COURT OF APPEAL FOR ONTARIO

DATE: 20000815

DOCKET: C28765

CATZMAN, WEILER and LASKIN JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN ) Chris Webb, for the respondent

(Respondent) )

­­–and– )

A.E. ) Paul Burstein, for the appellant

(Appellant) )

) Heard: May 15, 2000

On appeal from the conviction imposed by Masse J. dated June 11, 1997.

WEILER J.A.

[1] The appellant was convicted of assault causing bodily harm on his two-month-old baby daughter. He was sentenced to twenty-two months imprisonment, followed by three years probation and has served the custodial portion of his sentence. The appellant raises two grounds of appeal in relation to his conviction.

[2] The first ground of appeal is that the trial judge erred in finding that the appellant was guilty of the offence of assault causing bodily harm. The appellant submits that, if he is guilty of anything, his offence is criminal negligence causing bodily harm and the verdict should be varied accordingly.

[3] The second ground of appeal is that the trial judge misapprehended the evidence. If successful on this ground of appeal, the appellant would ordinarily be entitled to a new trial. A misapprehension of evidence can, however, lead to an unreasonable verdict and, in that situation, an appellate court must enter an acquittal: R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 at 215-222. I propose to deal with this ground of appeal at the outset.

1. Alleged Misapprehension of Evidence

[4] In order to appreciate the appellant’s submissions concerning the trial judge’s misapprehension of the evidence, I must briefly review the evidence and the trial judge’s findings of fact.

[5] The appellant was charged with having committed the offence of assault causing bodily harm on his baby daughter, G., at some point between […], 1996, the day she was born, and February 12, 1997. On that date, the baby’s mother, T.W., noticed that the infant had a swollen right leg around the knee and sought the advice of several people, including her mother, E.W.. E.W. advised T.W. to take the baby to the Brockville General Hospital and T.W. did this. The baby was found to have multiple bone fractures in different stages of healing. The Children’s Aid Society (“C.A.S.”) was alerted and G. was removed from T.W.’s custody.

[6] Tina Latham, a close friend, suggested that the appellant move out of the apartment and write a letter to the C.A.S. accepting responsibility for the baby’s injuries. Two or three days later, the appellant moved out of the apartment and left a note saying that he was sorry, that he did not mean to hurt the baby; all he was doing was playing a little too hard.

[7] The appellant was arrested on February 20, 1997 and given his right to counsel. The appellant denied hurting his daughter. He kept asking himself, “Did I cause it, or didn’t I?” He also inquired what would happen if he pled guilty to the charge.

[8] At the station, the police informed the appellant that the baby had three broken ribs, two broken knees and a contusion behind the right eye and asked what had happened. He responded:

I didn’t do it on purpose. I was bending her knees forward to get her to go to the washroom, could have broke her knees that way, I don’t know. I was using a little bit of strength to make her poop proper. The ribs I guess … I pushed on her ribs because she wasn’t breathing right. I got nervous because she was choking on her burp. I’ll start on the shoulder. With her shoulder. It could have been when I dropped her accidentally.

[9] At trial, Kathleen Graham testified that, on the afternoon of February 12, she was playing cards with T.W.. The baby was in her swing chair and started to whine. The appellant walked over, grabbed the baby by the ankles with one hand and pulled her out of her swing. When she was hanging almost straight down with her head pointing towards the floor, the appellant swung her up on to his shoulder with a snapping motion of his wrist. As she swung onto his shoulder, the appellant put his free hand underneath her to rest her on his shoulder. Kathleen yelled at the appellant that he should not pick up a baby like that. The appellant handed the baby to T.W.. Later that night, she said she and T.W. took the baby to the hospital after consulting with T.W.’s mother.

