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(2.1) 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 486.4(2.1), read as follows:

486.4 (2.1) Victim under 18 — Other offences — Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) Mandatory order on application — In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

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

Date: 2024 08 20 Court File No.: Central West Region - Orangeville – 22-0309

Between:

HIS MAJESTY THE KING

— AND —

James Hutchinson

Before: Justice Andrew F. Falls

Heard on: January 9, February 5 & 15, April 9, and July 29, 2024 Reasons for Judgment released on: August 20, 2024

Counsel: R. Levan................................................................................................ counsel for the Crown James Hutchinson......................................................... the defendant, on his own behalf D. Hotz................................................................... counsel appointed pursuant to s. 486.3

Falls, J.:

Introduction

[1] I delivered oral reasons in full on August 20, 2024. At the completion of my judgment, the Crown sought written reasons. The following is a written copy of my judgment.

[2] James Hutchinson and AM met in the fall of 2019. Ms. M had a family of her own with three young children. Mr. Hutchinson did not have any children. The two commenced a romantic relationship, moving in together shortly thereafter. Initially living in separate residences in Brampton, when the COVID-19 pandemic hit in March 2020, the new family moved into a duplex-style house owned by Mr. Hutchinson’s family in the Caledon area.

[3] The children lacking a father figure, Mr. Hutchinson quickly took on that role. By all accounts this new family unit operated as family with Ms. M and Mr. Hutchinson making co-parenting decisions, including disciplining the children. Initially and at times other than the allegations, everyone appeared content with Mr. Hutchinson taking on this role in the family.

[4] On May 26th, 2020, Mr. Hutchinson became involved in an argument with Ms. M. This was a heated argument that led to a physical confrontation, and Ms. M becoming injured.

[5] Mr. Hutchinson was initially charged with a domestic related offence in relation to Ms. M. After further investigation, Mr. Hutchinson’s disciplinary efforts came to the attention of the police. As a result, Mr. Hutchinson was charged with additional offences in relation to Ms. M’s three children. Mr. Hutchinson now stands charged with seven criminal offences.

[6] Mr. Hutchinson is charged with three counts of assault causing bodily harm for his discipline of the children. He is further charged with three counts of forcibly confining the children, again for his discipline methods. Finally, Mr. Hutchinson faces a charge of choking AM.

[7] The Crown called four witnesses to prove their case consisting of AM, Mr. Hutchinson’s step-father, Mr. Hutchinson’s sister, and the police officer in charge of the case. Aside from Ms. M, the remaining witnesses were called to provide corroboration of her evidence. The Crown, additionally, filed videotaped transcripts from Ms. M’s children.

[8] The Crown argues that Mr. Hutchinson was a controlling presence in the family unit. He lost his temper assaulted and choked AM. His actions towards the children, as alleged in the Information, were an exercise of capricious violence cloaked in a veil of discipline.

[9] Mr. Hutchinson argues that he did not unlawfully apply force to AM. He was justified in placing the children on a timeout. Further, his spanking of two of the children was reasonable in the circumstances. He was a good witness. His account of the events made logical sense. Regardless of whether I accept the evidence of Ms. M, I should accept his evidence and enter a finding of not guilty.

[10] The case against Mr. Hutchinson depends on my assessment of both the credibility and reliability of the witnesses who testified. Mr. Hutchinson and Ms. M both testified in this trial.

[11] For the reasons that follow, Mr. Hutchinson will be found not guilty of counts 2, and 3. There will be a conviction on counts 1, 4, 5, 6 and 7.

Reasonable Doubt, Credibility, Reliability, and the Burden of Proof

[12] Accordingly, the principles in R. v. W. (D) [1] are applicable.

[13] If I believe Mr. Hutchinson’s evidence, I must find him not guilty.

[14] Even if his evidence leaves me with a reasonable doubt regarding any essential element of the alleged offence, I must find him not guilty.

[15] Finally, even if his evidence does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.

[16] A core principle in our criminal justice system is the presumption of innocence. A criminal defendant begins a trial with the presumption of innocence and it remains until it is firmly displaced by the Crown having established the defendant’s guilt beyond a reasonable doubt: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27; R. v. Starr, 2000 SCC 40, at para. 242.

[17] I must keep in mind that Mr. Hutchinson, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities". [2]

[18] I note the differences between credibility and reliability. Credibility relates to a witness's sincerity, whether they are speaking the truth as they believe it to be. Reliability relates to the accuracy of their testimony. In determining this, I must consider their ability to accurately observe, recall and recount the events in issue. A credible witness may give unreliable evidence [3]. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt. [4]

[19] At this point I will say that while my decision with respect to the credibility of the witnesses is based, in part, on their demeanour while testifying, I am well aware that a finding of credibility should never be based on demeanour alone, especially where there are significant inconsistencies and conflicting evidence on the record. [5] The credibility and reliability of a witness must be "tested in the light of all the other evidence presented" [6].

[20] I also stress that while I am satisfied that I may rely on the demeanour of the witnesses as a factor in assessing their credibility, I consider it to be of very little, if any, assistance in assessing the reliability of their evidence.

[21] Finally, in assessing a witness’s evidence, I am entitled to believe all, none, or some of their testimony. [7]

Was Ms. M a Credible Witness

[22] I now turn to my assessment of Ms. M’s evidence.

