject other parts.
[99] There are many tools for assessing the credibility and reliability of a person’s testimony. First, there is the ability to consider inconsistencies or weaknesses in the evidence of witnesses, including internal inconsistencies (that is, whether the testimony changed while on the stand), prior inconsistent statements, and external inconsistencies (that is, whether the evidence of the witness is inconsistent with independent evidence which has been accepted by the Court). Second, I can assess the attitude and demeanour of the witness, for example, were they evasive, sincere, or belligerent and assess their ability to observe and recall events in responding to questions. Third, I can assess whether the witness has a motive to fabricate evidence or to mislead the court due to kinship, partiality or self-interest, but I disregard this factor if an accused person testifies as it affects every accused in an obvious way. Finally, I can consider the overall sense of the evidence and when common sense is applied to the testimony, whether it suggests that the evidence is impossible or highly improbable.
The Evaluation of Children’s Evidence:
[100] It is also important to set out a few critical points with respect to the evaluation of evidence of children. Firstly, it is important to note that the Supreme Court of Canada in R. v. W(R), [1992] 2 SCR 122, held that there is no assumption that the evidence of children is always less reliable than that of adults. In the unanimous decision, McLachlin J. [as she then was] stated that it may be wrong to apply adult tests for credibility to the evidence of children, since children may experience the world differently from adults. Therefore, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. Common sense must be applied and the strengths and weaknesses of the evidence in the case considered.
[101] Secondly, with respect to section 715.1 of the Criminal Code which provides a statutory exception to the rule that hearsay is inadmissible, this section permits a child’s out-of-court statement to be admitted for the truth of its contents unless the presiding judge is of the opinion that its admission would interfere with the proper administration of justice.
[102] Thirdly, it is important to note that the case law has established that, even if the child has an independent present memory of the events which were related to the Court during their trial testimony, Cory J. in R. v. CCF, [1997] 3 SCR 1183 at para. 43 held that a video made shortly after the incident is the “best account” of what occurred and, in his opinion, would be a “great assistance in augmenting a child’s testimony at trial.”
[103] Fourth, it is important to remember that the video recording that is consistent with the child’s in-court testimony is not “corroborative” evidence. Corroborative evidence comes from a source other than the witness himself or herself. As a result, a prior consistent video statement cannot be adduced to bolster the credibility of the witness. Therefore, consistency between the video recording and the in-court testimony cannot add weight to the child’s evidence. Inconsistencies between the video recording and the child’s in-court testimony go to weight, but consistencies do not. The fundamental principle is that a person’s testimony does not become more probable or trustworthy, simply because it was repeated, no matter when or how many times it was repeated: see R. v. JA, 2006 BCCA 258.
[104] Fifth, as indicated previously, prior consistent statements are generally inadmissible: see R. v. Stirling, 2008 SCC 10 (CanLII). In that case, the Supreme Court of Canada noted that there are 2 primary justifications for the exclusion of such statements: first, they lacked probative value [at para. 5] and secondly, they constitute hearsay when adduced for the truth of the contents.
[105] However, the Supreme Court of Canada also noted in Stirling, supra, at para. 5 that one of the exceptions to the general exclusionary rule is that prior consistent statements can be admitted where it has been suggested that a witness has recently fabricated portions of his or her evidence. Admission on the basis of this exception does not require that an allegation of recent fabrication be expressly made – it is sufficient that the circumstances of the case reveal that the “apparent position of the opposing party is that there has been a prior contrivance.” As a result, prior consistent statements have a probative value in this context where they can illustrate that the witness’s story was the same even before a motivation to fabricate arose.
[106] As indicated by the evidence and the submissions of counsel, the Court’s decision in this case relates to a determination of whether the Crown has established, beyond a reasonable doubt, that the use of force by MP on his young child was not justified pursuant to section 43 of the Criminal Code. By virtue of that section, if a reasonable doubt has been raised in relation to the essential elements of section 43 of the Code, then MP must be acquitted.