[10] T.W. testified to an incident that occurred the day before she took the baby to the hospital wherein the appellant had tossed the baby to her on the bed from a few feet away. T.W. and E.W. both testified that, when the baby cried, the appellant would become frustrated and hand the baby off to someone and leave. The appellant was alone with the baby when he cared for her during the day and he also took turns caring for the baby with T.W. at night. E.W. testified that the appellant told her that, when he couldn’t take the stress of the baby crying, he would just take the baby and toss her on the bed. When the baby was about a month old, E.W. testified she had a conversation with the appellant about the inappropriate manner he was using to burp the baby by squeezing her sides. She testified that the conversation in which the appellant told her that he tossed the baby on the bed took place after this. Tina Latham also testified that the appellant told her he tossed the baby on to the bed by the legs.

[11] The appellant testified at his trial and denied tossing the baby on the bed. In cross-examination, however, he acknowledged that maybe he had told Tina Latham that he tossed the baby on the bed by the legs but said that he did not adequately express himself and that he meant to say the baby slipped out of his hands. He acknowledged that he knew the difference between tossing something and something slipping out of his hands. The appellant denied shaking the baby. In cross-examination, he acknowledged that he had been warned about shaking the baby’s eighteen-month-old sister, Paige.

[12] Dr. Donald Soboleski, a paediatric radiologist, gave opinion evidence regarding the nature and cause of the injuries as well as the probable date of the injuries. X-rays were taken on February 12, 13, and 14 in Brockville and on February 16 and 18 in Kingston. On the baby’s right leg, both the distal femoral metaphysis and the proximal tibia metaphysis were fractured. The left distal femoral metaphysis and left proximal tibia metaphysis were also fractured. In other words, there were fractures of both the thighbone and the lower leg bone around the knee area on both legs. It was Dr. Soboleski’s opinion that these fractures are very specific for child abuse. The mechanism of these fractures is a rotational or twisting motion requiring a significant violent force. In his opinion, such injuries usually involve a throwing action because that type of action creates the requisite momentum and twisting force. It was also Dr. Soboleski’s opinion, based on the different ageing of the injuries, that the leg fractures would not all have occurred at the same time. The baby would stop complaining about the type of leg injuries she received within a few days or a week. The injuries were inconsistent with the baby just being dropped, with an older child falling on the baby or the baby’s ability to move. The baby also had three fractured ribs associated with compressive force and a contusion behind her eye. This would be a painful injury because, when a breath is taken, there is a painful displacement of the ribs. An infant could try to compensate for the pain by not breathing too deeply. Dr. Soboleski also described a fracture to the baby’s right clavicle.

[13] Dr. Soboleski testified that the fractures to the baby’s legs could not have occurred as described by the appellant in his statement to the police, that is, as a result of moving the baby’s legs to make her have a bowel movement. Dr. Soboleski also testified that the mechanism most often associated with rib fractures is violent shaking and squeezing, although shaking is not necessary. Shaking is indicated by the presence of neurological or eye injuries.

[14] Dr. Soboleski was asked for an expert opinion as to when the baby suffered the fractures to the various bones. He explained that, when a bone is initially fractured, there is a crisp, sharp fracture line with some swelling of the surrounding soft tissue. Within 5 to 7 days of most types of fracture, there is a periosteal reaction that can be analyzed. The difficulty with metaphicile fractures, however, is that they may not result in a periosteal reaction. Despite these limitations, it was Dr. Soboleski’s opinion that the injury to the tibia in the right leg occurred within 7 days of the x-ray that was taken on February 13, 1997. The other fractures to the baby’s legs had occurred at an earlier time, anywhere from 2 to 6 weeks prior to the x-rays. As for the rib fractures, Dr. Soboleski said that they occurred prior to the injury to the tibia in the right leg and likely between 2 to 4 weeks prior to x-rays being taken.

[15] The trial judge stated:

…the evidence of Kathleen Graham; E.W.; Dr. Soboleski; part of the evidence of T.W.; the admissions which the accused made against his own penal interests to Tina Latham; as well as the written statement made by the accused, lead me to the following findings of fact:

1. the fractured clavicle was caused when the accused negligently dropped the baby on to the floor;

2. the broken ribs were caused when the accused squeezed the child’s rib-cage as described by E.W. and T.W.;

3. the child’s broken legs occurred when the accused lifted the child from her swing-bed by the ankles and, with a snapping motion of the wrist, brought her up to his shoulder, as testified to by Kathleen Graham.

