WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:
486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2.1) OFFENCES – The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
CITATION: R. v. A.C., 2025 ONCJ 660
DATE: 2025 12 11
COURT FILE No.: Pembroke 24-37100497
BETWEEN:
HIS MAJESTY THE KING
— AND —
AC
Before Justice J.R. Richardson
Heard on November 13, 2025
Reasons for Judgment released on December 11, 2025
Richard Morris.................................................................................... Counsel for the Crown
Michael Figol............................................................................... Counsel for the Defendant
J.R. RICHARDSON, J.:
Introduction
1AC is charged with:
a) Assaulting BB on April 2, 2024;
b) Assaulting SB on April 2, 2024; and
c) Breaching a Recognizance pursuant to section 811 of the Criminal Code.
2The Crown elected to proceed summarily.
3I was advised at the outset of the trial that identity and jurisdiction are admitted.
4The Crown invited the Court to acquit AC of the charge of assaulting SB and breaching his recognizance. Consequently, the issue in this case is whether the Crown has proven beyond a reasonable doubt that AC assaulted BB.
5For the reasons that follow, I find AC not guilty as charged.
The Context of this Case
6This case involves allegations of assault made by a parent or person in place of a parent, AC, against an eleven-year-old boy, BB, who suffers from mental health issues.
7In pleading not guilty, AC advanced several defences, including section 43 which exempts some exercises of physical control over children for the purpose of correction.
8The availability of the defence in section 43 continues to be very controversial, despite the passage of over twenty years since the Supreme Court found it constitutional and provided detailed direction to trial courts on its interpretation.
9I have touched on some of those controversies below.
10Parenting is one of the most difficult endeavours known to humankind.
11Children do not come with an owner’s manual.
12Children with mental health issues are even harder to understand and manage.
13Parenting skills are passed from generation to generation.
14Good parenting is something that one often learns from observing the examples that their elders have set. If a person is subjected to poor parenting – or they are robbed of the opportunity to be parented at all – there is a stronger likelihood that they themselves will turn out to be poor or absent parents.
15Sometimes, experiencing poor parenting will result in the opposite effect. A child who has been reared by poor parents will sometimes be able to develop the insight to try to be a better parent and dedicate themselves to doing so.
16There is increasing polarization in Canadian society about when it is appropriate for the law to intervene with respect to the parenting of the children.
17Many see parenting as a private matter upon which the state should not tread.
18Others see it as a public matter about which there needs to be considerable education. In their view, the state should intervene to ensure that people parent appropriately and correct those who do not. Systemic poor and absent parenting can have devastating and far-reaching social and financial costs.
19As I illustrate herein, the legislation and caselaw attempts to balance these competing views. Like any balancing exercise, for many, the resolution will never be perfect.
20It is an ongoing process that must be informed by advances in child psychology.
21It must also recognise that like any human endeavour, there is no such thing as a perfect parent and the law must resist imposing that standard.
22This case exposes this tension.
The Evidence of CC and the Video Surveillance of the Incident
23CC is the spouse of AC. They have four children:
a) SB who was 12 at the time of the incident;
b) BB who was 11 at the time of the incident;
c) W who was five at the time of the incident; and
d) L who was a baby at the time of the incident.
24BB has been diagnosed with ADHD and has a history of anger issues. On April 2, 2024, he became extremely agitated despite having taken his prescribed medication, Risperdal. That morning, he began throwing objects, including one item which struck L’s bouncy chair. This made him angrier. Shortly afterward, BB went to the kitchen drawer, retrieved a large knife, and threatened to kill everyone in the house, saying he would “slit their throats”. CC stated that this was not the first time BB had made such threats.
25CC intervened after BB struck her. She restrained him and managed to take the knife from his hands. AC got up during the altercation. She surmised that he was “protecting others” from BB. AC grabbed BB by the legs, but BB quickly got to his feet and sustained no injuries. CC tried to get BB to the medicine cabinet for additional medication, but he refused.
26CC described BB’s ongoing hostility toward L, suggesting jealousy or middle-child syndrome. She said BB hated L and abused L whenever possible. This was the first time BB had thrown something at L, but he had previously accessed knives in unrelated incidents involving his sister. CC noted that BB remains difficult to discipline and that neither her nor AC has a definitive method of control. She opined that AC is generally calmer.
27CC also disclosed that Family and Children’s Services (“FCS”) have been involved from time to time and that she has previously called the police in August for similar threats involving knives and harm to family members.
28CC explained that her father pressured her to call the police and report the incident. She did not consider AC’s actions abusive and she believed that they were justified in the circumstances.
29With respect to how she succumbed to her father’s pressure, CC stated that she had suffered a prior sexual assault and postpartum challenges.
30BB remains in CC’s custody. Since the incident, the dosage for his medication has been significantly increased, which has helped reduce his outbursts. CC has also engaged in school counselling and attempted to learn coping strategies, calming techniques and grounding methods. She stated that before April 2, 2024 she had no formal training to manage BB’s behavior.
31When the incident occurred, CC first attempted to get BB to take his medication, but he refused. She then tried to place him in a time-out.
32A video of the incident from a security camera installed in the kitchen was entered into evidence as Exhibit 1. CC stated the system was installed partly on the suggestion of FCS. The purpose of the cameras was to protect the family, as the children had previously made statements that turned out to be false. Cameras were placed in the kitchen, downstairs, in the garage, and at the door. CC did not recall when the system was installed but believes it uses a hard drive for storage.
