Ontario Court of Justice

Date: 2022 12 13 Court File No.: Windsor 21-11057

Between:

HIS MAJESTY THE KING

— AND —

RUBEN AGUIAR

Before: Justice S. G. Pratt

Heard on: 18, 20 October 2022 Reasons for Judgment released on: 13 December 2022

Counsel: Jayme Lesperance............................................................................ Counsel for the Crown Dean Clark.................................................................................... Counsel for the Defendant

Pratt J.:

[1] Ruben Aguiar, hereinafter the Defendant, is charged with assaulting his son J., hereinafter the Complainant. The Defendant says his conduct is protected by s. 43 of the Criminal Code, which permits the use of physical force in certain situations. The Crown says the nature of the Defendant’s conduct takes it outside the protection of s. 43 and constitutes an assault. These reasons explain why I agree with the Crown.

Admissions

[2] Date, time, jurisdiction, and identity were admitted by the defence at the outset of trial.

Issues

[3] Before I can consider the applicability of s. 43, I must first determine the extent and nature of the Defendant’s conduct. I therefore have two issues to resolve in this case:

(1) What actions did the Defendant take against the Complainant?

(2) Were the actions of the Defendant justified by s. 43 of the Criminal Code?

Issue 1: What actions did the Defendant take against the Complainant?

The Evidence

[4] I heard from three Crown witnesses regarding the events of 10 December 2020.

[5] First, the Complainant testified. He was 11 years old at the time of his testimony and 9 years old at the time of the events in question. He testified that prior to the incident, he visited a nearby park with his stepbrother Carter and his father. When they returned home, his stepmother Nicole and infant sister Avery were present. He said he and Carter were having fun in the living room and being noisy. In cross-examination he admitted he was jumping on the couch, an activity he knew his parents didn’t permit. He agreed he jumped on the couch for 45 – 60 minutes. When the Defendant told him to stop, he refused.

[6] In his examination in chief, the Complainant testified that the Defendant then grabbed him by the neck with one hand, lifted him off the couch and into the air, and “banged me on the wall” approximately ten times. He said the back of his head and his back struck the wall as a result. He said the Defendant then raised his fist as if to punch him. At that point, Nicole intervened. He said the Defendant held him up off the couch for about a minute.

[7] In cross-examination, he briefly agreed that the time he was held off the couch was closer to two seconds. Soon after, however, he returned to his earlier account of being held up for a minute. He acknowledged having fallen off the couch in the past as a result of jumping on it, and that the Defendant told him to stop on this occasion multiple times. He said after the Defendant banged his head on the wall ten times, the Defendant let him go. He didn’t mention Nicole’s intervention in his cross-examination.

[8] Carter Novosad-Michaud testified that he was on another couch in the living room when the altercation between the Complainant and Defendant took place. According to Carter’s mother Nicole, he and the Complainant were both “8 or 9” years old at the time. Carter said he went to the park with the Complainant but thought it was Nicole, not the Defendant, who accompanied them. Regardless, they returned home in the early evening. He and the Complainant were in the living room and the Complainant was jumping on a couch. He remembered the Defendant entering the room.

[9] He said the Defendant told the Complainant to stop jumping but he didn’t. The Defendant then grabbed him by the face, lifted him up off the couch, and threw him down. He did this with one hand. He said the Complainant was crying after that. The Defendant left the room and returned to the kitchen. He didn’t remember Nicole getting involved.

[10] In cross-examination Carter said the Complainant was jumping on the couch for perhaps three minutes. He said the Defendant came to tell him to stop once or twice. He told him to stop in a loud voice. When the Defendant grabbed the Complainant by the face and lifted him up, he held him for approximately four seconds before dropping him.

[11] Finally, I heard from Nicole Novosad, the Defendant’s former fiancée. She testified that the Complainant was irritating everyone that evening. He was being loud and obnoxious. She didn’t remember specifically what he was doing, but she acknowledged he would jump on the couch a lot and so was probably doing that. She said both she and the Defendant told him to stop.