Another incident which may have resulted in broken legs was when the accused tossed the baby on to the bed by its ankles from a distance of two to three feet away from the bed. These movements are consistent with the mechanism described by Dr. Soboleski and were done with sufficient twisting force to cause the fractures. As to this, I rely on the evidence of Dr. Soboleski, E.W., Kathleen Graham, and Tina Latham.

I find that the fractures to the right tibial metaphysis were caused by the accused on February 12th by lifting or jerking the child out of her swing-bed by the ankles. That, indeed, is corroborated by the swelling of her right leg from the knee down to the foot, which swelling was observed by T.W. on February 12th, and this is the event that precipitated her entry to the hospital. I make these findings of fact beyond all reasonable doubt.

[16] The appellant submits that the trial judge erred in concluding that the appellant caused the injuries. According to the appellant, Dr. Soboleski’s evidence was that the injuries would have caused considerable pain to the baby and none of the witnesses remembered the baby being in pain as a result of anything the appellant did in their presence. However, the fact that none of the witnesses could recall the baby crying abnormally does not mean that the trial judge misapprehended the evidence and erred in concluding that the appellant caused the injuries to the baby.

[17] The second reason advanced by the appellant for the alleged misapprehension of the evidence concerns the timing when the injuries occurred.

[18] The trial judge found that the injury to the right tibia occurred on February 12, 1997. Having regard to Dr. Soboleski’s dating of the injuries, the injury to the right tibia could have occurred on that date and this injury alone would be sufficient to make out the charge. Nonetheless, the trial judge appears to have found that the injuries to both legs of the baby also occurred on February 12th or that they might have occurred when the appellant tossed the baby on the bed. The evidence does not support the trial judge’s finding that all of the injuries to the baby’s legs occurred on February 12th. For instance, the fractures to the right and left distal femoral metaphysis were dated as 2 to 6 weeks prior to February 13th.

[19] The appellant submits that he was out of the family home from January 24th to February 6th and that the injuries could have been caused by someone else during this timeframe. However, the timeframe of the injuries also encompassed a period of time when the appellant was in the home. The trial judge stated that he accepted the evidence of E.W. and Ms. Latham. In particular, the appellant admitted to them both that he tossed the baby on the bed when he was frustrated with the baby’s crying. The trial judge was satisfied beyond a reasonable doubt that it was the appellant who caused the baby’s injuries and that the injuries were caused within the timeframe alleged in the indictment. There was evidence to support his conclusion. It was not necessary for the trial judge to be satisfied beyond a reasonable doubt as to the triggering event for each of the injuries. I would dismiss the ground of appeal relating to misapprehension of the evidence.

2. Do the facts as found by the trial judge support a conviction for criminal negligence causing bodily harm but not assault causing bodily harm?

The mental element

[20] Criminal negligence has been defined as behaviour which shows ‘wanton or reckless disregard for the safety of other persons’. See s.219 of the Criminal Code, R.S.C. 1985, c. C-46 and R. v. Jobidon (1991), 1991 77 (SCC), 66 C.C.C. (3d) 454 (S.C.C.) at 496. The Crown does not have to prove that the accused knew or foresaw the consequences of his actions with respect to the baby. If the act constitutes a marked and substantial departure from what we might expect of a reasonable person in the circumstances in question, then the conduct of the accused constitutes criminal negligence. Personal factors pertaining to the accused do not require consideration except when those personal characteristics amount to an incapacity to appreciate the risk in the course of conduct in question: R. v. Creighton (1993), 1993 61 (SCC), 83 C.C.C. (3d) 346 (S.C.C. ) per McLachlin J. at 385.

[21] With respect to the offence of assault causing bodily harm, the appellant submits that the Crown must prove that the appellant subjectively perceived the risk associated with committing the assault. It is the position of the appellant that “the trial judge made no finding suggesting that the appellant was subjectively aware that there was a risk of causing serious injury to G. as a result of his actions.” In a similar vein, the appellant submits that he did not have the mens rea necessary to commit the offence of assault causing bodily harm because he did not realize that his acts harmed the baby. Framing the appeal as submitted by the appellant mischaracterizes the elements of the offence that the Crown must prove.