33The quality of the video is not great. Rather than properly extract the video so it could be clearly shown in Court, the police took a video of the video with their own cell phone. The video, which was 38 seconds long, reveals the following:
a) When the video opens, the camera shows the kitchen of the home where the incident occurred. A kitchen island is in the foreground. CC has her back to the camera. BB is facing CC. There is another child seated at the island. CC testified that this child was her son W, who was eating and watching something with headphones on his Ipad. CC is holding BB’s hands and she moves away from the camera toward the counter behind the island while holding his hands.
b) At 0:07, BB yanked CC away from the kitchen counter in the corner more toward the centre of the kitchen counter located behind the kitchen island.
c) At 0:10, another child, who CC identified as SB, entered the kitchen. CC and BB were struggling.
d) At 0:13, BB stopped yanking on CC’s arm and moved toward her. CC put her arm around BB. AC enters the kitchen by walking around the island and approaching BB and CC from the left. CC testified that at this point she turned her head and spoke to AC. She does not recall what she said. She also stated that BB will often start hugging her in the midst of a tantrum. That is what he was doing when he moved toward her. She stated that BB was also now focused on AC. She believed that BB was aware that he was about to be disciplined.
e) At 0:14, BB moved so that CC was between him and AC. CC has her back to AC.
f) At 0:18, AC moved toward BB. AC moved CC out of the way to get closer to BB. Up to this point, CC stated that she was trying to take BB from AC and lead BB to a time-out. She did not recall feeling AC’s physical presence, although the video clearly depicts this. She stated that she backed away to allow AC to discipline BB.
g) At 0:20 AC moves so that BB is out of the view. BB is now between AC and the kitchen counter which runs behind the island. AC has his back to the camera. CC is to AC’s left by a distance (given their arm lengths) which I estimate at four to five feet (two arm lengths).
h) At 0:24, AC and BB struggle. CC moves past them to go toward the corner on the right of the kitchen counter behind the island. CC testified that the cupboard where BB’s medication is stored is in this corner and she was trying to get more medication. She also stated that she was trying to defuse the situation and stop the “chaos in the house” which she attributed to BB. She stated that in her belief, AC did not contribute to the “chaos in the house”.
i) At 0:28, AC lifts BB up by the shoulders. BB falls forward. AC bends over BB. AC grabbed BB by his legs or feet. They continued to struggle while BB was on the floor.
j) At 0:29, CC turned her head to watch. She is still at the right side of the counter that is behind the kitchen island.
k) At 0:32, CC left her position and moved closer to AC and BB who were still struggling. She is motioning with her arm.
l) At 0:38, the video ends.
34CC explained that the video was taken after the incident with the knife. She stated that she looked for a longer video which showed the knife incident and events before what was recorded but she could not find it.
35CC stated that during the altercation, BB struck her on her right cheek. She restrained him by holding his arms and told him he was not going to hurt her. The strike did not leave a mark, as BB was a child and could not hit hard, however CC emphasized the principle of the act and her concern for safety. She stated that she was worried about BB hurting her and others.
36CC stated that she was concerned about the knife and the overall situation. Her plan was to get BB to the medicine cabinet, located up and to the right, administer additional medication, and then place him in a time-out to calm down. She acknowledged that a verbal interaction occurred but could not recall specific words, explaining that she was flustered, overstimulated, and overwhelmed. BB was angry, defiant, and unruly. She attempted to reason with him for about 15 minutes.
37CC recalled telling BB they were going to get his medication, while BB repeatedly said, “No.” She admitted she did not remember what she was trying to accomplish at that moment beyond calming him down.
38CC stated that she did not want BB to get into trouble and she admitted feeling upset with AC for intervening. She believed AC’s involvement would make the situation worse because when both parents “tag-team” BB, his anger escalates.
39CC explained that in the last ten to twelve seconds of the video she was trying to get AC to stop, walk away and let BB cool down. She wanted to stop the matter from escalating further. She stated that the other children were present, and L was screaming.
Cross-Examination of CC
40CC does not recall what occurred immediately after the incident. She reported the matter to police a couple of weeks later, after speaking with her father and showing him the video. CC explained that her father convinced her to report it because she was in a very bad mental state at the time. She added that she believed her father’s dislike for AC influenced his advice.
41Regarding BB throwing objects at L, CC could not recall the specific object but confirmed it hit near L’s head while L was in a bouncy seat close to where CC was standing. CC said that when BB took the knife, he made a throat-slashing gesture with his right hand, moving from left to right.
42CC confirmed BB did not scream in pain during the incident and he did not complain of being hurt. CC explained that BB has a designated time-out spot in the hallway near the garage door. When BB cannot calm down, he is placed there until he is ready to be quiet; detention there can sometimes last up to an hour. She stated that before the events depicted on the video, CC and AC were trying to put BB in time-out, but BB resisted. Eventually, BB calmed down, went downstairs, but later returned “on the warpath.”
43CC confirmed that after the offence, BB was assessed by a behavioral pediatrician for possible bipolar disorder. Those evaluations started in August 2024 and continued into mid-September. When the incident occurred, BB was taking 0.5 mg of Risperidone up to four times daily. CC explained that administering medication depends on BB’s mood. She noted BB becomes dangerous when sleep-deprived or if off his medication for several days.
44CC described BB’s history of violence toward his siblings. He gave his five-year-old brother a bloody nose, he punched his sister in the head, threatened to kill her, and kicked her.
45At school, BB’s behavior is worse than at home. She stated that in his last academic year, BB was suspended 12 times for violent behavior; this year, as of November when she testified, BB has already been suspended four times. She stated that one incident involved BB dragging a girl by her head and smashing her head into concrete after she insulted him. She complained that the school board responds with immediate suspensions but does not offer behavioral support. She stated that BB has now started running away from school, and she expressed frustration that the school has no plan to manage him.
46CC stated that she was seeking help through the Phoenix Centre for counseling, and she maintains regular appointments with the behavioral pediatrician and family doctor. BB’s medication is being adjusted frequently as his weight increases. His current Risperidone dosage has been adjusted to two pills five times daily and he is also prescribed Ritalin for ADHD. Despite this, there are still days when BB refuses medication and struggles to control himself.