[23] In assessing the credibility of a witness, it is appropriate to examine any inconsistencies in what a witness said at different times. Inconsistencies on minor matters or matters of detail are normal and do not generally affect the credibility of a witness. But one or more inconsistencies involving material matters can justify concluding that the witness is neither credible nor reliable. In determining this, it is necessary to look to the totality of the inconsistencies. [8]

[24] The following are examples of inconsistencies in the evidence of Ms. M. These are presented in no particular order of importance. I have considered them collectively in any event. I also point out that I am relying on these in determining both the credibility and the reliability of her evidence.

[25] Ms. M testified outside the courtroom by way of video. This was pursuant to a s.486.2 application.

[26] I cannot say that I fully believed Ms. M. She was a cooperative witness when testifying in chief examination. She answered the Crown’s questions on point, and I would say in a forthright manner.

[27] In cross-examination, however, Ms. M was very combative. Though the cross-examination was not as vigorous as many I have seen, Ms. M clearly did not like to be challenged. Indeed, at one point in her cross-examination she left the courtroom. The court was forced to take a break so the Crown could secure her return.

[28] Ms. M’s evidence is not without inconsistency or reliability concerns. Her evidence was inconsistent on many material aspects with other evidence in this trial.

[29] Considering the reliability of Ms. M’s evidence, I note that the consumption of a significant amount of alcohol was a recurring event in her life at the time of these allegations. Ms. M testified that she was drinking every night to dull the pain of her past life’s experiences.

[30] Specifically, with respect to May 26, 2020, Ms. M’s recollection of events was significantly impacted by the alcohol she drank that evening.

[31] I find as a fact that Ms. M consumed a considerable amount of alcohol on May 26th. As she noted in her evidence,

“James and I got really drunk. We had a 26, like a 26-er of — I forget. I think it was Bacardi Gold, I think, and we put the kids to bed, and we decided to get really drunk. And I wanted to stay up and continue having a good time and party by myself, and he wanted to go to bed, and he didn’t like that I wasn’t coming to bed with him. So, yeah, I got dragged up the stairs and I kind of blacked in and out. I don’t remember everything. I remember bits and pieces, but I managed to make it over next door to Courtney’s house, and Courtney called the police because somehow I, I managed to get a cut in the back of my head that needed medical attention.”.

[32] Gregory Frame, essentially Mr. Hutchinson’s stepfather, testified for the Crown. I found him to be a credible witness who had a good recollection of the events he testified about. Despite, the potential for bias in favour of Mr. Hutchinson, I found Mr. Frame to provide balanced evidence. Mr. Frame testified he could tell Ms. M had been drinking on May 26, 2020. He could smell beer and observed her to be staggering. Ms. M did not appear to be coherent. Mr. Frame’s impression was this was due to alcohol consumption. I accept Mr. Frame’s evidence on this point.

[33] Ms. M does not have a clear recollection of the assault. By her own admission, there are gaps in her memory. For example, other than essentially stating "James did it" she does not recall how her head was injured.

[34] Turning my mind to Ms. M’s credibility as a witness, I have considered the following.

[35] Ms. M showed a clear animus towards Mr. Hutchinson. In her evidence she repeatedly described Mr. Hutchinson in disparaging terms. She considered Mr. Hutchinson as an abuser who abused her and her children. Specifically, referring to him as egotistical, big headed, and sick.

[36] There was similar evidence from Ms. M and Mr. Hutchinson that he dressed up in a Gorilla costume and scared the children. Ms. M implied this was a malicious act carried out to the children’s detriment, as opposed to a more innocent playful act. I note this evidence by Ms. M was nonsensically provided in response to a suggestion by 486 Counsel that she would consume alcohol to the point of passing out and unable to provide support for her children at night.

[37] Ms. M provided inconsistent evidence about her motivations towards Mr. Hutchinson. As I noted, she testified that Mr. Hutchinson abused her and the children, and it was not right. In cross examination, she testified that she was in contact with Mr. Hutchinson after his arrest. The plan was for Mr. Hutchinson to admit his guilt, seek counselling and the two would continue a relationship. In cross-examination, Ms. M testified that because Mr. Hutchinson did not follow through with this plan, she was present to testify against him.

[38] During cross-examination, Ms. M refused to answer a question about how much rent she paid. She twice would not answer stating the question was irrelevant. I, unfortunately, had to interrupt and ask her to answer the question.

[39] Ms. M actions of leaving the courtroom in the middle of cross-examination evinced a clear disrespect for the court process. This action forced a 30-minute stop to any challenge to her evidence. After her return, the Crown made submissions suggesting that it would be beneficial for everyone to take a step back and take a deep breath, further suggesting that the witness may be required to take some breaks in her evidence. I felt it necessary to issue a general caution about the necessity of remaining in court, unless excused.

[40] I did not hear any evidence from Ms. M about the reason for her departure. Prior to leaving 486 Counsel suggested to Ms. M that she was a participant in placing her children in the cold cellar. Ms. M denied this suggestion. Counsel suggested that Ms. M had a temper and would use the cold cellar as a form of discipline. In response, Ms. M raised her voice, and stated, “You are an old man. I am losing my temper on you because you are insinuating that I put my kids in jail. I don’t have time for this. This is a waste of my time. Good....”