[22] The mental element required for assault causing bodily harm is the mental element for common assault. The mental element for assault, which is a crime of basic intent, is described in Director of Public Prosecutions v. Morgan in the speech of Lord Simon of Glaisdale, [1975] 2 All E.R. 347 at 363:

By ‘crimes of basic intent’ I mean those crimes whose definition expresses (or more often, implies) a mens rea which does not go beyond the actus reus. The actus reus generally consists of an act and some consequence. The consequence may be very closely connected with the act or more remotely connected with it; but with a crime of basic intent the mens rea does not extend beyond the act and its consequence, however remote, as defined in the actus reus. I take assault as an example of a crime of basic intent where the consequence is very closely connected with the act. The actus reus of assault is an act which causes another person to apprehend immediate and unlawful violence. The mens rea corresponds exactly. The prosecution must prove that the accused foresaw that his act would probably cause another person to have apprehension of immediate and unlawful violence or would possibly have that consequence, such being the purpose of the act, or that he was reckless whether or not his act caused such apprehension. This foresight (the term of art is ‘intention’) or recklessness is the mens rea in assault. [Emphasis added.]

[23] Thus, the Crown need only prove that in acting as he did, the appellant was reckless whether or not his act caused harm to the baby for the mental element to be satisfied.

Assault and implied consent

[24] I now turn to the appellant’s submission that the implied consent of a parent to touch the child in order to care for her was not vitiated. Before discussing the appellant’s submission in detail, consideration of the trial judge’s reasons is appropriate.

[25] In his reasons the trial judge stated:

I have some comments to make about credibility. Both T.W. and the accused each say that the other is a good parent …Clearly, both the mother and the father are covering up for each other, and it is laughable for them to describe each other as “good parents”.

The accused’s evidence is inconsistent and contradictory. It is not necessary for the Court to review the contradictions between what he said under oath and what he stated to other people. Suffice it to say that his evidence does not stand the acid test of cross-examination.

I agree with Mr. Barr [counsel for the defence at trial] that the acts complained of are, at the very least, grossly negligent to the point of becoming wanton and reckless behaviour, thus amounting to criminal negligence. What I now have to decide, however, is whether these acts constitute assault.

Assault is defined in s.265 of the Criminal Code in the following terms:

265(1): “A person commits an assault when,

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly.”

265(2): “This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.”

The consent to the application of force by the complainant can be vitiated in certain circumstances. S. 265(3) indicates those situations in which no consent is obtained. It reads as follows, in part:

265(3): “For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of,

(d) the exercise of authority.”

Suffice it to say that a parent quite obviously exercises authority over a young child.

Assault is an offence of general intent. All that is necessary is for the accused to intend to do the act which constituted the offence. The Crown need not prove intent to cause harm, (see R. v. Bartlett, 1989, Nfld. & P.E.I. R., 143, a decision of Mr. Justice Camerson of the Trial Division).

When dealing with infant children, consent must be implied when it comes to such things as feeding, burping, changing, and transporting the child about from place to place. Clearly, the baby is not capable of doing those things for itself, and even though those matters do involve the intentional application of force, consent is presumed, since it is for the good of the child and, indeed, for the survival of the child. However, a baby cannot be deemed to consent to the wanton and reckless application of force that would result in physical harm and danger to its health. In such a case the motives of the person applying the force become immaterial. What becomes material then is the intentional application of force together with the objective foreseeability of bodily harm. Public policy dictates that we should adopt that analysis. Indeed, this was decided by our own Court of Appeal in R. v. S.R.L., 1992 2836 (ON CA), 1992, 76 C.C.C. (3d) 502, and the Supreme Court of Canada in R. v. Godin, 1994 97 (SCC), 89 C.C.C. (3d) 574.

