Warning and Non-Publication Order
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:
486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES
(1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2.1) OFFENCES – The offences for the purposes of subsection (2) are:
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
DATE: 2025-04-09
COURT FILE No.: 24-48105095
Toronto Region
BETWEEN:
His Majesty the King
— AND —
Tiena Lewin
Before Justice Cidalia C. G. Faria
Heard on April 8, 2025
Reasons for Judgment released on April 9, 2025
Stuart Rothman — counsel for the Crown
Roma Mungol — counsel for the defendant Tiena Lewin
Faria J.:
I. Introduction
[1] Tiena Lewin, an ECE (Early Childhood Educator) student while on a placement at a daycare in Toronto, is charged with assault on a 17-month-old child on January 23, 2024, contrary to s. 266 of the Criminal Code.
[2] The Crown called a witness to the event, A.M., and filed three photos of the injury the child sustained. Ms. Lewin testified in her own defence.
[3] The issue is the credibility and reliability of each witness, and the amount of force Ms. Lewin used to pull the chair the child was sitting on.
II. Legal Principles
[1] As in every criminal case, Ms. Lewin is presumed innocent. The burden is on the Crown to prove each element of the charge beyond a reasonable doubt. The burden never shifts. Reasonable doubt is based on reason and common sense from the evidence or lack of evidence. It is higher than a balance of probabilities, yet less than proof to an absolute certainty. [1]
[2] The definition of an assault, pursuant to s. 265(1)(a) is when a person:
without the consent of another person, applies force intentionally to that other person, directly or indirectly;
[3] When considering the credibility and reliability of a witness, I may accept some, none, or all, of a witness’ evidence. Credibility relates to whether a witness is speaking the truth. Reliability relates to the actual accuracy of the testimony. The credibility and reliability of a witness must be “tested in the light of all the other evidence presented.” [2]
[4] As Ms. Lewin testified in her defence, the applicable analytical framework is that of W. (D.). [3]:
i. If I accept the evidence of Ms. Lewin, I must acquit her.
ii. Even if I do not accept the evidence of Ms. Lewin, if her evidence raises a reasonable doubt, I must acquit her.
iii. Even if I do not accept the evidence of Ms. Lewin, nor does it raise a reasonable doubt, on the totality of the evidence I do accept, I must be satisfied beyond a reasonable doubt that the Crown has proven every element of the offence.
III. Summary of Evidence
[5] A.M. is an ECA (Early Childhood Assistant) who has worked at the L.J.D. for almost 25 years. She testified that on January 23, 2024, her supervisor S.M. asked her to move from her Infant Room, to assist in the Toddler Room after nap time. The Toddler Room is for children ages ranging from 18 months to 2 and half years.
[6] Ms. A.M. arrived in the Toddler Room at approximately 5 minutes before 3:00 p.m. MM, a child who had been in the Infant Room with her, and who had transitioned to the toddler room 3 weeks before, was crying with a runny nose and ran to her. Ms. A.M. wiped her tears, cleaned her nose, hugged her, and sat her down at a table with a Winnie the Pooh electronic book. The other two staff were busy, one with diaper change and the other cleaning a cot that had been soiled during nap time.
[7] Ms. A.M. was facing MM and able to see all the children when she heard the new student, Ms. Lewin, who had started at the daycare the day before, tell MM in a loud voice to pick up the blocks from the floor. This confused Ms. A.M. as MM had not been playing with the blocks and was reading a book. She then heard Ms. Lewin say to MM, “I told you to pick up the blocks” in a bossy tone and saw Ms. Lewin pull the chair “hard” from under the child.
[8] MM went “flying” as she described it, hit the table, and fell to the floor. Ms. A.M. saw Ms. Lewin pick MM up, try to console her and wipe the blood from her face. Ms. Lewin then passed MM to Ms. A.M., who asked Ms. Lewin to get ice.