47CC stated that advice on restraining BB varies depending on the source. Police told her to physically restrain BB when necessary. CC described an incident where an officer stood by “useless” while BB was demolishing the house, calling the situation “absolute insanity.” BB was breaking pictures, throwing items off the wall, overturning furniture such as his little brother’s highchair, and spilling things. When CC asked about the degree of force required, police advised her to physically restrain BB.
48CC stated that BB’s behavior on the day in question is consistent with how he has behaved in the past: he tries to escape when he anticipates discipline. CC compared this to her own childhood reactions. CC suggested BB may have simply “woken up on the wrong side of the bed.”
49When asked if she would take the same action again in a similar scenario, CC responded, “Absolutely.”
Questions of CC from the Court
50I asked CC for some additional background details. She stated that she does not work outside the home. She holds a Bachelor’s Degree in Criminology and a diploma in addictions counseling. CC and AC have been married for seven years. They are physically separated due to a court order related to this case. CC hopes to reconcile after the case concludes, noting that the children want their father back home. FCS has never apprehended BB and is no longer involved with the family.
Evidence of AC In-Chief
51AC testified in his own defence.
52AC was just shy of his 39th birthday when he testified. He is a member of the Canadian Armed Forces where he works as a Flight Engineer and Instructor. He has 15 years of service.
53AC stated he has a vivid recollection of the events of April 2, 2024, because he was removed from his home a couple of weeks later and he has replayed the incident in his mind ever since. He described the entire day with BB as volatile. It escalated around 5:00 p.m.
54Before the incident, AC was sitting on the couch just off camera, playing Xbox. BB had been hanging out in the basement, where there is another TV. BB was placed in time-out by AC and CC but came out shortly afterward. At that point, AC saw BB throw an object from the counter at L’s chair.
55AC intended to intervene immediately, but CC said she had the situation under control. BB then ran to the knife drawer, said, “I am going to kill all of you,”. He then dropped the knife. CC managed to grab BB’s hands, but not before BB struck her.
56AC got up when BB jerked CC. AC thought BB was trying to reach for the knives again and feared CC might get hurt. AC stated, “If someone in the house is going to get injured, it might as well be me, not the mother of four kids.” He said he was concerned for everyone’s safety. AC grabbed BB’s hands, holding them out in front of him, and tried to get BB to stand up. BB lunged forward, ended up on his side, and AC attempted to grab BB’s lower body while BB kicked his legs to break free.
57Afterward, when CC had BB’s medication ready, AC stood BB up, and CC administered the medication. BB was then ushered by both AC and CC to his time-out spot on the staircase near the garage door. AC estimated BB stayed in time-out for at least a couple of minutes. Later that evening, BB returned downstairs to play. AC explained the household rule: BB must speak calmly to leave time-out; otherwise, he returns to the spot. Once BB felt calm, he came to talk, and AC tucked him into bed.
58Following the incident, AC and CC discussed sending BB away temporarily to give BB and his siblings a break. With a four-month-old baby and limited sleep, they arranged for BB to stay with AC’s parents in Toronto for about a week and a half. AC and CC dropped BB off together, and AC later picked him up. When they returned home, police were waiting. AC said an officer met him as they pulled in and began questioning him while BB sat upstairs with another officer. AC confirmed BB interacted with police but did not discuss the event.
59AC explained why only a certain sequence of the video was recorded. The camera system has a small hard drive and cannot store continuous footage for an entire week. It is set to record only events, which causes gaps in the footage. AC noted that the system is not ideal and mentioned that they had a similar issue during a previous car theft from their driveway. He stated that if the system had captured everything, it would have shown BB throwing an object at L’s chair, AC picking BB up and standing near the pantry, CC arriving with BB’s medication, and BB being taken to his time-out spot.
60AC confirmed CC’s testimony with respect to the help that they have sought in controlling BB’s behaviour. He added that their family doctor also initiated a referral to Canada Kids in Kanata for behavioral support and medication adjustments.
61AC emphasized that his goal during the incident was to remove BB from the area and wait for CC to administer medication. He stated that he did not lose his temper, though he was upset and worried. When asked why he intervened after CC said she had control, AC explained that he feared CC might get hurt, especially given her fragile mental state following the birth of their child.
62AC expressed his belief that BB could have followed through on his threat with the knife and confirmed he was equally concerned for the safety of the other children in the room.
63When asked if he could have acted differently, AC said he could have stayed seated and let CC handle the situation, but it appeared she needed help. He noted that the medication was stored in a high cabinet, and he was unsure what BB might have done if CC had turned her back to retrieve it. AC stated that his primary focus was ensuring BB received his medication and preventing harm.
64Finally, AC acknowledged that he was under a peace bond at the time but believed his actions were not wrong. He stated that he acted to stop BB from hurting people.
Cross-Examination of AC
65AC stated that he was seriously concerned BB might have had the knife in his hand or could access it again. He explained that he thought BB was pulling CC toward the area where knives were kept. When asked why he did not react when BB initially took the knife from the drawer, AC said CC told him she had the situation under control. AC agreed that even after BB struck CC in the face, he did not intervene immediately because he believed CC could manage the situation.
66AC admitted he does not recall CC’s first reaction or BB’s initial reaction but agreed BB’s behavior did not change significantly from these other incidents.
67Crown counsel questioned AC’s claim of having a vivid recollection, pointing out that he could not recall the object BB threw or the nature of BB’s anger when he came upstairs shouting. AC conceded these details were unclear.
68Crown counsel highlighted the fact that when AC approached BB, BB pulled in the opposite direction, and CC was between AC and BB. AC agreed that he placed his hands on CC’s shoulders and moved her aside, stating he did so gently and without intent to cause injury. AC explained that he wanted to help CC and believed the situation was escalating. He said he initially respected CC’s wish for him to stay out of it but felt it was the appropriate time to intervene.