The case of R. v. DeSousa, 1992 80 (SCC), 1992, 76 C.C.C. (3d) 124, makes it clear that an offence such as assault requires some degree of moral blameworthiness. Mr. Justice Sopinka stated at pg. 134:

“It is axiomatic that in criminal law there should be no responsibility without personal fault.”

Later on in the same page:

“The criminal law is based on proof of personal fault, and this concept is jealously guarded when the Court is asked to interpret criminal provisions, especially those with potentially serious penal consequences.”

In the case of R. v. Klassen, 1986, 47 Saskatchewan Reports, pg. 79, by the Saskatchewan Court of Appeal, the accused was charged with assault causing bodily harm after an infant was found to have two severe bite marks on its leg. The accused admitted the marks were his, but maintained that they arose in the course of horseplay. The accused’s appeal was dismissed. In that case medical evidence was introduced from which the trial Judge could draw the inference that the injury was not the result of playful interaction.

That case is not dissimilar to ours, where it is alleged that the application of force was innocent even though it had such drastic consequences.

However, I find that tossing the baby by its legs on to the bed from a distance of two to three feet; I find that lifting the baby out of its swing-bed by its feet and then bringing her up on to the shoulder of the accused with a snapping motion of the wrist; I find that squeezing the baby’s rib-cage so hard that the accused’s knuckles turned white; – I find that all of these incidents amount to the intentional application of direct force, they amount to wanton and reckless behaviour, and are thus blameworthy behaviour. It was also objectively foreseeable that bodily harm could and, in fact, did result. I reject the accused’s versions of how he performed these acts, and instead I accept the evidence of Dr. Soboleski that these acts must have been performed with significant violent force. [Emphasis added.]

Having said that, I find the accused guilty as charged.

[26] Section 265 provides that a person commits an assault when he applies force intentionally to another person without the other person’s consent. The appellant submits that, because he was looking after his child, he was acting with her deemed consent at the time he applied the force that broke her ribs and her legs. The common law recognizes the right of a parent to apply force in a reasonable manner for the benefit of the child: See Blackstone’s Commentaries on the Laws of England referred to by Dickson J. in R. v. Ogg-Moss, 1984 77 (SCC), [1984] 2 S.C.R. 173 at 185. Section 8 of the Criminal Code preserves common law justifications, excuses and defences except insofar as they are altered or inconsistent with the Code or other federal legislation. If the appellant was acting with the deemed consent of the child, he has not committed an assault and, therefore, cannot be convicted of assault causing bodily harm.

[27] The appellant relies upon Jobidon, supra, and a number of authorities.[^1][^1] There is a fundamental distinction between the facts in the cases relied upon by the appellant and the facts in this case. Unlike two adults in a bar who engage in a fist fight, teenagers involved in a schoolyard scuffle, or participants in a hockey game, infants are incapable of actual consent. True consent requires that the consenting party voluntarily decide to agree or participate, with full knowledge of all relevant factors. An infant does not have

this capacity. An infant must rely upon its parents to care for it and make decisions on its behalf to ensure its well-being.

[28] It was noted in Jobidon that policy based limits on consent are almost always the product of a balancing of individual autonomy and some larger societal interest. In the Jobidon situation, public policy vitiates the voluntary decision of the victim to consent. In this case, there is no concern about balancing an infant’s individual autonomy, or its freedom to choose to have force intentionally applied to itself. An infant is uniquely vulnerable to the quality of care and the decisions made on its behalf by its parents. The balancing exercise is therefore a different one.

[29] On the one hand, the law must protect children and those who are defenceless from unwarranted bodily interference; 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. Accordingly, as noted by the trial judge, it is in the public interest that an infant be deemed to consent to applications of force by a parent done “for the good of the child and, indeed, for the survival of the child”. The same balancing of interests regarding the protection of children and those exercising parental functions is reflected in s.43 of the Criminal Code which has its roots in the common law. (See G.P. Rodrigues, ed., Crankshaw’s Criminal Code of Canada, R.S.C. 1985, vol. 1, Looseleaf ed. (Scarborough: Carswell, 1993) at 1-326.) The section provides that:

Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a …child; … who is under his care, if the force does not exceed what is reasonable under the circumstances.