[107] The essential elements of a justification for the correction of a child by force under section 43 of the Code are as follows:
• Was the accused a person standing in the place of a parent relating to the child?
• Was the child under his care at the time of the alleged offence?
• Was the force used by him relating to the child “by way of correction?”
• Did the force used by him not exceed what was reasonable under the circumstances based upon a subjective and objective analysis of the facts?
[108] The first two questions in issue can be very quickly answered. MP is the biological father and parent of Son#1. During the weekend in question, he was caring for his child pursuant to a shared parenting relationship with his ex-spouse.
[109] In addition, since section 43 of the Criminal Code refers to the “correction” of a “child” through the use of force, it is important to determine whether the alleged victim would be considered as a “child” by virtue of his or her age or character in relation to a parent, guardian or a schoolteacher. In this case, Son#1 was just under 10 years of age at the time of the alleged assault before the Court. He was about 10½ years old when he testified in court. There can be no doubt that Son#1 was a “child” at the time of this incident who was under the care of his parent.
Was the Force Used by Him Relating to the Child “By Way of Correction?”
[110] This third question involves the determination of the essential element that the use of force may only be justified if it was intended and applied “by way of correction” of the child. In Canadian Foundation for Children, supra, at paras 23 to 25, Chief Justice McLachlin outlined “two limitations on the content of the protected sphere of conduct” covered by the phrase “by way of correction:”
“[24] First, the person applying the force must have intended it to be for educative or corrective purposes: Ogg-Moss, supra, p.193. Accordingly, section 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 page 193.
[25] Second, the child must be capable of benefiting from the correction. This requires the capacity to learn and the possibility of successful correction. Force against children under two cannot be corrective, since on the evidence, they are incapable of understanding why they are hit [trial decision, (2000), 49 O.R. (3rd) 662 (Ontario SCJ) at para. 17]. A child may also be incapable of learning from the application of force because of disability or some other contextual factor. In these cases, force will not be “corrective” and will not fall within the sphere of immunity provided by section 43.”
[111] In this case, I find the evidence of Ms. EC and MP established that Son#1 had been diagnosed with ADHD and took medications for that condition. Son#1 acknowledged that he had been told that he has ADHD and he confirmed that the prescribed medications help him to stay focused and that he had taken them on the morning of the day in question. The evidence of his parents also established that Son#1 could be oppositional and defiant at times.
[112] Although I find that the evidence established that Son#1 had ADHD and, at times, could be oppositional and defiant, I find that there is no evidence before the Court that either one of those conditions or any other conditions or disability rendered Son#1 incapable of learning.
[113] In terms of the answer to this third question as to whether the force applied by MP to his son was “by way of correction,” based upon the comments of Chief Justice McLachlin in the Canadian Foundation case, it is important to determine the context in which the use of force was applied and whether it was a “reasoned use” to address the actual behaviour and was designed to restrain, control or express some symbolic disapproval of the child’s behaviour.
[114] With respect to this factual issue and the evidence of Son#1, Son#2 and MP, I find that their evidence provided a relatively consistent view of the Son#1’s actual behaviour and the context in which it was being exhibited, prior to MP’s decision to apply some force to address that behaviour. The overarching context in which this whole situation arises is that Mr. MP had separated from the boys’ mother some time prior to their divorce in 2014 and between 2014 and 2019, they were access and custody arrangements in place to share their parental responsibilities.
[115] Furthermore, with respect to the overarching contextual background to which this allegation comes before the Court, I find that the evidence established there had been numerous complaints by the boy’s mother and her partner to Child Protection Services, by her estimation only on four or five occasions compared to Mr. MP’s specific recollection of 13 prior occasions with the allegations related to May 26, 2019 being the 14th occasion.