69AC admitted that he did not know BB’s exact intention when pulling away, but he did not want to take chances. He agreed BB often resisted taking medication but said he did not understand why BB would pull away from the time-out spot or medication. Crown counsel suggested to AC that he “snapped” and decided to take control. AC disagreed with the term “snapped,” but agreed that he wanted to resolve the situation. AC again reiterated that his initial thought was BB was attempting to get a knife and he acted to prevent anyone from getting hurt.
70AC confirmed he was trying to restrain BB and move him to a safer area. He acknowledged there was a struggle but said his goal was to separate BB and maintain control. AC agreed that BB could have broken a window or caused other harm and stated he acted to prevent such outcomes.
Defence Submissions
71Defence counsel described the family’s situation as highly unusual and emphasized that both parents have made significant efforts to obtain assistance for BB’s behavioral issues. Counsel noted that BB was on medication at the time of the incident, but the dosage was insufficient to control his unpredictable and assaultive behavior. Since then, adjustments to medication and dosage have improved the situation, though the process remains ongoing.
72Defence counsel submitted that during the incident: BB was out of control; he had threatened to kill everyone, retrieved a knife and made a slashing gesture, and he threw an object at L. Defence argued that both parents reacted differently but were aligned in their overall approach: attempting to talk to BB, enforce time-outs, and administer medication.
73CC managed to control the knife aspect of the situation despite being under extreme stress, postpartum, and caring for multiple children. Counsel acknowledged that gaps in CC’s memory is understandable given her circumstances.
74Defence counsel stressed BB’s history of violent behavior and his demonstrated propensity for aggression, noting that he is capable of serious harm. He maintained that the video evidence only captured 38 seconds of the event and does not reflect the full context. He argued that this is not a family trying to be violent, but rather parents developing coping mechanisms in the absence of systemic support. The disconnect between their actions was based on their subjective perceptions during a chaotic moment.
75Defence counsel submitted that AC did not act with criminal intent. His actions were those of a parent with no assistance from authorities, acting to prevent harm.
76Defence referenced prior advice from police, who told the family to do what was necessary to prevent an assault. Counsel questioned why, if AC’s conduct were criminal, the family subsequently implemented a safety plan, sought help from relatives, and pursued healthcare interventions.
77At the Court’s reminder, defence counsel also relied on the defence of correction in section 43 of the Criminal Code. He stated that AC’s actions were clearly to defuse the situation.
Crown Submissions
78Crown counsel argued that I should reject any notion of self defence or defence of other. He reminded me that CC essentially told AC, “I’ve got this” and never changed those instructions.
79Crown counsel also noted that the video clearly shows CC acting in a manner as to protect BB from the approach of AC.
Analysis
The Legal Framework Against Which the Evidence in this Case is Applied
80As an accused person, AC is presumed innocent until the Crown proves his guilt beyond a reasonable doubt.
81Only when the Crown proves that AC committed the elements of the offence charged beyond a reasonable doubt, is the presumption of innocence overcome.
82A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone. It is a doubt that is based on reason and common sense. It is a doubt that logically arises from the evidence or the absence of evidence.
83To be satisfied beyond a reasonable doubt, I have to be sure with respect to AC’s guilt. If I am not sure, I must find AC not guilty.
84If I don’t know who to believe, I must find AC not guilty. Even if I believe that AC probably committed the offence, that is not a sufficient basis on which to find AC guilty. Probable guilt is not proof of guilt beyond a reasonable doubt.
85The appellate authorities set out the path I must follow in considering whether the Crown has established guilt beyond a reasonable doubt:
a) First, if I believe the exculpatory evidence, I must find AC not guilty.
b) Second, even though I do not believe the exculpatory evidence, if I am left with a reasonable doubt by it, I must find AC not guilty.
c) Third, even if I do not believe the exculpatory evidence and am not left in doubt by it, if I am left with a reasonable doubt on the basis of the other evidence I do accept, I must also find AC no guilty.
Only if, at the end of this exercise, I am satisfied as to the guilt of AC beyond a reasonable doubt, must I find him guilty.
86I cannot compare the accounts and decide guilt based on which account I like better.
87In following this path, I rely on my experience, reason and common sense. I must not, however, engage in stereotypical or mythological reasoning which masquerades as “common sense”.
88The evidence that is led before me is assessed by me on the basis of whether it is credible and reliable. Evidence must be both credible and reliable.
89A witness who is credible, is not necessarily reliable. A witness may be sincere and credible, but their evidence may also demonstrate that their recollections are not reliable.
90The same issue can arise where a witness “fills in the blanks” with respect to what took place. A witness may honestly and sincerely believe that a certain aspect of their evidence is true; analysis rooted in logic, reason and common sense might suggest however, that what the witness says – as honest, sincere and credible as the witness may seem – is not reliable.
91Memories fade. They can also be faulty and frail. Sincere, honest and credible witnesses can simply be wrong or make assumptions about things because of the passage of time.
The Law With Respect to Common Assault
92In order to find AC guilty of assaulting BB, Crown counsel must prove each of the following essential elements of assault beyond a reasonable doubt:
a) That AC intentionally applied force to BB;
b) That BB did not consent to the force that AC applied; and
c) That AC knew that BB did not consent to force that AC applied.
93I have little difficulty concluding that AC intentionally applied the force.
94The question of “deemed consent” is trickier.