[30] In R. v. Ogg-Moss, 1984 77 (SCC), [1984] 2 S.C.R. 173 and R. v. Nixon, 1984 78 (SCC), [1984] 2 S.C.R. 197, the Supreme Court had occasion to interpret s.43. In Ogg-Moss, supra, a counsellor of mentally retarded persons living in a residential setting was charged with assault after he struck a twenty-three year old resident in his care on the forehead with a large metal spoon. The appellant admitted striking the resident but submitted that he was justified in doing so as a punishment because the resident had spilt his milk. The resident was not, however, be able to recall the incident five minutes after it occurred due to the level of his incapacity. In Nixon, supra, a counsellor in another residential setting pulled a thirty-three year old mentally retarded person from a chair by the neck and shoved her towards a door. The resident banged her head on the door. The counsellor was charged with assault causing bodily harm. The trial judge found that the accused did not intend that consequence. Both counsellors relied on s.43 of the Criminal Code.

[31] In both cases, the counsellor was convicted and, on appeal to the Supreme Court of Canada, the convictions were upheld. The reasons of the Court in Ogg-Moss, supra, were adopted in Nixon, supra, because the issues in both cases were the same. In both cases, the Court held that the counsellors were not within the class of persons protected by s.43 and the victims were not children. The Court’s comments concerning the policy respecting s.43 are, however, instructive. Dickson J. stated, in Ogg-Moss, supra, at 183:

It [s.43] exculpates the use of what would otherwise be criminal force by one group of persons against another. It protects the first group of persons, but, it should be noted, at the same time it removes the protection of the criminal law from the second. For the Attorney-General of Ontario this latter effect justifies a restrictive reading of s. 43, specifically of the terms “child”… It is his submission that:

… the class of persons against whom otherwise criminal force can be employed ought to be restricted, not broadened, and…any section which authorizes otherwise illegal physical violence should be strictly construed against the actor.

There is much to be said in favour of this submission. As a statement of general principle it accords with our normal assumptions about the purpose and operation of the criminal law. One of the key rights in our society is the individual’s right to be free from unconsented invasions on his or her physical security or dignity and it is a central purpose of the criminal law to protect members of society from such invasions. I agree with the Attorney-General that any derogation from this right and this protection ought to be strictly construed. Where the effect of such a purported derogation is to deprive a specific individual or group of the equal protection we normally assume is offered by the criminal law, I think it appropriate to view the proferred definition with suspicion and to insist on a demonstration of the logic and rationale of the interpretation.

[32] The justification for the use of force contained in s.43 is because the force used is “for the benefit of the education of the child” Ogg-Moss, supra, at 193). In order to be lawful, the force must be applied for the purpose of correction. Consequently, “any punishment--motivated by arbitrariness, caprice, anger or bad humour constitutes an offence.” (supra, at 194).

[33] Here, as in s.43, the common law exception that allows a parent to touch a child in order to care for the child both protects the parent and removes a protection from the child. Because the exception interferes with the child’s physical security and dignity, it is a narrow exception whose logic and rationale rests on the child’s incapacity to care for himself or herself. It is appropriate that an infant’s implied consent, itself a creature of public policy, be strictly limited to conduct which is consistent with the purpose and rationale underlying the policy basis for the consent. In order to avail himself of the defence of deemed consent, the force used by the appellant must have been for the purpose of caring for the child. Otherwise, the positive social value of deemed consent loses its rationale.

[34] Although the appellant submits that the force he used was for the purpose of caring for the child, the trial judge found otherwise. The trial judge first referred to the decision of R. v. Klassen (1986), 1986 2906 (SK CA), 47 Sask. R. 79, a case in which the accused admitted leaving severe bite marks on a child’s leg but said they arose in the course of horseplay. The accused was convicted. The trial judge then commented:

In that case medical evidence was introduced from which the trial judge could draw the inference that the injury was not the result of playful interaction.

That case is not dissimilar to ours, where it is alleged that the application of force was innocent even though it had such drastic consequences. (Emphasis added.)