[12] When the Complainant did not stop, the Defendant entered the living room and confronted the Complainant. The Defendant was, she said, upset. By that point she thought he had been jumping on the couch for about ten minutes. The Defendant grabbed the Complainant by the face, lifted him up off the couch, and dropped him down. On seeing that, Nicole testified that she “flew over” and put herself between the Defendant and the Complainant. She told him the next thing he would do to the Complainant, he would have to do to her. She told him to calm down. She said he was angry and upset, and that he left the room.

[13] She acknowledged that the Complainant was a challenging child who frequently, as she put it, pushed everyone’s buttons. One of the reasons she and the Defendant separated was the Complainant’s disciplinary issues. She did not want Avery living in the same house as the Complainant.

[14] She testified that after the incident, when they were getting the children ready for bed, the Defendant and Complainant seemed fine with each other.

[15] An important point to note is that at the time of this incident, the Complainant was nursing a broken collarbone. He’d injured himself doing a somersault at school a week prior and his arm was in a sling. This is an important piece of evidence that will figure into my s. 43 analysis.

[16] I also heard from the Defendant himself. He testified to taking the Complainant and Carter to the park that evening. He said that while Carter was able to play, he kept the Complainant with him. He did not want him risking further injury to his collarbone by playing on the equipment. He didn’t want the Complainant to risk even bumping into another child, as in his words, “it wouldn’t take much” to endanger him.

[17] On returning home, he said the Complainant “decided to challenge” his authority “like always” by jumping on the couch and yelling. He told the Complainant to settle down, but he didn’t. To the contrary, when he told the Complainant to stop, he said he responded with foul language, telling the Defendant to “fuck off, fuck yourself”. After he’d been jumping on the couch for about an hour, the Defendant said he grabbed him with both hands and sat him down. He said he grabbed the Complainant’s head, sat him on the couch, put his hands on the Complainant’s chest, and calmed him down. The Complainant’s response was to start spitting and kicking his feet.

[18] The Defendant then walked away, telling the Complainant to remain seated on the couch. He said when he left, the Complainant resumed jumping.

[19] He acknowledged that Nicole got between them. He said it was during the approximately three minutes that he had his hands on the Complainant’s chest trying to calm him down. She said the situation needed to end and that this isn’t the way to raise these kids.

[20] His concern with the Complainant jumping on the couch was the potential for injury. He said he worried the Complainant could fall into the Christmas tree that was next to the couch, or onto the glass coffee table that was in front of it. He also worried he might fall on Avery who was playing nearby.

[21] In cross-examination he added another point but quickly retracted it. He testified that the Complainant jumped from one couch to the other two or three times. He then said he could have done that. It’s not clear what his testimony actually was on that point.

[22] He testified to being worried that by the Complainant jumping on the couch, both Avery and Carter could have been “injured for the rest of [their lives].”

Analysis

[23] Even on the Defendant’s own evidence he intentionally applied force to the Complainant without the Complainant’s consent. That is sufficient in law to support a finding of assault, subject to the application of s. 43. I am not bound to accept his account, however. I must consider all the evidence I heard and determine where I believe the truth lies.

[24] Both the Complainant and Carter are young children. I am mindful of appellate courts’ guidance in the consideration of their evidence. While the burden of proof remains the same regardless of the age of Crown witnesses, I cannot impose an adult standard of accuracy and recall on children (see: R. v. B.(G.), [1990] 2 S.C.R. 30). It is to be expected that children, especially young children like the Complainant and Carter, may omit details of an incident, or remember them differently. Inconsistencies or contradictions in a child’s testimony should not generally carry the same weight as they would in an adult’s. Throughout, of course, the burden remains on the Crown to prove the Defendant’s guilt beyond a reasonable doubt. That standard never changes.

[25] First, I am unable to accept the evidence of the Defendant in its entirety. While embellish might be too strong a word, he certainly slanted his evidence to buttress his position. For example, his claim that in refusing to stop jumping on the couch, he didn’t feel the Complainant was defying him, makes little apparent sense; this was clear defiance. It does however support his intention to make himself appear calm and controlled throughout his dealings with the Complainant. Likewise, he never admitted to being angry with the Complainant, regardless of what he did. Not when he wouldn’t listen. Not when the Complainant told him “fuck off, fuck yourself”. Not even when the Complainant started spitting at him and kicking his feet. Even Nicole admitted to being angry with the Complainant that night. But not the Defendant. The most he’d admit to was being frustrated. This is an attempt to show that through the maelstrom of defiance, profanity, and lashing out, the Defendant remained calm. In my view that is not a believable human reaction, and in any event his claim isn’t borne out by his own conduct, as I will explain. Nicole testified that the Defendant was angry and upset. I accept that evidence.