[41] Ms. M then removed herself from the proceedings. On my assessment, 486 Counsel was being fair to the witness. She may not have liked the questions being asked; however, counsel was not being aggressive or inappropriate.

[42] I appreciate why Ms. M would want to avoid any adverse finding about her ability to be a good mother for her children, however, my role is an exercise in determining if the Crown has proven the essential elements of the offence. I can only do this if witnesses are being truthful. This reluctance to admit her role in the family’s events causes me some concern about the truthfulness of her evidence.

[43] On the evidence I heard in this trial, it was clear to me that Ms. M was less than a good mother to her children. Excess alcohol consumption. Passing out and leaving the children unsupervised or supervised by someone she considered to have abused her children.

[44] Ms. M’s assertion that she was a good mother is further undermined by her own evidence. She testified that she drank heavily until she passed out in an effort to kill herself. I pause to note this evidence was later contradicted in cross-examination when Ms. M testified that she would only drink until she was legally drunk and was still able to care for her children. I note further that BRM, in his statement, talked about “Mommy drinking lots of beers and sleeping” and he was taking care of his siblings. I noted further support in BRM’s statement where he tried to pause the statement to care for his crying younger brother. At the time of his statement, BRM was 8 years old.

[45] The Crown is not required to call corroborative evidence of Ms. M’s testimony for me to believe her. However, the impact of alcohol on Ms. M’s recollection is significant. To any extent that I can rely on Ms. M’s evidence, I find I must look to other evidence that might confirm her testimony.

[46] In that regard, I find that I cannot rely on much of Ms. M’s evidence. As I noted, her recollection is too infected by her consumption of alcohol.

[47] I note that the clearest recollection of any of the allegations that Ms. M had was in relation to the spanking of KM. This part of her evidence is corroborated by the statement of KM, the photographic evidence and Mr. Hutchinson’s evidence.

[48] Ms. M’s evidence about placing the children in the cold cellar is corroborated by BRM and KM’s transcribed statements, and more importantly, this evidence is corroborated by Mr. Hutchinson.

[49] I acknowledge that Ms. M’s evidence about the allegations from May 26, 2020 that she was dragged up the stairs by her neck is corroborated in some measure by the photographs of her neck. Exhibit 4(a) in this trial. However, given the conflicting evidence in BRM’s statement about this incident, I am not prepared to accept Ms. M’s account standing alone of what occurred on May 26, 2020.

The Children’s Evidence

[50] BRM, KM, and DM are Ms. M’s children. They did not testify in this trial. Each provided videotaped statements to the police on May 27, 2020. Transcripts of the statements were filed as exhibits 1 a) - d). Pursuant to pre-trial and midtrial discussions and the parties’ agreement, the Crown tendered the statements as the evidence of each child. It was agreed this would be their evidence and they would not be subject to cross-examination. It was further agreed that Mr. Hutchinson was not agreeing that the statements were truthful. In other words, the statements were not admitted as agreed statements of fact. The videotaped recordings of the children were not played in court or filed as evidence.

[51] The motivation for this approach was a joint effort to spare the children from having to attend court and testify. During the trial, Mr. Hutchinson received legal advice from 486.3 counsel on this issue.

[52] I was invited to assess the credibility and reliability of the children’s evidence as I would any other witness based on what is written in the transcripts. The following is my analysis of their evidence.

[53] I pause to note that as child witnesses, I am entitled to consider their age when considering the significance of any inconsistencies or gaps in their evidence. [9] Because children may experience the world differently than adults, they may not remember details like dates, times and locations that might be more important to adults. [10] As a result, inconsistencies relating to peripheral issues might impact the credibility and reliability of a child witness less than it would an adult. [11]

[54] I note, however, that the evidence of every witness, whether a child or an adult, must be assessed with the same level of scrutiny. [12]

BRM

[55] BRM provided two video taped statements to the police. The first was taken in the kitchen area of the residence, a few feet from the cold cellar. The second statement was taken at a police detachment.

[56] BRM was eight years old at the time of these allegations. It was clear to me that a great deal of responsibility had been placed on BRM. In his first statement, BRM expressed concern for his siblings’ wellbeing, that he had to take care of them.

[57] I accept that BRM was trying to tell the truth when he spoke with the police. However, I find his evidence relating to the alleged assault on his mother to be unreliable. In my view, there are too many inconsistencies that undermine the ultimate reliability of the statement.

[58] In his statement, BRM commenced by taking the position that “James was tryin’a calm mom down [13].” He noted that his mother “gets like kind of crazy when she drinks too much beers.” BRM made the following additional observations. These are not an exhaustive list. I include these to illustrate the nature and quality of BRM’s statements to the police.

