ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: SCA(P) 2331/12

DATE: 2013-11-18

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

Lee Thompson

Adam Bernstein, for the Respondent (Crown)

Richard H. Parker, Q.C., for the Appellant

Appellant

HEARD: November 4, 2013

THE HONOURABLE MR. JUSTICE P.B. Hambly

REASONS FOR JUDGMENT

Introduction

[1] Lee Thompson (the appellant) appeals his convictions on September 18, 2012 on charges of assault and assault with a weapon on July 26, 2011 of Angel Baker (Angel) and his sentence which was a suspended sentence and 15 months probation. The appeal will be granted and an acquittal entered.

The Facts

[2] Joey Thompson (Joey), age 19 and Pierce Thompson (Pierce), age 14 are children of the appellant from a previous relationship. He is separated from their mother. He was living at a residence in the City of Brampton with Camilla Baker (Camilla). Also living in the residence were Sierra Harper (Sierra), age 6 and Savannah Harper (Savannah), age 14. The appellant and Camilla are the parents of Sierra and Savannah. Also living in the residence was Amy, a daughter of the appellant's brother and hence a cousin of Joey and a niece of the appellant. She was about the same age as Joey. The appellant was a sales representative of the Liquor Control Board. He had worked there for about 20 years. He was 45. He came to Canada from Jamaica when he was six. Camilla worked as a nurse. The Appellant and Camilla had lived together for 16 years.

[3] Sierra, Savannah and Angel, with the Appellant and Camilla, lived permanently at the residence. Joey and Amy had lived there for several months. Pierce lived with his mother. He came to visit periodically for several days at a time.

[4] In the evening on July 26, 2011, the appellant, Savannah, Sierra, Pierce, Angel and the appellant were in the residence in Brampton. The appellant had sustained a minor wound to his head. The bedrooms were on the second floor of the residence. He had purchased a bottle of rubbing alcohol that week. He went to his bedroom to get it to treat the wound to his head. He could not find it. Sierra was there. She said that she had seen Angel with it. Angel, Pierce and Savannah were also there. Angel denied having it. The appellant located an empty bottle of alcohol about 2 to 3 inches by about 6 to 7 inches and 50 ml in volume in a bathroom shared by Angel and Amy. He thought that it was the bottle that he had purchased and that Angel had used it up. In fact the bottle belonged to Amy.

[5] There was a confrontation between the appellant and Angel in Angel’s bedroom. After the incident Angel called the police. They came to the residence and arrested the appellant. He was taken to the police station where he was held in custody. He was released at a bail hearing on terms that he not attend at the residence and that he have no contact with Angel. The police took Savannah, Angel and Pierce to the police station where they videotaped interviews with them. The crown called Pierce and Savannah at the trial. The crown did not call Angel. The appellant testified.

[6] The witnesses agreed that the whole incident lasted between 15 and 20 seconds. Angel sustained no injuries. The appellant, in an overhand motion, threw the empty plastic bottle at Angel. It missed her and hit a wall. Each of Pierce, Savannah and the appellant gave different versions of what happened next.

[7] Pierce freely admitted that he did not like his father. He called him Mr. Thompson. He said that his father had been abusive of him when he was younger. He shared his mother’s opinion that his father did pay enough support for him and his mother. He said that his father favoured his own children over Angel. He told false stories about Angel to Camilla to get her in trouble. He had a tendency to blame her for everything that went wrong in the household.

[8] When the appellant could not find his bottle of alcohol, he accused Angel of using it up. Angel said that she had used Amy’s bottle of alcohol. When he found the empty bottle of alcohol he believed wrongly that it was his bottle that Angel had used. He said that after he threw the bottle at Angel, she said “What is your problem”. He then moved toward Angel and attacked her by grabbing her by the throat. He said that he “giggled” his hand on her throat. He appeared to be angry. Savannah intervened between the appellant and Angel. Pierce was concerned about Sierra and getting her out of the way. Angel broke free. She went downstairs and called the police.

[9] Savannah was close to her father. She wanted to protect her father. She said that when she went to the police station that Angel told her what to say. She agreed that she said in a statement to the police that the appellant had choked Angel. She stated that this did not happen. She said that Angel had told her to tell this to the police. She did not realize that her father would be charged based on what she said. The videotaped statement was played for her in court to give her an opportunity to refresh her memory. She continued to say that she could not remember and to deny that she saw the appellant choke Angel.

[10] The trial judge gave the crown leave to cross examine Savannah. She would not adopt her statement. The trial judge granted the crown’s application to have the statement admitted for its truth under the principled exception to the hearsay rule. Without analysis he held that it met threshold reliability. The videotape was not filed as an exhibit. It is difficult to understand how the statement could meet threshold reliability given Savannah’s evidence that it was the product of what Angel told her to say. There was no evidence that the police followed any of the procedures recommended in R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 SCR 740. In his reasons, however, the trial judge held that he was unable to conclude beyond a reasonable doubt, even with the statement admitted, that the accused choked Angel.