95With respect to the issue of consent, in R. v. A.E., 2000 CanLII 16823 (Ont. C.A.), Justice Weiler of our Court of Appeal noted that in certain circumstances, a child is deemed to have consented to force applied by a parent, subject to the following limits:
a) the common law recognizes the right of a parent to apply force in a reasonable manner for the benefit of the child (at paragraph 26);
b) children may be uniquely vulnerable to the quality of care and the decisions made on their behalf by their parents (at paragraph 28);
c) “…the law must protect children and those who are defenceless from unwarranted bodily interference” (at paragraph 29);
d) “…on the other hand, persons engaged in looking after a child must be protected from state interference when acting in the best interests of the child.” (also at paragraph 29);
e) the deemed consent of the child is a “narrow exception” that is “strictly limited to conduct which is consistent with the purpose and rationale underlying the policy basis for the consent…. …the force used must have been for the purpose of caring for the child.” (at paragraph 33);
f) “…deemed consent will not apply where the force is excessive” (at paragraph 37);
g) the deemed consent of a child is limited to “the customary norms of parenting or what a reasonable parent would do in similar circumstances. This is an objective standard.” (at paragraph 40). For greater certainty, Justice Weiler noted that “[w]here the amount of force clearly exceeds what is reasonable in the circumstances or is clearly beyond the ordinary norm of parental conduct, the defence of deemed consent will not apply (at paragraph 42);
h) “… a parent has the right to apply force to a child when it is necessary to protect the child, to protect others (such as a younger sibling), and to teach a child social values and behavioural limits.” (also at paragraph 40);
i) this defence “dovetails” with section 43 (defence of use of force for correction) (at paragraph 41).
96Despite the passage of time, AE continues to be good law. See, for example, R. v. BW, 2016 ONCA 96.
97Commenting on AE, and the later case of R. v. Palombi, 2007 ONCA 486, Professor Stewart offered this helpful restatement of the law of deemed consent as it relates to children:
Parents and other caregivers (including teachers) are justified in applying reasonable force to children under their care for the purpose of carrying out their duties to the children, including providing the children with the necessaries of life, caring for the children, providing the children with medical treatment and care, protecting the children from danger, enforcing the rules of the home or the school, preventing and responding to inappropriate behaviour by the children, and demonstrating appropriate limits on behaviour. The force used must not be excessive to the purpose; moreover, the defence of deemed consent does not justify the intentional infliction of harm, degrading treatment, or actions taken in anger. The justification for the use of force is assessed from the perspective of the reasonable parent in the circumstances.
(see Hamish Stewart, Parents, Children, and the Law of Assault, 2009 32-1 Dalhousie Law Journal 1, 2009 CanLIIDocs 494 at page 25)
98I will apply the law as it relates to “deemed consent” to the facts as I find them below.
The Law with Respect to the Defence of “Correction” in section 43 of the Criminal Code
99Section 43 of the Criminal Code states:
Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.
100In Canadian Foundation v. Canada, 2004 SCC 4, the majority of the Supreme Court of Canada found that this section was constitutional and did not offend the rights of children. In doing so, at paragraphs 24, 25, 30, 35, 37, 40, 46, 51, 60 and 62, the Court interpreted the section in the following way:
a) The person applying the force must have intended it to be for “educative or corrective purposes”.
b) The section does not save “outbursts of violence motivated by anger or animated by frustration.” “[O]nly sober, reasoned uses of force are permitted.”
c) The use of force must “address the actual behaviour of the child”.
d) The use of force must be “designed to restrain, control or express some symbolic disapproval” of the child’s behaviour.
e) The purpose of the force must always be education or discipline.
f) “Reasonable force” does not except “conduct that causes harm or raises a reasonable prospect of harm”. It is limited to the mildest forms of assault.
g) The gravity of the child’s wrongdoing which is said to have led to the use of force is not relevant. The focus is on correction.
h) Corporal punishment of children under two is harmful and is not reasonable.
i) Corporal punishment of children with a disability is not corrective because the child may be incapable of learning from the application of force.
j) Corporal punishment of teenagers is harmful because it can “induce aggressive and antisocial behaviour”. It therefore is not reasonable.
k) Corporal punishment involving the use of objects such as rulers and belts is physically and emotionally harmful and is therefore not reasonable.
l) Corporal punishment involving slaps or blows to the head is harmful and is therefore not reasonable.
m) “Generally, s.43 exempts from criminal sanction only minor corrective force of a transitory or trifling nature.”
n) “There may be instances where a parent or a school teacher reasonably uses corrective force to restrain or remove an adolescent from a particular situation.”
o) The decision to “declin[e] to bring the blunt hand of the criminal law down on minor disciplinary contacts… reflects the resultant impact this would have on the interest of the child and family and school relationships.”
p) Section 43 is designed to avoid “expos[ing] the family to the incursion of state law enforcement for every trivial slap or spanking.”
q) “[W]ithout section 43, Canada’s broad assault law would criminalize force falling far short of what we think of as corporal punishment, like placing an unwilling child in a chair for a five-minute “time-out”.
101In the 21 years that have passed since the Canadian Foundation decision was released, there have been widespread calls for the repeal of section 43. In 2015, the Truth and Reconciliation Commission called for the repeal of section 43 (Truth and Reconciliation Commission Call for Action 6). More recently, in December 2025, Dr. Benjamin Roebuck, the Federal Ombudsperson for Victims of Crime, submitted as follows to Senate Committee on Legal and Constitutional Affairs:
The potential harm inflicted by corporal punishment extends beyond immediate physical effects, impacting children’s psychological and cognitive development. This contradicts the core principles of children’s rights, as recognized by various international conventions, including the United Nations Convention on the Rights of the Child. In the 2004 Canadian Foundation decision, Justices Deschamps, Binnie, and Arbour highlighted in their dissent opinion that section 43 of the Criminal Code implies that children are less worthy of protection and that this is a violation of their equality rights under section 15 of the Canadian Charter of Rights and Freedoms.
Nearly two decades later, the law has not changed. By allowing corrective force, we undermine the crucial concept of consent, which is increasingly emphasized in educational settings. In schools, anti-bullying and sexual violence prevention programs share the message that no child should be hit, kicked, or touched in a way that makes them uncomfortable. As children learn more about their rights and bodily autonomy, experiences of physical discipline violate the values children are internalizing. We send mixed messages to children if we allow physical punishment. Furthermore, under the law, we recognize that except for some particular circumstances such as in sports, adults cannot consent to physical violence. It is assault. However, Section 43 of the Criminal Code allows parents, caregivers, and teachers to use reasonable force against a child for correction.