[59] In his first statement:

• Mr. Hutchinson was “chokin’ mom (p. 5)
• Mr. Hutchinson was dragging mom up by the hand on the stairs (p.5)
• He saw a circle on his mother’s neck (p. 5)
• He was watching two videos of Count Dracula, the fight started to happen “ ‘cause mom was drinking too much beer and then she goes crazy over stuff” (p.7-8)
• They started to fight after the ATV ride (p.9)
• James went upstairs and he kept slapping his mother. His mother bit James. (p.9)
• James slapped his mother across the face (p. 9)
• James was dragging his mother up into the room. His mother was screaming and crying (p.10)
• His mother was saying stop, but James would not listen (p.10)
• BRM was downstairs in the living room and had to chase James upstairs. (p.10)
• He told James to stop and that he did not want Mr. Hutchinson to hurt his mom. “But he was just trying to calm mom down.” (p. 10)
• Mr. Hutchinson was downstairs when he was slapping his mother. His mother then had to knock over the bookshelf because Mr. Hutchinson would not leave her alone. (p.11)
• Mr. Hutchinson was holding his mother down on the floor. (p.11)
• “And she’s [inaudible] you wanna flip me, like hard, to mom. She [sic] was hurtin’ mom. I was so worried.” (p.11)
• Mr. Hutchinson was holding Ms. M with two hands on her neck. She was choking. (p.11)
• Ms. M came running downstairs into the living room. Mr. Hutchinson attempted to pull her up the stairs by the arm. Ms. M’s feet were dragging. Ms. M’s neck “keep banging on the stairs”, and she received a circle on her neck. (p.13-14)
• Mr. Hutchinson and Ms. M came down the stairs three times. Or maybe four or five times. (p.16-17)

[60] In BRM’s second transcribed statement, the only quasi detailed statement made about the alleged assault on his mother is at page eight. He stated, “Just like he’s choking my mom and dragging her up the stairs and hurting her.”

[61] In light of the nature of the statements above, I am unsure how I can properly assess BRM’s statements, except to conclude that there is inconsistency throughout. While there may be a narrative thread that could weave the above statements together into a coherent story, that is not clear to me on a read of the statements. At least not to the standard required for a criminal conviction. Perhaps BRM observed several assaults on his mother as she and Mr. Hutchinson repeatedly went up and down the stairs. However, I note this was not something described by any other witness in this trial.

[62] Holding his evidence to the scrutiny that I must in a criminal trial, in my view, it would be unsafe to convict Mr. Hutchinson solely based on the transcribed statements of BRM.

KM

[63] KM provided a statement to a plain clothed officer at the police detachment. It appears that AM was present for her daughter’s statement. KM was five years old at the time she provided her statement.

[64] On a read of KM’s statement, I could tell that she was a young witness. By this I mean that she was a young child with an unsophisticated understanding of life. That noted, KM was able to understand the difference between the truth and a lie.

[65] I generally found her to provide straightforward information in her statement. At times, due to her ability to communicate and her level of vocabulary, it was not always initially clear what she was communicating. However, I had no difficulty understanding what she was ultimately communicating.

[66] KM stated in her statement that she was spanked by Mr. Hutchinson. She stated that the spanking left her with a “bruised butt.” Those are her words.

[67] On the subject of being placed in a room for time-outs, KM told the officer that she was placed in a room that she and DM play in. Though, she was not allowed to play when on a time-out. She further told the officer that the room was a playroom where they slept in.

[68] KM also told the officer that there was another room, a little room with “spiders and stuff” that Mr. Hutchinson placed her in. She noted that room was cold.

[69] With respect to May 26, 2020, KM did not see Mr. Hutchinson hurt her mother. She was asleep at the time.

[70] I find that I accept KM’s transcribed evidence about being spanked by Mr. Hutchinson. Further, that this spanking left her with lasting red marks on her buttocks. This evidence is corroborated by the evidence of AM, the photograph in Exhibit #3 and Mr. Hutchinson.

DM

[71] DM also provided a videotaped statement to the police. He provided this statement while at the police detachment. He was four years old.

[72] From the transcript, it appears that DM’s statement was approximately 15 minutes long.

[73] In my view, DM’s statement does not assist the Crown in advancing their case.

[74] DM talks about being spanked and the spanking hurt him. He did not provide any evidence that would suggest he received any hurt that was more than trifling or trivial in nature.

[75] Moreover, DM did not talk about any circumstances of the spanking that would make the action an unreasonable application of force by a parent.

[76] DM generally stated that Mr. Hutchinson was mean to his mother. DM could not or did not provide further details of what that meant.

[77] DM stated that Mr. Hutchinson hit his mother. However, it is not clear to me if he actually saw this occur or was told that it happened. Unfortunately, when the officer asked DM if he saw Mr. Hutchinson hit his mother, the officer also asked three further questions, the last was whether Mr. Hutchinson was still living in his house. DM’s response was “no”. The first two questions suggest that DM gestured in some way when the officer asked if he saw Mr. Hutchinson hit his mother. However, I did not see the children’s videotaped statements, so I do not know if DM gestured in the affirmative or negative.

[78] I note that when DM was asked if Mr. Hutchinson was mean to his brothers and sisters? The transcriptionist noted that DM “shakes head”. I take that to mean, DM demonstrably expressed “no”.

[79] I would not be comfortable basing a conviction on the transcribed statement of DM.

Was Mr. Hutchinson a Credible Witness

[80] The case against Mr. Hutchinson depends on my assessment of him as a witness. I generally found Mr. Hutchinson to be a credible and reliable witness. His evidence was straightforward. He did not embellish his evidence. I found him to be truthful, even to his own detriment.

[81] Though Mr. Hutchinson only had a brief presence in the children's lives, he very quickly moved into the role of a father figure. I accept his evidence in this regard. It accords with the evidence of Ms. M and the children. From my assessment of the evidence as a whole, Ms. M and her children have had a challenging time going through life. Even though I ultimately, find Mr. Hutchinson guilty of some of the offences, in some ways he was the best father figure Ms. M's family had experienced. It appears there were many aspects of the relationship that were positive.