[26] I find he also exaggerated the risk the Complainant’s jumping posed to the other children. He testified to being worried that Carter and Avery might sustain lifelong injuries. From what? The Complainant was jumping on the couch. It was a different couch from where Carter was sitting, and was, according to Nicole, about six feet away from where Avery was playing. The Defendant first said the Complainant was jumping between couches, but then said only that he could have done so. His desire to protect the children is understandable, but I find he vastly overstated the dire risk they were in as a result of the Complainant’s actions.

[27] Finally, his claim that it was when he was holding the Complainant down, for perhaps three minutes in an effort to calm him, that Nicole intervened seems curious. He said she told him that isn’t the way to raise the kids. Why would she say that if all he was doing was trying to hold him still and calm him?

[28] Nicole and Carter both testified to seeing the Defendant go to the Complainant on the couch and grab him by the face with one hand. Each saw him lift the Complainant up and drop him onto the couch. Where they differed was in Nicole intervening. Carter did not testify to that.

[29] All of that said, there really isn’t much difference between the Defendant’s account and those of Nicole and Carter. The only real differences are the Defendant saying he used both hands to lift the Complainant off the couch, while Carter and Nicole remembered him only using one, and what each of Nicole and the Defendant said was happening when she intervened.

[30] Carter testified to the Complainant’s jumping going on for about three minutes. Nicole first said about ten minutes, then agreed it could have been half an hour. I think the real duration is likely somewhere in the range of ten minutes. The idea that the Complainant was jumping continuously for an hour, as claimed by the Defendant, is hard to believe. That would require impressive amounts of both physical stamina and focus on an increasingly demanding task. Given all the evidence I heard about the Complainant’s ADHD (all led by the defence), I do not accept he would have or even could have engaged in an uninterrupted hour of jumping.

[31] I have considered the evidence of the Complainant. I am uncomfortable accepting his account of events. He recalled being grabbed by the neck, rather than the face or head. Had that been the only issue I would not have had a significant problem accepting his evidence. Beyond that, however, he also testified to the Defendant holding him up off the couch and striking his head and back against the wall ten times. Neither Carter nor Nicole saw or heard anything of the sort. In my view, the action of ramming the Complainant against the wall repeatedly is something that would have stood out to both witnesses. That neither mentioned it makes me wonder if it really happened. Certainly, I harbour a doubt on whether it did, and the Defendant gets the benefit of that doubt.

[32] In the result, I find that on returning from the park that evening, the Complainant, age 9, set about jumping on the couch and making noise. This displeased the Defendant and his stepmother. Both told him to stop multiple times. He refused. This went on for approximately ten minutes. The Defendant went to the Complainant and told him again to stop. The Complainant responded with profanity. The Defendant grabbed him by the face/head area. He lifted him up off the couch and dropped him back down. He then attempted to restrain the Complainant on the couch. That led to the Complainant spitting and kicking his feet. At that point, Nicole entered the room and told him to stop what he was doing. The Defendant left the room, whereupon the Complainant resumed jumping on the couch.

[33] The Complainant suffered no injures as a result of this incident.

Issue 2: Were the actions of the Defendant justified by s. 43 of the Criminal Code?

[34] The facts as I have found them support a finding of assault. I must now consider if s. 43 of the Criminal Code applies such that the use of force by the Defendant was justified.

[35] Section 43 states as follows:

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.

[36] Much like the self-defence provisions of s. 34, once an air of reality is shown to a claim under s. 43, a defendant need only raise a reasonable doubt to entitle himself to an acquittal. In the present case, the Defendant need not prove he was taking reasonable corrective action towards the Complainant. Rather it is the Crown who must prove, beyond a reasonable doubt, that he was not.

[37] I begin my analysis by finding that an air of reality does exist regarding the application of s. 43. The Crown must therefore negative the elements of the section beyond a reasonable doubt.