Research from well-known scholars in the field has found that corporal punishment can have long-term psychological impacts (Durrant & Ensom, 2012). Recent studies have found that even punishment that does not leave a physical mark, such as spanking, can significantly harm a child’s brain development. The act may expose or threaten a child, which can have similar impacts on the brain as severe maltreatment (Cuartas et al., 2021).
Children may also experience adverse outcomes, including increased aggression, mental health issues, and diminished cognitive abilities (Heilmann et al., 2021; Gershoff & Grogan-Kaylor, 2016, as cited in Durrant & Kutcher, 2023). If a parent uses physical punishment, but the child does not respond or change their behaviour, the parent may increase the severity of the punishment, which could result in physical abuse (Durrant et al., 2017, as cited in Durrant & Kutcher, 2023). Studies have proven that corporal punishment does not effectively correct a child’s behaviour, challenging its intended benefit (Heilmann et al., 2021).
See Study of Bill S-251: An Act to Repeal Section 43 of the Criminal Code - Canada.ca
102It may well be that the continuing efficacy of section 43 should be re-examined in light of this new research. Chief Justice McLachlin, the author of the majority decision in Canadian Foundation noted at paragraphs 36 and 37 that “[d]etermining what is “reasonable in the circumstances” in the case of child discipline is also assisted by social consensus and expert evidence on what constitutes reasonable corrective discipline.” The Chief Justice also noted that her interpretation was largely “[b]ased on the evidence currently before the Court” and “the significant areas of agreement among the experts on both sides of the issue” (quoting from the trial decision at paragraph 17).
103A full record on the issue of the continuing efficacy of section 43 is not before me. It will have to be left to legislative action or another Court on another day.
104That is not to say that the section and the decision in Canadian Foundation cannot be applied flexibly and purposively. Every case turns on its particular facts.
105In R. v. BS, 2008 CanLII 10389 (Ont. S.C.J.), Justice Robertson was sitting on summary conviction appeal in a case where a father restrained his 15-year-old daughter in the back of his vehicle to keep her from seeing an undesirable boyfriend. The trial judge, citing section 43 and Canadian Foundation’s apparent prohibition on the use of corrective force on teenagers, convicted and granted a conditional discharge. On appeal, Justice Robertson found that there can be an “acceptable use of force to correct a child’s safety risk”.
106Her Honour further noted at paragraph 19:
He corrected her by applying force in order to control or restrain his child so as to protect her from going to an inappropriate party. He used force to express “symbolic disapproval” of her behaviour. It was clear that she was not going to stop based on common sense and discussion. His parenting toolbox was empty.
107With respect to whether the child in BS was capable of “benefiting from the correction”, Justice Robertson noted at paragraph 24,
The fact that a child will not immediately respond to correction or that the benefit of the correction is not directly visible does not mean that section 43 is inapplicable. A positive benefit or consequence of correction is not always immediately obvious in children.
108Likewise, since Canadian Foundation trial judges have tempered the prohibition against “outbursts of violence motivated by anger or animated by frustration”. In R. v. Hume, 2020 ONCJ 619, Justice Clark commented as follows with respect to a principal’s restraint of an unruly nine year old in a schoolyard:
Even if there was a very human dimension of frustration, or even a form of anger attached to some part of his overall actions, anger and correction are not mutually exclusive concepts. It is unrealistic to assume that parents and educators may discipline children, whatever the nature of the infraction, in a state of detached calm. Anger is part and parcel of correction.
109As Justice Berg summed up in R. v. Bender, 2023 ONCJ 569 at paragraph 9, “the presence of strong emotion does not necessarily deny an accused recourse to section 43.”
110I will discuss the application of section 43 to the facts of this case below.
The Law With Respect to Defence of Person
111AC claims that his behaviour towards BB was to prevent BB from stabbing and killing CC or other children. This raises “defence of person” in section 34 of the Criminal Code.
112Defence of person is based on the concepts of “self defence” and “defence of other”. It states:
34 (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
113In R. v. Khill, 2021 SCC 37, the Supreme Court interpreted section 34(1) as a focus on “the catalyst” (section 34(1)(a)), “the motive” (section 34(1)(b)) and “the response” (section 34(1)(c)).
114With respect to section 34(1)(a), “the catalyst”, the Supreme Court noted that the actions of the accused are to be judged on the basis of a modified objective standard. Justice Martin defined it this way at paragraph 57:
The question is not therefore what the accused thought was reasonable based on their characteristics and experiences, but rather what a reasonable person with those relevant characteristics and experiences would perceive….
115With respect to section 34(1)(b), “the motive”, the Supreme Court noted at paragraph 59 that the actions of the accused are judged on a subjective basis having regard to the following:
The second element of self‑defence considers the accused’s personal purpose in committing the act that constitutes the offence. Section 34(1)(b) requires that the act be undertaken by the accused to defend or protect themselves or others from the use or threat of force. This is a subjective inquiry which goes to the root of self‑defence. If there is no defensive or protective purpose, the rationale for the defence disappears. The motive provision thus ensures that the actions of the accused are not undertaken for the purpose of vigilantism, vengeance or some other personal motivation. [Citations omitted].
116With respect to section 34(1)(c), “the response”, at paragraph 62, the Supreme Court stated that the section:
…operates to ensure that the law of self‑defence conforms to community norms of conduct. By grounding the law of self-defence in the conduct expected of a reasonable person in the circumstances, an appropriate balance is achieved between respecting the security of the person who acts and security of the person acted upon. The law of self-defence might otherwise “encourage hot‑headedness and unnecessary resorts to violent self‑help”. [Citations omitted.]