[82] I add this assessment to my judgment to assist in explaining that I do not view the interactions between Mr. Hutchinson and the M family as one-sided or entirely abusive. I accept Mr. Hutchinson's evidence that he loved the children. I do not believe his actions towards them were mean spirited or born of malus intent.

[83] To a large extent, Mr. Hutchinson corroborated Ms. M’s evidence about the genesis and nature of their relationship. Indeed, on some points, Mr. Hutchinson filled in evidentiary gaps that Ms. M could not.

[84] Mr. Hutchinson agreed that both were consuming alcohol on May 26, 2020. I accept Mr. Hutchinson’s evidence that Ms. M consumed a significant amount of alcohol. This is a factor I must consider when assessing the reliability of both their evidence.

[85] Mr. Hutchinson had a good recollection about the details of that evening. For example, he recalled cooking barbeque ribs, Caesar salad and Lipton Sidekick Noodles.

[86] Respectfully, I do not agree with the Crown’s characterization of Mr. Hutchinson’s evidence. Other than implying, during cross-examination, that some word choice was indicative of criminal culpability (for example the word “obedient”), Mr. Hutchinson was not phased in cross-examination.

[87] Mr. Hutchinson kept steadfast to his narrative of the events. Only when the Crown made a fair point based on logic or the photographic evidence, did Mr. Hutchinson amend his evidence. He fairly conceded the Crown’s point.

[88] I do not find that these inconsistencies, if present, affect the overall truthfulness of Mr. Hutchinson’s evidence.

[89] I have considered all of Mr. Hutchinson’s evidence. I have considered it in light of the remaining evidence in this trial.

[90] I find Mr. Hutchinson to be a credible witness. He was a forthright witness that gave his evidence in a manner that demonstrated to me that he was recalling events that occurred. He was testifying from his own experience.

Did James Hutchinson choke AM?

[91] There was no dispute between the parties about the legal test for the offence of choking. The Crown fairly outlined recent jurisprudence. The issue for me to decide is whether Mr. Hutchinson applied unconsented force to Ms. M.

[92] Given my findings above about Ms. M’s evidence, I cannot rely on her evidence to support a conviction for this charge. That, however, does not end the analysis.

[93] Mr. Hutchinson agreed that he put his hands on Ms. M. She did not consent to this activity, and he knew that. Though, Mr. Hutchinson denied that the alleged assault on Ms. M took place as she testified. In other words, it was not the one-sided onslaught as she described.

[94] Mr. Hutchinson described Ms. M as being in an extreme state of intoxication. The couple were drinking from a 26-ounce bottle of Bacardi. At one point, Mr. Hutchinson went inside to get towels and check on the children. When he returned the remainder of the bottle, at least half, was gone. Ms. M was completely out of control. She was naked, screaming her head off, and playing music very loudly. Mr. Hutchinson told Ms. M that it was time to go inside for the night. She did not want to and refused. Mr. Hutchinson was concerned about her wellbeing and thought it best if she slept it off in her bed. In his words, “Because she was outside naked and screaming her head off, and it was getting cold and she was uncontrollable I had to do something about it.”

[95] Mr. Hutchinson attempted to remove her from the backyard. It is at this point that I find the assault on Ms. M commenced. Mr. Hutchinson unilaterally decided that he was permitted to remove Ms. M from the backyard to their bedroom. By force if necessary. Mr. Hutchinson did not have Ms. M’s consent to do so. Her actions in resistance of the force being applied to her were obvious.

[96] I must also determine whether this assault amounts to a choking as contemplated by s. 267 (c) of the Criminal Code of Canada.

[97] In her case, R. v. A.K., [2023] OJ No 5854 at paragraphs 96-103, Justice Daviau provided a helpful analysis of what the Crown must establish to prove the offence of Choking. I adopt Her Honour’s reasoning. Her Honour found that this offence is established when an accused, without consent, places their hand around a person's neck and applies force or strangles. The Crown need not prove an actual interference with a complainant's ability to breathe to make out an assault by choking, suffocation or strangulation.

[98] As noted by Mr. Hutchinson, because Ms. M was intoxicated, she was stumbling, falling, and hitting her head and body on items, such as doors, as the two moved into and through the residence. Believing she was going “ballistic”, Mr. Hutchinson thought he had to restrain Ms. M. On his description, Ms. M began to scream “you’re trying to kill me”.

[99] Mr. Hutchinson testified that he placed his arm around Ms. M’s neck in a unified action to both bring her upstairs and prevent her from biting him.