[38] The requirements of s. 43 were the subject of attention in the case of Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) 2004 SCC 4, [2004] 1 S.C.R. 76. Unlike most cases cited in the criminal courts, this one did not involve a set of facts and a defendant seeking redress. It was an application for a declaration that s. 43 of the Criminal Code was unconstitutional. The argument put forward was that the section violated three sections of the Canadian Charter of Rights and Freedoms: s. 7 because it failed to protect children, was not in their best interest, and in any event was overbroad and vague; s. 12 by legalizing cruel or unusual punishment or treatment; and s. 15 by denying children the legal protection against assault that is afforded to adults.

[39] I begin by noting Chief Justice McLachlin’s words at paragraphs 58 and 59:

Children need to be protected from abusive treatment. They are vulnerable members of Canadian society and Parliament and the Executive act admirably when they shield children from psychological and physical harm. In so acting, the government responds to the critical need of all children for a safe environment. Yet this is not the only need of children. Children also depend on parents and teachers for guidance and discipline, to protect them from harm and to promote their healthy development within society. A stable and secure family and school setting is essential to this growth process.

Section 43 is Parliament's attempt to accommodate both of these needs. It provides parents and teachers with the ability to carry out the reasonable education of the child without the threat of sanction by the criminal law. The criminal law will decisively condemn and punish force that harms children, is part of a pattern of abuse, or is simply the angry or frustrated imposition of violence against children; in this way, by decriminalizing only minimal force of transient or trivial impact, s. 43 is sensitive to [page112] children's need for a safe environment. But s. 43 also ensures the criminal law will not be used where the force is part of a genuine effort to educate the child, poses no reasonable risk of harm that is more than transitory and trifling, and is reasonable under the circumstances. Introducing the criminal law into children's families and educational environments in such circumstances would harm children more than help them. So Parliament has decided not to do so, preferring the approach of educating parents against physical discipline.

[40] The section justifies force used for the purpose of correction so long as that force is reasonable in the circumstances. The Chief Justice included the action of restraint as a use of force that could fall under the section (see paragraph 24).

[41] In R. v. M.E. [2011] O.J. No. 6177 (S.C.J.) Justice Hill set out a summary of what is required for conduct to receive the protection of s. 43 at paragraph 204:

The parties agreed that the operative interpretation of the statutory provision exempting a parent from criminal sanctions, summarized below, is derived from Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76:

(1) s. 43 delineates a sphere of non-criminal conduct within the larger realm of common assault

(2) to be within the protection of s. 43, the physical force used by a parent must have been by way of correction:

(a)the accused must have intended the application of sober, reasoned physical force to be for educative or corrective purposes designed to restrain, control or express symbolic disapproval of a child's behaviour, not motivated by angry outbursts, frustration or an abusive personality

(b)the child must be capable of benefitting from the correction in the sense of understanding why he or she is being hit, taking into account the child's age and other relevant contextual factors

(3) having regard to emphasis on the prospective effect of the physical force used, it must be reasonable under the circumstances:

(a)because s. 43 does not exempt conduct that causes harm or raises a reasonable prospect of harm, its operation is limited to the mildest forms of assault - minor corrective force of a transitory and trifling nature and impact

(b)consideration of all of the circumstances includes the nature of the force, its duration and frequency, its physical and mental effects, and such factors as the age of the child

(c)the focus is not retrospectively upon the gravity of the precipitating event or the child's wrongdoing

(d)what is reasonable in the circumstances is not defined by what caregivers or judges subjectively believe to be reasonable but rather by an objective appraisal based on current learning and consensus recognizing that social mores may evolve and change over time.

[42] That the force must be motivated by a desire to correct the child in question was noted by Justice Dickson (as he then was) in the case of R. v. Ogg-Moss, [1984] 2 S.C.R. 173:

The first prerequisite, that the force be intended for correction, has been a part of Canadian law since Brisson v. Lafontaine (1864), 8 L.C. Jur. 173 (S.C.) In a passage that has been quoted in almost every subsequent case on the right of correction, Loranger J. said at p. 175 that the schoolteacher's power of correction could only be exercised in "the interests of instruction" and that "any punishment ... motivated by arbitrariness, caprice, anger or bad humour constitutes an offence punishable like ordinary offences."