[116] In terms of the context in which the allegation before the court arises, I find that the evidence of those three witnesses established that this incident occurred on May 26, 2019, which was a Sunday morning. There is no dispute in the evidence that on that Sunday morning, Son#1 was playing on his PlayStation in the lower level of the house when, on several occasions, Mr. MP called him to come upstairs to do his homework. MP explained that he wanted to ensure that Son#1’s homework was done before noon as his plan was to take his two sons to a movie that afternoon and return home prior to 4 PM which was the pre-arranged time for the transfer of access and custody to the boy’s mother.
[117] Furthermore, by way of contextual background, I find that the evidence established that, following a verbal interchange between MP and his son, Son#1 and some force being applied by MP to his son, for which quite differing versions were presented in evidence, Son#1 returned to the kitchen table and completed his homework. Ms. EC acknowledged that Son#1’s homework was done prior to him arriving at her house, but in her opinion, which would appear to be consistent with the overarching context of the relationship between the parents, she gratuitously added that it was “atrocious.”
[118] Thereafter, I find that there is no dispute in the evidence that MP and his two sons went to the movie that afternoon, returned home prior to 4 PM and then boys left his house to be with their mother.
[119] As I mentioned, with respect to the actual behaviour and verbal interchange between MP and his son which preceded his application of some force to Son #1, I find that there is, in reality, no serious dispute between the evidence of MP and his two sons. They were the only ones present in his house when the assault of Son#1 is alleged to have occurred.
[120] In that regard, I find that on that Sunday morning, it was acknowledged by Son#1 that he was playing PlayStation in the lower level of his house and his dad told him to come upstairs to do his homework but he did not want to come upstairs or do his homework. According to the evidence of MP as Son#1 confirmed on his cross-examination, his father called him a couple of times to come upstairs to do his homework without raising his voice. When Son#1 came up to the kitchen table, on cross-examination he confirmed that his father spoke to him in “normal voice” to get his homework done.
[121] I find that when Son#1 finally came upstairs, MP had already laid out his son’s homework on the kitchen table for him to do. Once Son#1 was seated at the kitchen table, sometime between 10:30 AM and 11 AM on May 26, 2019, I find that MP made it clear to his son that he wanted him to have his homework done before they went to see a movie at noon. Son#1’s evidence was that he told his father while downstairs that he didn’t feel like doing his homework and that when he came upstairs and was at the kitchen table, he told his dad, once again, that he did not want to do his homework.
[122] Based upon this evidence, which is not in dispute, I find that there was a verbal disagreement between father and son in relation to whether Son#1’s homework would be done at all or done before going to the movie or whether the offer of going to the movie would be withdrawn altogether if the homework was not done.
[123] As the discussions with respect to the homework being done continued, once again, I find that there is, in reality, no dispute in the evidence with respect to what happened next as Son#1’s evidence was consistent with what was stated by MP, in questioning why he had to do his homework at that time and adding that his mother and stepfather help him more than his father does. However, MP also added that, after his son said that he was not going to do the homework and that his mother and the stepdad help him more than him, Son#1 slammed his pencil down on the kitchen table, which is certainly consistent with his statement that he did not want to do his homework.
[124] According to Son#1, it was after that remark that his father applied force by coming over to him and twisting his ears, picking him up from the kitchen table, carrying him to the bedroom and throwing him down onto the bed.
[125] According to MP, after Son#1 made the comment that he did not help him as much as his mother and stepfather did and threw down his pencil to indicate that he did not want to do his homework, MP continued talk to his son, for a few moments, in a normal voice about getting the homework done before going to the movie. MP stated that this conversation ended when Son#1 yelled at him “I don’t have to listen to you.” MP’s view was that Son#1’s comments were now being “oppositional and defiant.” In addition, since Son#1’s voice was raised and he spoke in an “aggressive” tone, MP felt that it necessary to “remove” his son from the “situation” and carry him down to the bedroom where he put his son down on the bed and told him to calm down.