[100] As Mr. Hutchinson tried to bring Ms. M upstairs, the commotion that unfolded captured BRM’s attention and he came down from his bedroom to see what was happening. As noted by Mr. Hutchinson in his evidence,

“He came down from his bedroom and saw his mom completely out of it and me carrying her one hand around her body and then I believe one arm maybe around her neck to — because she was biting and scratching, and going crazy, just to control her from not only hurting me, but herself. BRM saw all this and, you know, I can totally understand from a kid’s point of view you see a guy with a arm wrapped around your mom and she’s crying her head off, he probably thought she was in danger. I kept telling him as I was bringing her up the stairs to the bedroom, “It’s okay. She’s fine. She’s just had way too much to drink. She’s going to sleep it off”, but she wasn’t having it and in her mind I was trying to kill her and there’s no turning that around. I eventually got her up to the bedroom with BRM following us, put her in the bed and said, “That’s it. We’re going to bed. That’s it.” She still wouldn’t stop. She was freaking out crying, going ballistic and that’s when I said, “You know what, I can’t deal with this anymore. You wanna (ph) go, go.” That’s when she ran off to the other side of the house, the duplex…” [14] [emphasis added]

[101] Mr. Hutchinson followed Ms. M to the other side of the duplex and tried to explain the situation to Greg Frame. Ultimately, Mr. Hutchinson returned to his residence and waited with the children until the police arrived.

[102] When the police arrived, Mr. Hutchinson surrendered himself outside the residence and, as he stated in his evidence, admitted he put his arm around her and tried to bring her upstairs.

[103] I turn my mind to other evidence in this trial that might support the fact that the unconsented touching was a choking.

[104] Though I found I cannot rely on BRM’s account of this incident on its own, BRM’s account does provide some corroborative evidence of the fact that Mr. Hutchinson applied force to his mother in a way that suggested his mother was not consenting. There are examples of this in BRM’s statements.

[105] In his statement, BRM seemed to describe Mr. Hutchinson and his mother traversing up and down the stairs three-five times. At one point, Mr. Hutchinson had two hands on her neck. At other times, he was dragging her up the stairs by the arm, her neck banging on each step as they went.

[106] Courtney Frame also provided some evidence that would corroborate the offence of choking. The house that Mr. Hutchinson and Ms. M lived in was a larger house with two separate residences contained within. Ms. Frame lived in the other residence. Ms. Frame testified that she heard Ms. M yelling on May 26, 2020. She specifically heard Ms. M yell “you are choking me”. Ms. Frame also observed injuries to Ms. M’s head and neck.

[107] I am mindful of the photographic evidence of the injuries to Ms. M’s head and neck. This is persuasive evidence that an injury occurred. However, my role in a criminal trial is not to determine what happened. My role is to determine if the Crown has proven the essential elements of the offence charged. In my view, this evidence assists me in determining if Mr. Hutchinson choked Ms. M. This evidence corroborates the evidence of Mr. Hutchinson, Ms. M and BRM’s statement.

[108] However, I am not persuaded based on the totality of the evidence that the injury to Ms. M’s head was caused by Mr. Hutchinson. Given my findings with respect to Ms. M and BRM’s evidence, I have a doubt how this injury occurred. Moreover, Mr. Hutchinson testified that Ms. M caused the injury by pulling a bookcase down upon herself.

[109] Considering the evidence as a whole, I am satisfied that Mr. Hutchinson intentionally applied force to Ms. M, and that she did not consent to the application of that force. I am satisfied that the force applied included an application of force to Ms. M’s neck. This force left the abrasion marks evidenced in exhibit 4A on Ms. M’s neck. I come to this finding based on the photographic evidence, the evidence of Courtney Frame, Mr. Hutchinson’s evidence, and, in part, BRM’s evidence.

[110] Further, I accept Mr. Hutchinson’s evidence that this occurrence was not a one-sided assault as described by Ms. M. I accept that Mr. Hutchinson’s initial intention was in consideration of the danger he believed Ms. M to be in due to her intoxication. I accept that Mr. Hutchinson subjectively believed physically bringing her into the safety of the residence was the right thing to do. That, however, is not a lawful excuse for the application of the force he applied. Ms. M is an autonomous person with control over her own body. Mr. Hutchinson should have allowed her to make that decision. Perhaps calling for assistance if he felt her safety was at risk.

[111] Accordingly, there will be a finding of guilt on count seven – assault by choking.

Did James Hutchinson use unreasonable force in disciplining the Children?

[112] As I noted, there are inconsistencies in the Crown’s evidence that I find are meaningful. Based on the welter of conflicting evidence before me, had that been the only evidence in this trial, I would have been left with a reasonable doubt.

Assault Bodily Harm

[113] However, Mr. Hutchinson testified that he spanked KM leaving injuries.

[114] I pause to note that I have approached Mr. Hutchinson viewing him as a parent or caregiver to the children. As I noted, it was agreed that Mr. Hutchinson quickly moved into this role. Ms. M testified that she was OK with Mr. Hutchinson exercising proper disciplinary action.

[115] As I noted, I found Mr. Hutchinson to be a believable witness. Mr. Hutchinson admitted to spanking the children on the bum. His evidence about spanking KM was particularly convincing. Mr. Hutchinson testified that he spanked KM in her bedroom. He spanked her bare bottom with his bare hand. In cross-examination, Mr. Hutchinson admitted to spanking KM three, four, or five – less than ten times. Mr. Hutchinson further admitted that the force he applied was more than what was needed for corrective discipline.

[116] Mr. Hutchinson testified that he spanked the children, “for, in his. mind, the right reasons, to discipline them, to correct bad behaviour, to protect them from doing dangerous things”. For Mr. Hutchinson, spanking was a form of discipline he experienced as a child.

