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 486.4(1) of the Criminal Code. This subsection 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 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences
(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE
(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Date: October 18, 2016
Court File No.: 15-05970 Newmarket
Between:
Her Majesty the Queen
— and —
P.M.
A Publication Ban restricting publication of information tending to identify the youth complainant in this case applies pursuant to section 486.4(2.1). Such information has been removed from these reasons.
Judgment
Before: Justice Joseph F. Kenkel
Heard: October 17-18, 2016
Delivered: October 18, 2016
Counsel:
- Ms. Jennifer Halajian — counsel for the Crown
- Mr. Mitchell Worsoff — counsel for the defendant
KENKEL J.:
Introduction
[1] PM was faced with a situation familiar to every parent in this era – his son was engrossed in a video game and didn't want to stop playing to attend a family function. What happened next is the subject of this trial.
[2] PM pulled his son to the doorway in an effort to get him to put on his shoes and comply. The Crown alleges that he did so in anger, then picked up his son and threw him towards the door. As his son continued to refuse to put on his shoes he started to choke him and forced him onto the stool by the entrance. His son put his shoes on, went outside then ran to a friend's house.
[3] The defence submits that PM pulled his son across the floor only after reasonable persuasion failed. PM helped his son sit on the stool at the entrance to put on his shoes. He held his son's face by the cheeks only and just briefly to get his attention. There was no anger, no harm caused, and section 43 provides a defence to the accused's reasonable actions. The choking and other acts of assault alleged by the Crown simply didn't happen.
[4] The central issue in this case is credibility. The Crown bears the burden to prove the charge alleged beyond a reasonable doubt. The WD framework applies.
Analysis
[5] I've first considered all of the evidence at trial as a whole and I make the findings of fact that follow in that context.
[6] The accused's evidence was credible on a number of points. For example, it's credible that he was frustrated by his son's refusal to join him to see relatives and by the disrespect with which he'd conveyed it. I find it's credible that he felt that he couldn't leave the 11 year old M at home given ongoing marital problems with past unfounded accusations of child abandonment and uncertainty about his daughter's plans. However, on the central points I find I'm unable to accept the accused's evidence nor does it leave a reasonable doubt for the following reasons:
A number of times during his testimony he expressed difficulties with his memory of these events. I find that lack of memory on important details detracts from the reliability of his present recollection.
His testimony that he'd shared his plan with the children the night before found no support in the evidence of either of his sons M and A, was not put to them and was directly contradicted by the credible evidence of his daughter E.
His recollection that he was calm for the most part is contradicted by the credible evidence of all three children.
His recollection that he wasn't angry, that there was "no negativity or violence" during the incident is contradicted by the credible evidence of all three children.
The accused's testimony that he did not throw his son onto the floor is contradicted by the credible evidence of M and A. The abrasion to the M's elbow shown in Exhibit 1D is consistent with his testimony on this point and inconsistent with the accused's recollection that he caused no harm to M during the incident.
The accused's evidence that he did not choke his son is contradicted by the credible evidence of M and A. Their evidence is consistent with the angry circumstances of the incident and the mark shown in Exhibit 1B. While I agree with the defence that the mark is a minor one despite being taken many hours later, and that says something about the degree of force applied when the accused's hands were around his son's throat, the presence of the mark and its location is consistent with the credible evidence of M and A and inconsistent with incidental contact while the accused was holding M's cheeks.
His evidence is illogical in parts, including the asserted need to physically help his son M onto the stool to put his shoes on.
The accused's evidence is inconsistent with the evidence regarding the reactions of all three witnesses. On his account there is no reason for them to be crying. No reason for them to feel fear. No reason for his son M to ask that police be called. No reason for his son to flee and run to a neighbour's house. The circumstances at the close of the incident are consistent with the evidence of all three child witnesses but inconsistent with the accused's testimony and that detracts from the credibility of his account.
The accused's suggestion that his son could have fabricated the injury to his elbow or the marks on his neck, and had done something similar in the past was never put to that son or any other witness. That assertion was not credible and contradicted by the credible evidence of other witnesses.
[7] This incident occurred during a family breakup. I'm mindful that the complainant and his mother both were not getting along with the accused during this period. I approach their evidence with some caution given the potential for actual or unconscious bias in that context.
[8] PM's youngest son A is the one closest to him. At the conclusion of his testimony A asked the court when he would get to see his father again. I don't find any bias in A's testimony, but if there were it would likely favour his father over his rival brother. AM testified in a straightforward and credible fashion. His evidence was consistent with his original statement to the police and consistent with the other credible evidence at trial. He had two vantage points that day – at first close to the incident between M and his father and then when his sister got him to come up the stairs he saw the rest from that position. His different vantage point reasonably explains the differences between his observations and those of his sister.
[9] A disagreed in cross-examination that he didn't see what happened. He repeated that he saw his father drag his brother, choke him and slam him at the door. His evidence on the central points is consistent with the credible evidence of his siblings and consistent with the photographic evidence. I accept his testimony as credible.
[10] The complainant's older sister was asleep when the incident started and arrived at the stairway after hearing the argument. She saw her brother being lifted up by her father. She could see her dad was hurting her brother. Her father's back was to her at that time so she didn't see how her brother fell. She didn't see choking but in her position she explained she would not have seen it. Her brother M asked her to call the police. She was upset and scared by what she observed as was her brother A. I find E's evidence was logical and consistent with the evidence of her two brothers and the photographic evidence. I accept her evidence as credible.
[11] I'm mindful that M had ongoing issues with his father, but his evidence as to the circumstances of the incident – that he was dragged from the living room by an angry father who then tried to force him to put on his shoes by throwing him to the door and then holding by his neck against the wall – was logical, consistent with the evidence of his sister and brother, consistent with the photographs, and consistent with the circumstances at the time of the incident including the father's anger and the children's reactions afterwards.
[12] The acts of the accused are plainly outside the scope of section 43 of the Criminal Code as defined in Canadian Foundation for Children, Youth and the Law v. Canada.
Conclusion
[13] PM and his son M had been having difficulties prior to this incident. Part of that likely relates to the marriage breakup and the difficulty of living as a separated family all under one roof. Part of that might be more natural rebellion by a young son as he approached the end of elementary school. As noted at the outset, every parent knows the frustration of trying to disengage young teens and tweens from social media and video games. PM's use of physical force though was excessive and plainly the wrong response. He was angry and out of control. He told police later that night, "Dad won." Nobody won.
[14] I find that the Crown has proved the charge alleged beyond a reasonable doubt. There will be a finding of guilt.
Justice Joseph F. Kenkel