[9] Ms. A.M. was asked to call the child’s mother who works in the building which she did. The child’s mother came soon after. Ms. A.M. heard Ms. Lewin tell the mother that MM was throwing blocks. Ms. A.M. testified she told Ms. Lewin to tell the truth that she had pulled the chair from under the child, and the child fell, and Ms. Lewin did. The child’s father came a while later, he was upset and spoke to Ms. Lewin.
[10] The child attended the hospital, which is shown in the photos filed. MM is on a hospital bed. The photos show a cut MM sustained above her left lip.
[11] Ms. A.M. testified that the child was one of the younger children at 17 months in the Toddler Room, and weighs about 20 lbs.
[12] During cross-examination, Ms. A.M. testified:
- Students are placed at the daycare to learn and get experience.
- Ms. A.M. did not give Ms. Lewin any instructions.
- Ms. Lewin had been organizing the children and telling them what to do before interacting with MM.
- MM was sitting at the same table with the book Ms. A.M. had given her from the time Ms. A.M. sat her down to the time Ms. Lewin pulled the chair. MM did not change tables to the block table. She did not play with blocks or throw any blocks at children.
- Ms. Lewin was standing by MM when she spoke to the child.
- She saw Ms. Lewin pull the child’s chair only once, and with sufficient force that the child fell.
[13] It was suggested to Ms. A.M. that she was on her phone during the incident. She responded that she was not and did not remember where her phone was. She testified she observed the entire incident.
[14] Ms. Lewin testified that she is an ECE student at Humber College and started her placement at the L.J.D. the day before the incident. On January 23, 2024, she was assigned to the Toddler Room although she had no experience with children that young. That day she assisted with the programming and after nap time, she was asked to set up 3 play tables, which she did. One table had large structures, one with blocks and one with books.
[15] She testified MM was one of the children who had gone to the block table and was throwing blocks at the other children. She testified that she kneeled by MM’s chair to be at eye level with her, and to get the child’s attention, she turned the chair MM was sitting on toward her. She testified that she asked MM to pick up the blocks and play with the blocks nicely.
[16] Ms. Lewin testified that she pulled the chair a second time, and then the child fell forward and got hurt.
[17] Ms. Lewin described going behind MM’s chair, placing both hands on the back of the chair and “gently” pulling the chair to get MM away from the table. This is when MM fell. She testified was kneeling the whole time and made the child “aware of everything that was going to happen” before it happened.
[18] Ms. Lewin testified that Ms. A.M. had come into the room, had looked at her, and had given her no instructions. She testified Ms. A.M. was sitting at the rectangular table directly opposite from the child and was on her phone during the incident.
[19] After the child fell, Ms. Lewin testified she picked up the child, wiped the blood from her face and gave the child to the supervisor. Ms. Lewin theorized that MM’s tooth had cut her upper lip when her face hit the table.
[20] In cross-examination, Ms. Lewin testified that:
- Ms. A.M. was on her phone most of the time she was in the room.
- She did not appreciate how light MM was when she first moved the chair.
- She did not put a hand in front of MM while she pulled the chair away.
- She did notice MM was a younger and smaller child in the room, but did not know she was 17 months, and did not know she weighed about 20 lbs.
[21] Ms. Lewin was firm that she did not intend for MM to get hurt.
IV. Position of the Parties
[22] Defence counsel submits that the court should accept Ms. Lewin’s evidence that when she gently pulled the chair while MM was sitting on it, she had no intention of hurting MM, and unfortunately the child fell forward and got hurt. She submits that the court reject Ms. A.M.’ evidence as she was on her phone, and did not see everything, she should have been supervising Ms. Lewin and watching the children. She submits the Crown has not proven every element of the charge beyond a reasonable doubt.
[23] The Crown acknowledged that Ms. Lewin did not want to injure MM. However, he submits that Ms. Lewin used unreasonable force when she pulled the chair from under the child causing her to fall and sustain an injury. He submits Ms. A.M.’ evidence is reliable and credible, it was not shaken, and the photos of the injury support his submission that the force used was excessive.