[117] In 2004, in a case called Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) [15], the Supreme Court of Canada, when considering the constitutionality of s. 43 of the Criminal Code of Canada, commented on the use of corrective force by parents or caregivers. The Court noted that corrective force is permissible if its use is minor and reasonable in the circumstances. The test in determining what is reasonable is an objective one. The Supreme Court provided the following guidance:

• Parents/caregivers can only use corrective force (or physical punishment) that is minor or “transitory and trifling” in nature. For example, spanking or slapping a child hard enough that it leaves a mark or bruise would not be considered “transitory and trifling” and would not be reasonable.
• Teachers cannot use force for physical punishment under any circumstances. Teachers may be permitted to use reasonable force toward a child in appropriate circumstances, such as to remove a child from a classroom.
• Physical punishment cannot be used on children younger than two-years-old or older than twelve-years-old.
• Physical punishment cannot be used on a child in anger or in retaliation for something a child did.
• Objects, such as belts or rulers, must never be used on a child and a child must never be hit or slapped on the face or head.
• Any use of force on a child cannot be degrading, inhumane, or result in harm or the prospect of harm.
• Physical punishment cannot be used on a child who is incapable of learning from the situation because of a disability or some other factor.
• The seriousness of the child’s misbehaviour is not relevant to deciding whether the force used was reasonable. The force used must be minor, no matter what the child did.

[118] Applying the Supreme Court’s guidance to the facts of this case, the force used by Mr. Hutchinson against KM when he spanked her falls outside what is reasonably permissible under s. 43 of the Criminal Code. Mr. Hutchinson spanked KM hard enough to leave red marks and bruising on her buttocks. In exhibit 3, to my eye, you can see the outline of finger marks on KM’s right buttocks.

[119] In his evidence, Mr. Hutchinson candidly admitted that he realized he used excessive force when he saw the marks on KM after he spanked her. As he noted in his examination in chief,

“Yeah, I, I spanked them, but it was never out of hate or anger. It was to correct bad behaviour and to protect them, and one day I guess when I did happen to spank KM for the first time it left some marks on her bum. And I felt terrible when I, when I saw it, right? I’ve never left any marks on any of the other children before. It was never something that happened before and it happened one time with KM. I guess, you know, I may have used a bit too much force, but it was never to hurt her. It was to discipline her and it turned out where she had bruise marks on her bum, and I, I messed up. This was a one-time thing. This was never a continuous thing.” [emphasis added]

[120] I note that Mr. Hutchinson theorized that the marks on KM’s bottom may have been because she had never been spanked before. I do not accept, nor do I place any weight in that belief. There was no evidence in this trial to support a finding that the repetitive application of force can lead to a tolerance of or resistance to injury. Nor am I prepared to make this finding as a commonsense inference.

[121] I find this exercise of force on KM was not “transitory and trifling”. In these circumstances, notwithstanding Mr. Hutchinson’s original intensions, it was not reasonable for him to use this level of force on KM. To put it another way, Mr. Hutchinson was not justified in spanking KM hard enough to leave bruises on her buttocks.

[122] Accordingly, there will be a conviction in relation to count one – assault causing bodily harm on KM.

[123] In relation to counts two and three, the alleged assault bodily harm against DM and BRM, I am not convinced beyond a reasonable doubt that any force applied by Mr. Hutchinson was unreasonable in the circumstances. As I noted, it is not clear to me beyond a reasonable doubt based on the evidence I accept of the children and Ms. M, that there were injuries to DM or BRM. Further, I accept Mr. Hutchinson’s evidence that any spanking he administered to both boys was solely for corrective purposes.

[124] There will be an acquittal on counts two and three.

Forcible Confinement

[125] I now turn to counts four, five and six. These are the counts alleging Mr. Hutchinson forcibly confined the children in the cold cellar.

[126] There was a thread of this happening throughout everyone’s evidence, including Mr. Hutchinson. Mr. Hutchinson candidly admitted that he placed the children in the cold cellar. He called it the “jail” because, “when you are in trouble, you go for a timeout”. Mr. Hutchinson testified that he believed it was similar to actual jail. He hoped calling the cold cellar a jail would deter the children from wanting to attend jail later in life. Quoting Mr. Hutchinson, “I also said that in hopes that the children would never want to go to jail in the future and use that as sort of a back of their mind, you know, this is what jail’s like.”

[127] Mr. Hutchinson testified that the cold cellar was the only room in the residence in which they could adequately restrict the children’s movement. On Mr. Hutchinson’s evidence, he took steps to ensure the room was safe – spray foaming cracks to prevent a draft and placing a chair in the room. The light remained on in the room. Using a timer, the children were never in the room for more than 15 minutes.

[128] Mr. Hutchinson testified that he placed each child in the cold cellar a handful of times. More specifically, DM 4 or 5 times. KM 2 or 3 times. And BRM 1 to 2 times. This occurred until family members moved out freeing up a bedroom for the children upstairs. After that, the cold room was used as a storage room for various items. Including the items displayed in the images contained in exhibit #2.

[129] Mr. Hutchinson specifically testified that the children were never placed in the cold cellar when chemicals were in the room.

[130] Mr. Hutchinson candidly conceded he probably should not have placed the children in “the jail”, however, he testified that they had no other option at the time and both thought it was the “best thing to do”.

[131] I accept Constable Aaltink’s description of the cold cellar. When she viewed the room, the officer described it as quite dark and quite chilly with a gravel, pebbly floor.