[43] The second prerequisite is that the child be capable of learning from the correction. As noted above by Justice Hill, the Complainant in this case must have been capable of knowing why force was used against him. Specifically, he must be capable of understanding that jumping on a couch with an injured collarbone could be dangerous and lead to further injury, and so that is why force was used against him.

[44] Taking all the circumstances into account, I find the Defendant has raised a reasonable doubt on the first prerequisite. The Complainant had a broken collarbone and was jumping on the couch. While I have found that the Defendant overstated the risk that activity created, it was nonetheless something the Complainant shouldn’t have been doing. The action taken by the Defendant was not to strike the Complainant; it was to restrain him. I find his actions were not solely motivated by his frustration but did evince at least some desire to protect the Complainant from himself.

[45] As noted in R. v. B.S., [2008] O.J. No. 975 (S.C.J.), the effects of the correction need not be observed immediately. It may take some time for them to become apparent. But they do need to arrive at some point. In his testimony describing the challenges of parenting the Complainant, the Defendant consistently used the present tense. He stated, “He’s a kid that pushes you to see how far can I go?...He just doesn’t click in”. This suggests the challenges present on 10 December 2020 remain. I don’t mean to suggest the corrective action taken must have eliminated all behavioural issues entirely, but the fact that, according to the Defendant himself, the Complainant still pushes authority to see how far he can go, leads me to question whether he was capable of understanding the correction.

[46] The Defendant’s own words lead to the same uncertainty. This is from his cross-examination:

CROWN: And it was clear at that time that J. was riled up, upset, and was not in a position where he could, you know, learn or be taught something from you at that moment.

DEFENDANT: No.

CROWN: Because when J. gets upset, even more so than the average 9-year-old you’re describing, he can’t process or regulate his emotions.

DEFENDANT: Yeah it gets to the point that you can’t reason with him, and that’s the difficulty to deal with J.

[47] The Defendant admits that the Complainant can’t be reasoned with when he’s upset. That night, the Complainant responded to being restrained by spitting and kicking. The Defendant also testified that after he walked away following his use of force, the Complainant immediately went back to jumping on the couch. All of this leads me to the conclusion that the Complainant was not capable of understanding the reason for the Defendant forcefully grabbing him, lifting him up, dropping him to the couch, and restraining him.

[48] As to the issue of reasonableness, I would find that the totality of the Defendant’s actions were not reasonable in the circumstances. I agree the Complainant needed to be restrained. If that was all the Defendant did, I would have found differently on this point. Instead, the Defendant grabbed the Complainant by either the face or the head, lifted him up, and dropped him on the couch. He then held him by the chest to restrain him. Taken together, I find his actions were unreasonable. His own testimony supports that finding.

[49] In his evidence in chief and his cross-examination, the Defendant repeatedly mentioned the Complainant’s broken collarbone. He said he didn’t let the Complainant play at the park as even bumping into another child could have caused him further injury. But he grabs him by the head, lifts him off the couch, and drops him down? I fail to see how that can be considered reasonable in the face of his own fear of further injury to the Complainant. The Defendant’s sudden aggression leads me to wonder if anger and frustration were, in fact, the dominant motivators for his actions. It is not reasonable to lift a child with a broken collarbone up by the head and drop him onto a couch in an attempt to correct his behaviour.

[50] In summary then, while I find the Defendant has raised a doubt on the issue of his conduct being corrective in nature, I find he has failed to do so on the issues of the Complainant being capable of correction and the reasonableness of his actions. On the evidence I have heard, the Crown has proved beyond a reasonable doubt that the Complainant was not then capable of correction and that the actions of the Defendant were not reasonable in the circumstances. Section 43 does not apply in this case.

Result

[51] The conduct of the Defendant constitutes an assault. I have found that s. 43 has no application. In the result, the Defendant will be found guilty.

[52] The Court does not intervene in family relationships lightly. I recognize that the Complainant is a difficult child to discipline and that the Defendant was, candidly, in a tough situation. Applying the law to the facts, however, leads me to this result.

Released: 13 December 2022 Signed: Justice S. G. Pratt