[126] The evidence of Son#2, who was seven years old when he testified in court as well as during the interview with the police officer and social worker, was that he recalled his father and his brother yelling at each other after his brother said something like “you haven’t been helping me with my homework.” On cross-examination, he agreed that he heard his brother tell his father a couple of times that he would not do his homework after he had been asked to do it, but was not able to recall the exact words.
[127] Based upon the evidence, leading up to a physical intervention by MP, I find that his attempts to verbally convince his son to do his homework were unsuccessful. In addition, in continuing to refuse to do his homework, I find that Son#1 exhibited oppositional and defiant behaviour by yelling at his father in an aggressive tone on the morning of May 26, 2019, before MP believed that it was necessary to remove his son from the “situation.” I find that, at that point, MP decided to use some force to remove his son from the kitchen table, carry him to the bedroom and allow him some time to calm down and reconsider finishing his homework in time for MP to take his two sons to a movie starting around noon on May 26, 2019.
[128] In those circumstances, I find that the use of force by Mr. MP at that point in time on May 26, 2019 was “by way of correction” to the oppositional and defiant behaviour exhibited by his son yelling at his father, after MP’s attempts to have a conversation and reason with his son to do the homework before going to the movie, were entirely unsuccessful.
[129] I accept MP’s evidence that, at the point when he decided to use some force to remove his son from the “situation” that had developed, Son#1 was in his words “beyond” and MP wanted him to calm down and do his homework. As it turned out, Son#1 did return to the kitchen table a few minutes later, took about an hour to complete his homework and then, MP took his two sons to the movie that afternoon.
[130] There is no dispute in the evidence that after the homework was done, I find that MP and his two sons went to the movie, there were no other incidents that afternoon of a verbal or physical nature between MP and Son#1, before the boys left for their mother’s place.
Did the force used by him not exceed what was reasonable under the circumstances based upon a subjective and objective analysis of the facts?
[131] With respect to this final issue, unlike the quite consistent evidence offered by the witnesses from which I have concluded that Mr. MP’s use of force was “by way of correction” to address the comments and actions of his son in refusing to do his homework, I find that the issue of the reasonableness of the force utilized by Mr. MP is further complicated by diametrically opposed descriptions related to the court of the force applied by him to Son#1.
[132] In his video recorded evidence, which was admitted as part of the evidence pursuant to section 715.1 of the Criminal Code, made shortly after the alleged assault, Son#1 described the force applied to him by his father. As I previously indicated, in R. v. CCF,[1997] 3 SCR 1183, the Supreme Court of Canada considered that the video recorded evidence created a record of what is probably the “best recollection” of the event of a witness or victim who was under the age of 18 years at the time of the alleged offence. The video recorded interviews of Son#1 and Son#2, were also admitted as part of the evidence pursuant to section 715.1 of the Criminal Code.
[133] In addition to their video recorded evidence, both Son#1 and Son#2 testified in court and were cross-examined by Defence Counsel. It should be noted that the admission of the video recorded evidence pursuant to section 715.1 of the Code, forms part of the witnesses’ evidence in chief as an exception to the hearsay rule and does not fall within the rule against prior consistent statements.
[134] In his video recorded testimony, Son#1 stated that, after refusing to do his homework, and making remarks about who helps him more, his father came over to him and twisted both of his ears, picked him up by his head under the chin, then carried him and threw him down on his father’s bed. Son#1 confirmed that he did not have any marks on his ears or on his back. A few moments later in the interview, Son#1 said that his father hit him in the back with an open hand and told him to come to the kitchen and do his homework.
[135] Son#1 also told the police officer and social worker that if he did not follow the rules at his father’s place, the discipline was usually being grounded for a while, sometimes twisting the boys’ ears, which hurts for a while or losing the use of his PlayStation for a while or his father would simply talk to the boys about the issue. Son#1 added that losing the PlayStation for a while or talking to the boys was what happened “most of the time” if he was in trouble at his father’s place.
[136] During the trial, Son#1 repeated that his father had twisted his ear first, then picked him up by his head and carried him for 3 to 5 seconds down the hall to the bedroom. Son#1 stated that he thought his father’s mood was “angry” because of the look on his face.