[132] From exhibit #2, descending a few wood steps was required to enter the room. One of the walls was uncovered exposing sheathed electrical wiring and pink insulation. A small folding, partially rusted chair was situated in the centre of the room.

[133] The Crown argued that I should find that the items on the shelf were present at the time the children were placed in there. These items included various household products including paint thinner, earwig destroyer, plant food, poly-fill, cake decoration or sprinkles, and oven cleaner. Mr. Hutchinson testified and argued that these items were not placed in the cold cellar until a time after the room stopped being used for time-outs. Mr. Hutchinson found mold under the kitchen sink and placed many of the items there.

[134] I am not prepared to find that these items were present in the room. The only evidence in this trial that speaks to the presence of the items is that of AM. I am not satisfied that I can place any weight on her evidence on this point. I note that Mr. Hutchinson provided a plausible reason for the timing and placement of the items. I further note that the children, in their statements, do not refer to the items.

[135] That noted, even factoring in doubt about the presence of chemicals, Mr. Hutchinson placed a 4-year-old, a 5-year-old and an 8-year-old in a cold, damp room with exposed pink insulation and a gravel floor. They were behind a closed door by themselves for up to 15 minutes. And he did so because he believed it simulated attendance at an actual adult jail.

[136] This act deprived the children of their liberty that was more than incidental or momentary in nature. The lack of other suitable locations for a timeout discipline did not justify the use of the cold room. It may add context for why the decision was made to place the children in the cold room. However, put simply, it did not make it OK.

[137] I find that this form of discipline was excessive and does not engage a s. 43 defence.

[138] I appreciate that some of our parents may have exercised harsher forms of discipline on us. And we sometimes look to our upbringing as a moral guide for the upbringing of our children. That does not necessarily make this activity lawful according to society’s standards.

Conclusion

[139] In conclusion, I am not left with any doubt that Mr. Hutchinson used excessive force in disciplining KM. Further, that he forcibly confined the children in the cold cellar. This confinement went beyond what would be reasonable discipline in the circumstances.

[140] I am not left with a doubt that Mr. Hutchinson choked Ms. M.

[141] Accordingly, Mr. Hutchinson, I find you guilty of one count of Assault Causing Bodily Harm, three counts of forcible confinement and one count of assault by choking.

[142] In summary, convictions will be entered on Counts 1, 4, 5, 6, and 7. Acquittals will be entered on counts 2 and 3.

Released: August 20, 2024 Signed: Justice Andrew F. Falls

[1] R. v. W. (D ) , [1991] S.C.J. No. 26 (S.C.C.). [2] R. v. Starr , 2000 SCC 40 , [2000] S.C.J. No. 40 (S.C.C.) at para. 242 . [3] R. v. Morrissey , [1995] O.J. No. 639 (Ont. C.A.) per Doherty J.A. at para 33; R. v. H.C., 2009 ONCA 56 , [2009] O.J. No. 214 (Ont. C.A.) per Watt J.A. at para. 41; R. v. Slatter , 2019 ONCA 807 , [2019] O.J. No. 5073 Ont. C.A. per Trotter J.A. at para. 60; Paciocco and Stuesser, The Law of Evidence, 6th ed . (Toronto: Irwin Law, 2011), pp. 32 to 33. [4] R. v. J.J.R.D . , [2006] O.J. No. 4749 (Ont. C.A.) per Doherty J.A. at para 47; R. v. J.W., [2014] O.J. No. 1979 (Ont. C.A.) per Benotto J.A. at para. 26. [5] R. v. Norman , [1993] O.J. No. 2802 (Ont. C.A.) per Finlayson J.A.; R. v. Stewart, supra at para. 19; R. v. G.G. , [1997] O.J. No. 1501 (Ont. C.A.) per Finlayson J.A. at paras. 14 to 19; R. v. Gostick , [1999] O.J. No. 2357 (Ont.C.A.) per Finlayson J.A. at paras. 15 to 17. Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193 , 99 O.R. (3d) 1 (Ont. C.A.) per Doherty J.A. at para 66. [6] R. v. Stewart, supra at para. 27; R. v. M.G. , [1994] O.J. No. 2086 (Ont. C.A.) per Galligan J.A. at para. 23; R. v. Gostick , supra at para. 14 . [7] R. v. C.P. , 2021 SCC 19 , at para. 35 ; R. v. Le , 2019 SCC 34 , at para. 266 ; R. v. W.H. , 2013 SCC 22 , at para. 32 [ W.H .] ; R. v. Francois , [1994] 2 S.C.R. 827 , at para. 14 . [8] R. v. R.W.B., [1993] B.C.J. No. 758 (B.C.C.A.) per Rowles J.A. at para 29; R. v. M.G. , supra at para. 24 ; R. v. Stewart, supra at para. 27; R. v. A.M., 2014 ONCA 769 , [2014] O.J. No. 5241 (Ont. C.A.) at paras. 12 to 13 . [9] R v W(R) , [1992] 2 SCR 122 at para. 23-26 . [10] R v Mootoo, 2021 ONSC 5984 at para.117. [11] Ibid , at para. 117. [12] R v B (G) , [1990] 2 SCR 30 at pp. 54-55. [13] Transcript of BRM video statement #1, May 27, 2020, p. 4. [14] Court transcript of February 15, 2024, page 96. [15] Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4 .