[35] At the conclusion of his reasons, the trial judge stated: “I reject the accused’s versions of how he performed these acts.”

[36] The trial judge’s reasons indicate he rejected the submission made to this Court that the appellant’s use of force was for the purpose of caring for the child. The trial judge’s conclusion, which is supported by the evidence of Dr. Soboleski, is fatal to the appellant’s appeal.

[37] There is a second requirement that must be met before the defence of deemed consent can apply. Simply stated, deemed consent will not apply where the force used is excessive. Section 26 of the Criminal Code states:

Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.

[38] The section is of general application. It is not limited to a peace officer or public officer or a member of a restricted class of persons. The section applies to everyone. The words authorized by “law” refer to law in the aggregate, that is, statute law as well as judicial precedents and legal principles from the common law. The commentary under the section in Tremeear’s Criminal Code Annotated, 2001, The Hon. David Watt and Michelle Fuerst, (Scarborough: Carswell, 2000) at p. 65, indicates that the provision endeavours to codify the common law principle that if a power is exercised that may do harm to another, it must be exercised in a reasonable way.

[39] Similarly, when participants engage in rough sporting activities, consent to the intentional application of force is limited at common law to the customary norms and rules of the game. Force which clearly exceeds the ordinary norms of conduct will not be recognized as coming within the consent given by a participant: Jobidon, supra, per Gonthier J., for the majority, at 495.

[40] The deemed consent of a child to the intentional application of force by a parent is limited at common law to the customary norms of parenting or what a reasonable parent would do in similar circumstances. This is an objective standard. It is also a question of fact that is dependent on the circumstances of the particular case: See R. v Dupperon (1985), 1984 61 (SK CA), 16 C.C.C. (3d) 453 (Sask. C.A.). There appears to be general agreement that 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. See Canadian Foundation for Children, Youth and the Law v. The Attorney General in Right of Canada, a judgment of the Ontario Superior Court of Justice, delivered July 5, 2000, 2000 22397 (ON SC), [2000] O.J. No. 2535, which upheld the constitutionality of s.43.

[41] Section 265(3) recognizes that an assault may take place during the exercise of authority by a parent. The effect of the subsection is that a child does not consent to the intentional use of force by a person exercising parental authority simply because the child does not resist or submits to the use of force. The subsection implicitly recognizes that where the force used by a person exercising authority is excessive the deemed consent of the child is vitiated. In this respect the subsection dovetails with section 43 which provides that the force used by a parent for corrective purposes must be reasonable under the circumstances and section 26 which criminalizes the excessive use of force by those authorized by law to use force.

[42] Where 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.

[43] In this case, the trial judge accepted the evidence of Dr. Soboleski “that these acts (tossing the baby on the bed and squeezing the baby’s rib cage) must have been performed with significant violent force.” That is a far cry from the amount of force that was reasonable in the circumstances. The amount of force used by the appellant was clearly beyond the ordinary norm of parental conduct. It is a second reason why the appellant’s defence of deemed consent must fail.

[44] The trial judge did not err in concluding that the appellant was guilty of assault causing bodily harm. I would dismiss the second ground of the appeal.

[45] I would affirm the appellant’s conviction.

Released: AUG 15 2000 Signed: “Karen M. Weiler J.A.”

MAC “I agree: M.A. Catzman J.A.”

“I agree John Laskin J.A.”

[^1]: [1] R. v. W.(G.) (1994), 1994 3442 (ON CA), 90 C.C.C. (3d) 139 (Ont. C.A.).

R. v. M.(S.) (1995), 1995 1895 (ON CA), 22 O.R. (3d) 605 (Ont. C.A.).

R. v. Cey (1989), 1989 283 (SK CA), 48 C.C.C. (3d) 480 (Ont. C.A.).

R. v. Barron (1985), 48 C.R. (3d ) 334 (Ont. C.A.).

R. v. Cuerrier (1998), 1998 796 (SCC), 127 C.C.C. (3d) 1 (S.C.C.).

R. v. Knox (1996), 1996 171 (SCC), 109 C.C.C. (3d) 481 (S.C.C.).