117With respect to the interpretation of section 34(2), the Supreme Court noted that:
a) reasonableness is measured according to “the relevant circumstances of the person, the other parties and the act”. The Court must consider how the act happened and what role each person played. It “modifies the objective standard to take into account characteristics of the accused” (“including size, age, gender, and physical capabilities”), and “certain experiences of the accused, including the relationship and history of violence between the parties.”
b) The Court must not “simply slip into the mind of the accused. The focus must remain on what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time.”
c) “[T]he “relevant circumstances of the accused” in s. 34(2) can also include any mistaken beliefs reasonably held by the accused. If the court determines that the accused believed wrongly, but on reasonable grounds, that force was being used or threatened against them under s. 34(1)(a), that finding is relevant to the reasonableness inquiry under s. 34(1)(c). However, while s. 34(1)(a) and (b) address the belief and the subjective purpose of the accused, the reasonableness inquiry under s. 34(1)(c) is primarily concerned with the reasonableness of the accused’s actions, not their mental state.”
d) “[T]he person’s role in the incident” refers to the person’s conduct — such as actions, omissions and exercises of judgment — during the course of the incident, from beginning to end, that is relevant to whether the ultimate act was reasonable in the circumstances.”
The Findings of Fact and the Application of the Rubric in W.(D.):
Do I believe the Exculpatory Evidence?
118No.
119AC testified that he was sitting on the couch playing with his Xbox. He continued to do so when BB threatened to kill everyone, got a knife, was involved in a struggle with CC which resulted in the knife being removed from BB’s grasp, hit CC and was restrained by CC. CC told him that she had things under control. He stated that once BB started pulling CC away from the cabinet where BB’s medicine was kept and back toward the location of the knives, he intervened.
120In these circumstances, given AC’s relative inaction through most of what transpired before BB started yanking CC, I do not believe that his actions were based on the need to defend CC, or others in the house, from BB to resorting to a knife. Rather, I believe that AC intervened out of anger and frustration. He also decided that it was necessary to restrain BB to prevent further insolence and misbehaviour and have him go to his “time-out” chair.
121I further find, based on a reasoned and considered acceptance of the video evidence, that by the time that AC arrived to the area where BB was yanking CC, BB realized his father was coming and had turned to cower near his mother, going so far as to go on the opposite side of his mother and placing his mother between himself and AC. In these circumstances, the threat to the safety of CC and the family had passed. It was not necessary for AC to restrain BB to defend others.
122AC also admitted in cross-examination that by then his primary purpose had shifted to restraining BB for the purpose of assisting CC to administer medication.
123It is also clear that following the medication being administered, BB was escorted to and remained in his time-out chair.
124AC’s evidence with respect to it being better that he have a knife “buried” in him than have it buried in the mother of the children was completely over the top and I do not accept it.
Am I left in a Reasonable Doubt by the Exculpatory Evidence?
125No. Based on a considered and reasoned acceptance of the videotaped evidence, I am not left in doubt by the exculpatory evidence.
On the basis of the evidence I do accept, am I left in a reasonable doubt?
126Yes and no.
127I do not accept much of what CC had to say about her view of AC’s reactions, her recantation with respect to the decision to report what happened to the police, her hearsay evidence with respect to what she was told by some unnamed police officer (who was not called to testify) about how violent BB is and the need to restrain him any way she can.
128I am skeptical about the lack of video evidence which respect to what happened before and after the 38 seconds that were put in evidence, evidence which CC, AC or both had exclusive control over.
129I am skeptical with respect to her evidence about the involvement of the school and FCS, all of which was also unsupported hearsay.
130I find, however, that managing BB’s behaviour is a significant challenge for CC and this family. Despite the lack of detailed independent evidence about this, I find that BB has some mental health problems that are difficult to manage. I find that he needs medication to assist with that.
131I agree with CC that, generally speaking, there are insufficient resources to deal with children who have significant behavioural and mental health problems in general and in Renfrew County in particular. I agree that parents are often left to fend for themselves.
132I also find that when the incident arose, it was difficult for her to cope. I accept that she had post-partem issues as a result of the birth of her fourth child. I also accept that she had been through some other trauma which also affected her ability to cope. I note that this matter was originally scheduled to come on for trial on July 24, 2025 and the Crown sought (and was granted) an adjournment on the basis that CC was visiting her extended family in the United States. I find that without AC, she does not have a lot of extended family support.
133The simple reality is that CC needs AC to assist her with the children. She is between the veritable rock and hard-place and has chosen AC because she simply cannot cope with the children on her own. As I stated to counsel during submissions, with some exceptions, it was clear to me from the tenor of her evidence that CC was definitely on “Team AC”.
134I find that CC and AC were not, at the time of the incident, equipped to cope with four children, one of whom had serious mental health and behaviour issues.
135As I outlined with respect to the first two branches, the video evidence is a sufficient basis on which to find that when AC approached CC and BB to intervene, BB de-escalated. The video, and CC’s evidence about what happened at that point in time, makes it clear that BB feared his father’s intervention and changed from struggling with CC to being more compliant.
136I accept CC’s evidence that she told AC she had the situation under control and that she was annoyed at AC for intervening. Reflecting on the “rock and hard-place” position that she was in, she felt bad for the child that AC had intervened and she did not wish to get BB into trouble. I also find that it was her experience that BB’s behaviour escalated when she and AC “tag-teamed” him. From her vantage point, AC’s intervention was unwelcome and unnecessary.
137Importantly, I find that she was trying to tell AC to stand down, back away and let things get back under control. Although there is no sound, the video evidence supports the proposition that even after AC moved her out of the way, she remained engaged in the area and can be seen gesturing with her arms and hands.
138I note that this happened over a course of seconds. I will have more to say about that in a moment.