[137] On cross-examination, Son#1 agreed that he had not done his homework, he had told his father that he did not want to do the homework and said that he got more help at his mother’s place with his homework, before MP twisted his ears. He maintained that his father picked him up with his hands “around his chin” and not by placing his arms under his arms to carry him to the bedroom. He agreed with Defence Counsel that his father had not thrown them down on the bed “very hard,” but he flipped over and hit his head and it hurt. Son#1 also agreed with Defence Counsel that there were no marks anywhere on his body, he was not in any pain when he got back to his mother’s house and that his father’s “ear twist” only hurt for a couple of seconds.
[138] In addition, Son#1 confirmed that his father did not raise his voice when he called him to come upstairs a couple of times nor did he raise his voice while he was doing his homework.
[139] As mentioned, a video recorded interview of Son#2 which was conducted by a police officer and a social worker, was also admitted as evidence in the trial. Although Son#2 was in the living room playing with the dog, he heard his brother yell at his dad about the homework. Then, from his vantage point in the living room and apparently looking through an opening in the wall which started at about his height, Son#2 related a quite different description of what occurred by saying that his father twisted both of Son#1’s ears, then picked up his brother by his ears and carried him to the bedroom where he threw him down on the bed. He acknowledged that he did not see his brother being thrown down on the bed but said that he heard the noise of his brother going onto the bed. After that, Son#2 also said that MP had spanked his brother’s bum and that he heard the noise of that spank. Once again, Son#2 acknowledged that he did not see that happen
[140] During his direct examination in the trial, Son#2 stated that his father had used both hands to pick his brother up by his ears, walked to the bedroom and threw him on his bed. He also confirmed that his dad did not touch any other part of Son#1’s body when he took him to the bedroom. In addition, he said that when his father carried his brother to the bedroom, his brother’s feet were off the ground and he was kicking at his dad.
[141] On cross-examination, Son#2 said that he heard his brother and father yelling at each other about the homework. He also believed that his brother was being punished for not doing his homework and agreed that his father had tried to get Son#1 to do his homework for 5 to 10 minutes before his father twisted his brother’s ears.
[142] For his part, MP said that when Son#1 refused to do his homework and stated that his mother and stepfather help him more then him. Then, MP said that his son slammed his pencil down on the table and said that he did not have to listen to his father. It was at that point that MP decided to give his son a little twist or pinch on his left ear, because he is right-handed. His intended purpose from that twist was as a form of discipline to stop Son#1 from his defiant and oppositional behaviour.
[143] However, MP stated that the twist of the ear was only for a moment and then as Son#1 raised his voice and his tone became more aggressive in refusing to do the homework. It was at that point that Mr. MP decided, by way of corrective action that it was necessary to remove Son#1 from the “situation” which had developed at the kitchen table by placing both of his arms under Son#1’s arms and carrying out him of the kitchen to the bedroom.
[144] MP stated that as he was carrying his son under the arms the short distance to the bedroom, he felt that his son was now “beyond” and it was necessary to remove him from the situation. He denied, on cross-examination lifting his son up by placing two hands under his jaw. He denied carrying his son to the bedroom by both ears and he stated that he did not throw his son down on the bed in the master bedroom or throw him down hard on the bed. However, he added that as he carried his son under the arms to the bedroom, Son#1 was flailing his legs and kicking at him, which had not been mentioned by Son#1 but had been stated by Son#2.
[145] During his direct evidence and cross-examination, MP maintained that neither the quick pinch of Son#1’s ear or carrying him under the armpits down the hall and putting his son down on the bed were done out of anger or frustration. MP maintained that his words and actions were intended to address the issue of his 10-year-old son yelling at him in an aggressive tone in what he regarded as defiant and oppositional behaviour, by removing him from the “situation.”