V. Analysis
[24] On all the evidence heard, there is no dispute that Ms. Lewin pulled the chair the child was sitting on. As a result, 17-month-old MM fell forward, hit her face on the table, and fell to the floor. She sustained a cut on the left side of her upper lip that bled immediately. MM’s injury was attended to with ice, and she went to hospital where the photos of the injury were taken.
[25] Ms. Lewin intentionally applied force to MM indirectly by pulling the chair she was sitting on and caused her to fall and sustain an injury. All the elements of the offence are proven beyond a reasonable doubt.
[26] The issue is the amount of force applied.
[27] On Ms. A.M.’ evidence, Ms. Lewin pulled the chair “hard”, with “medium” force, so hard that the child went “flying straight” at the table. On Ms. Lewin’s evidence, she pulled the chair gently and MM accidently fell forward.
[28] Ms. A.M. was facing MM at the time, which Ms. Lewin confirmed. She paid particular attention to MM because she knew her. She had just cleaned and consoled her. She had just given her a book to look at and even remembered it was a Winnie the Pooh book. Ms. A.M. made reasonable and fair evaluations. Ms. A.M. thought Ms. Lewin was loud and her tone was bossy. However, because she did not know how Ms. Lewin spoke normally, given that it was her second day, she thought she would speak to the supervisor first before she made any comment directly to Ms. Lewin. She agreed that children get hurt in daycare.
[29] Ms. A.M. appeared to have no animus toward Ms. Lewin. In fact, she went out of her way to testify positively and sympathetically for Ms. Lewin.
[30] For instance, Ms. A.M. testified Ms. Lewin had just started in the daycare the day before, and she was there to learn. She testified that maybe Ms. Lewin had not been speaking loudly to the children all day. She thought maybe she had not calculated how light MM was. She did not think Ms. Lewin wanted to hurt the child. She testified Ms. Lewin tried to console the MM after she fell, and that Ms. Lewin looked sad that the child was hurt.
[31] I accept Ms. A.M.’ evidence. She was not on her phone, and she saw the entire event.
[32] I reject Ms. Lewin’s evidence that:
- she spoke gently to MM,
- MM went from one table to the other,
- MM threw blocks at other children,
- she kneeled and first pulled MM’s chair toward her,
- she told MM “everything that was going to happen” before she pulled the chair from under MM
and that Ms. A.M. had missed all of these events because she was on her phone.
[33] Nor does Ms. Lewin’s evidence raise a reasonable doubt. The child would not have fallen with such force as to cause the injury that is easily observable in the photos if Ms. Lewin had ever so gently pulled the chair from under the table as she demonstrated to the court.
[34] A word on de minimis as it was discussed during submissions, I refer to the Ontario Court of Appeal’s discussion in R. v. Murdock, 2003 ONCA 4306, at para. 29:
“…The “de minimis” defence at common law operated to prevent the conviction of those whose conduct, while falling within the four corners of the penal provision, were so trivial as to pose no risk to the public interest: Stuart, supra, at pp. 594-98. The harm principle also underlies the long accepted rule of statutory interpretation which directs that criminal statutes, where possible, should not be read so as to encompass conduct which is trivial or harmless (citations removed)…”
[35] The force Ms. Lewin applied was not trivial, nor harmless, particularly in a daycare setting, dealing with an obviously light and vulnerable toddler. I accept Ms. A.M.’ description that Ms. Lewis did pull the chair “hard” and this intentional application of indirect force on MM is an assault.
VI. Conclusion
[36] I find Tiena Lewin guilty of the charge.
Released: April 9, 2025
Signed: Justice Cidalia C.G. Faria
Footnotes
[1] R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 14.
[2] R. v. B (BW), [1993] No. 758 at para. 28.
[3] R. v. W.(D.), [1991] 1 SCR 742.