139I find based on the video evidence, that by this time, AC simply had enough. He intervened not to protect his wife and the other children from a serious assault by BB. Rather he intervened to assist his wife in restraining the child for the purpose of administering medication and ultimately putting the child in a time-out.
140I find, given that he did not stop and proceeded to move CC out of the way and restrain BB, even though BB had retreated from him, that he was also motivated by anger and frustration. He continued to engage BB when the situation changed, and he should have simply stood by to reinforce and support CC.
141I find that AC intended to apply force to BB, BB did not consent to the application of force and that AC knew that BB was not consenting.
The Impact of Deemed Consent
142With respect to the issue of “deemed consent”, I find as follows:
a) The force was applied for the purpose of providing BB with the necessaries of life, to wit, medication and to control his behaviour;
b) The force was applied for the purpose of providing medical care to BB, i.e. his medication;
c) The force was applied for the purpose of preventing and responding to BB’s inappropriate behaviour;
d) Was the force reasonable in the circumstances or excessive? This is where I have the most difficulty. AC did not set out to intentionally inflict harm on BB. The force that was applied was not degrading. There was no bodily harm. The force applied was intended to restrain. There is no suggestion that AC hit BB or used objects to hit AC. There is no evidence he struck BB in the head. The actions consisted of grabbing BB to get control of him. There were elements of anger and frustration involved, but not overtly so. While some reasonable parents in similar circumstances would have, as CC asked AC to do, stand down and back away at that moment in time, others would have proceeded exactly as AC did to obtain control of BB for the purpose of ensuring he obtained his medication and proceeded to his time-out.
143On balance, I am satisfied that deemed consent is made out.
144For this reason, notwithstanding my findings with respect to the credibility of AC, I am unable to find him guilty and he is entitled to an acquittal.
The Impact of Section 43
145Applying the rubric set out above with respect to section 43, I find as follows:
a) AC applied the force for corrective purposes. It is clear that BB was capable of learning from such correction, on the basis that when BB approached, he de-escalated, cowered to CC and moved so that CC was between him and BB. I am satisfied that the use of force was necessary to restrain BB and remove him from a situation of non-compliance with his medication and time-out towards compliance with medication and time-out. “Time-out” is recognized as a valid parenting tool. It cannot, however, be imposed if the child refuses to abide by it.
b) While there may have been elements of anger and frustration, following cases such as BS, Hume and Bender, AC’s and CC’s parental toolbox was empty. I agree that it is a matter of common sense that it is unreasonable to expect that to avoid criminal liability, parental discipline must be emotionless and devoid of natural reactions to what unfolds. Parents cannot be held to a standard of perfection. They are human.
c) The use of force was intended to address the actual behaviour of the child as it existed when AC first started to intervene. By the time AC was within grasp of BB, however, BB’s behaviour had changed. BB was cowering to CC and attempted to separate himself from AC by placing CC in the middle. It is clear to me that he feared what was coming next. This happened, however, over the course of seconds. As much as we value sober and reasonable reflection, it is unreasonable to expect a parent to pivot so quickly. I repeat: parents cannot be held to a standard of perfection.
d) The use of force was designed to restrain and control the BB. It was not intended to punish BB.
e) The use of force was intended for discipline in the sense of making BB mind, stop misbehaving, take his medication and go to his time-out spot.
f) The use of force – at least that which is observable in the span of the 38 second video in evidence -- was relatively mild. There was no bodily harm or a reasonable prospect of harm. AC did not strike BB in the head. AC did not use an object such as a belt or a ruler. He grabbed BB with his hands. The use of force was minor. While acknowledging the broader questions that have arisen with respect the long-term effects of physical discipline on children, I find that it was transitory and trifling.
g) From a policy perspective, this is not a case that is deserving of the blunt hand of the criminal law.
146For all of these reasons, I find that the accused is entitled to recourse to section 43 and thus I would also acquit him on this basis.
The Impact of Section 34
147I will deal with this issue summarily. I do not find that the accused would be entitled to avail himself of the defence in section 34. I cannot find that a reasonable person with the accused’s experiences would have continued to anticipate a threat to themselves or others. In my view, recourse to this section was completely eliminated when CC told AC that she had control of the situation, and when BB stopped yanking CC and cowered.
148As I also stated in my review of AC’s evidence, I did not believe his evidence about this, nor did it leave me in doubt. I thought it was a completely “over the top” justification.
Conclusion
149For all of these reasons, AC is found not guilty.
Postscript
150In cases such as this involving young children, who are at the mercy of their parents, the situation is unsettling.
151The family had gone to the unusual step of installing video surveillance inside their house. I am aware of the increasing popularity of video surveillance for a variety of reasons, but it was odd in this case. There was some vague reference to the children having previously made untrue allegations as the reason for the video installation.
152As I indicated in my judgment I was also skeptical of the reasons that there was only a 38 second portion of the video available.
153The only truly objective evidence I had with respect to what transpired was that 38 second video.
154The way that BB cowered to his mother in the video was unsettling. It may well be that this was simply a natural response to seeing his father enter the arena and becoming aware that his behaviour was about to be restrained. It may also be an expression of fear of something else more sinister that was to come.
155I was told that there had, at some point, been FCS involvement but that organization was no longer in the picture.
156I was told that the family has had significant difficulties accessing mental health services and supports for BB.
157I considered ordering AC to obey a common law peace bond preventing him from using physical discipline on any of the children. I reasoned against this because I do not have the full picture of what was going on in this family. I also reasoned against this on the basis that I have found that CC is unable to cope without help and there may well be situations in the future where AC will have to be called upon to assist with BB and that assistance will involve physical restraint.
158In the final analysis, I will send a copy of this judgment to FCS to determine what, if any, further steps or investigations ought to be taken.
Released: December 11, 2025
Signed: Justice J.R. Richardson