[146] In essence, although he did not express it in this manner, I find that MP’s use of force was applied to remove Son#1 from the kitchen “situation” and to give him what amounted to a “timeout” to calm down and then complete his homework. In effect, MP’s actions were what Son#1 had described as being his father’s reaction to when he was in “trouble” at his father’s place “most of the time.”
[147] With respect to the force applied by MP, I find that Son#1 acknowledged, during the video recorded interview by the police officer and the social worker that he did not have any marks on his ears or on his back. He also agreed with Defence Counsel that there were no marks anywhere on his body nor was he in any pain when he got to his mother’s house shortly after 4:00 PM on May 26, 2019. Son#1 also agreed with Defence Counsel that his father’s “ear twist” only hurt for a couple of seconds.
[148] Furthermore, Son#1’s mother, EC confirmed that Son#1 had not reported any of this to her upon arriving at the house, but Son#2 had reported that there had been an incident at their father’s house that morning. Although she felt that her son was “mopey” and seemed sad when he got back to her house, Ms. EC confirmed that she purposely checked Son#1 over and she found that there were no marks or any injuries on him.
[149] When I consider the evidence of both Son#1 and his mother that there were no marks or any injuries on him, I find that, if Son#1 had been picked up by both hands under his chin and carried down the hall to the bedroom, it would be likely that there would have been some bruising or significant marks. However, there is no evidence that any bruises or significant marks being present.
[150] On the other hand, with respect to Son#2’s statement that Son#1 was picked up and carried to the bedroom by his father holding both of his ears, I find that that description of Son#1’s removal from the kitchen to the bedroom is completely inconsistent with Son#1’s own statement that he was carried to the bedroom with both hands on his neck or chin, without touching any other part of his body.
[151] Moreover, when I consider Son#2’s version of the force being applied to Son#1, I find that common sense and logic would indicate that it is highly unlikely that a person could lift someone off the ground by holding onto both of their ears, and then carry them, even for a short distance. Assuming that it was actually possible for MP to lift his young child off the ground and carry him by his ears, I find that logic and common sense would indicate that it would have caused Son#1 to be in excruciating pain, likely screaming and crying. However, there is no evidence that Son#1 was screaming and crying as he was carried down the hall by his father and placed on the bed.
[152] When I consider the conflicting evidence and what has been described as the usual way that MP disciplined his son, I find that the quick pinch on the ear was intended as corrective action to stop the oppositional and defiant behaviour and not intended to cause bodily harm or injury to his son. I also find that, when MP used physical force to remove his son from that “situation” which had developed at the kitchen table by carrying his son under his arms, it was only intended to be what would be described as a “timeout” to allow Son#1 to reflect on his behaviour, reconsider doing his homework and then having the opportunity to go with his brother and father to a movie that afternoon.
[153] In the final analysis, I cannot conclude that Mr. MP acted out of frustration and anger, but rather, I find that he applied reasonable force under the circumstances which were present to address the behaviour of his son which required correction as MP’s use of conversation and negotiation had been unsuccessful in bringing about the corrective action. The use of the physical force was not intended to hurt or harm Son#1, but rather, I find it was utilized for corrective action and discipline of his son for being defiant, argumentative and aggressive in tone in refusing to get his homework done in a timely manner.
[154] Moreover, referring to the Supreme Court of Canada’s comments at para. 24 of the Canadian Foundation for Children case, supra, I find that Mr. MP’s actions did not amount to what might be referred to as an “outburst of violence against a child motivated by anger or animated by frustration.” I find that he utilized a reasoned use of force that was designed to restrain, control and express some symbolic disapproval of his son’s behaviour.
[155] Having come to those conclusions, I find that the Crown has not established all of the essential elements of an assault charge beyond a reasonable doubt. In addition, considering the immunity of force being applied by way of correction in section 43 of the Criminal Code, I find that the force applied by MP was not in excess of what was reasonable in the circumstances. For all of those reasons, I hereby find MP not guilty of the charge before the court.
Theodore Tax, JPC