[11] The appellant testified that Angel had been very disrespectful to him and Camilla for a long time. She stole from them. They locked their bedroom to keep her out. When he found the bottle of alcohol he said to Angel “here is the bottle of alcohol”. Angel said “I didn’t touch your fuckin alcohol”. He tossed the empty bottle in her direction to emphasize that that this was the bottle. She said “you fuckin asshole”. He moved toward her. His intention was to take hold of her in a controlled way and put her out of the house to think about it. He placed his right hand on her left hand. Savannah came between them. Angel went to the back of the room. He came behind her and took hold of her right hand and put his left hand around her left shoulder and attempted to escort her out of the bedroom. He had difficulty controlling her. She said “let me go you fucking idiot”. He attempted to put his hand over her mouth to stop her from swearing in front of Sierra. She broke free, went downstairs and said that she was calling the police which she did. He said that he was angry but not “overly angry”.

[12] In cross-examination, the crown brought to his attention that the police were called on September 5, 2010 in a similar situation where he had forced Joey from the house in response to her unruly behavior. He said that the police had told him he was justified in doing this to discipline Joey. He said that he was attempting to do the same thing with Angel.

[13] The appellant testified in cross examination as follows:

Q. Where did you expect your 15 year old daughter to go if you’re kicking her out?

A. I wasn’t kicking her out in the sense. My whole – my – my intent was to make it appear that way. What I wanted her to do was sit out on the porch and just maybe sit there 15, 20 minutes and think about, you know, her behaviour.

Q. Sorry, you wanted – to recap, to forcibly remove your 15 year old daughter from the house due to her swearing at you?

A. Not – amongst other things, the whole behaviour.

Q. Well, what – what other behaviour did she exhibit that night?

A. The behaviour that she’s been exhibiting that whole week, that whole month, the whole – the whole year.

Q. What swearing at you, causing…

A. No…

Q. …a disturbance?

A. …stealing – stealing being abusive towards her sisters, the lying, just the whole deceit, the breaking into our room. It was just – that was like – sort of like a final straw. Something in our approach that I was going to take to ensure that she understands that, you know, eventually she’s going to have to leave the home because of her behaviour. It was getting too disruptive, too stressful for her mother and I. We no longer felt that we can control her. We put a lock on our door not only to keep her out, but to keep her away from us because she was hanging out with a bad crew. (Transcript, July 20, 2012 p. 56-57)

The Trial Judge’s Reasons

[14] In his reasons the trial judge stated the following:

Based on the totality of the evidence, I find that Mr. Thompson became angry at Angel because he believed that she had stolen his rubbing alcohol. Her denials merely incensed him further and he subsequently threw the bottle at her although it did not strike her. She likely told him defiantly “What’s your fucking problem” or words to that effect. He then walked towards her and grabbed her in the upper chest area for a few seconds. Savannah and Peirce intervened to get him to release his daughter. Angel then ran downstairs, followed by Peirce and called the police. I also find, as a fact, that Mr. Thompson was not trying to discipline his daughter and that he was accosting her because he believed she had stolen his rubbing alcohol. (Transcript, September 18, 2012 p. 9)

… Mr. Thompson threw the bottle at Angel because he was angry at her for her alleged theft of his rubbing alcohol. It is only after he did so that she retorted, “What the fuck is your problem” or words to that effect. Enraged, had then proceeded to grab her from behind in the upper shoulder area and only released her after his children intervened. There was nothing corrective about his actions. He was frustrated and angry at Angel and simply lost control of his anger and emotions. He did not release her on his own volition but only after his children had intervened.

In my view his actions were not reasonable in the circumstances and do not come within the ambit of Section 43 of the Code. As a result, I find Mr. Thompson guilty of the offence of assault and assault with a weapon which occurred on July 26, 2011. With respect to the third count there is an paucity of evidence in support of that charge and to that extent he is dismissed.

I have reviewed the statement of Savannah insofar as the Crown’s application that the court should admit it on the basis of a threshold reliability as part of the Crown’s case. I agree that given Savannah’s recantation or her questionable lack of recollection about the choking incident and given, in my view, what appears to be it’s reliability given that it was videotaped and it was made shortly after the incident, that the statement would meet the threshold of reliability.

But assessing the statement in light of all the other evidence it is my view that the slight concerns as to whether or not the accused actually choked his daughter, although I find that he did assault her by grabbing her in the upper shoulder area, make me reluctant to conclude beyond a reasonable doubt that he physically choked her. However, I find him guilty of the offence of assault and assault with a weapon. (Transcript, September 18, 2012 p. 11-12)

Grounds of Appeal

[15] The appellant submits that the trial judge made errors as follows:

1. He misapprehended the evidence.

2. He did not properly assess the Appellant’s credibility.

3. He did not properly apply the law to the facts on the charge of assault with a weapon.

4. He did not properly apply s. 43 of the Criminal Code.

Analysis

Assault with a Weapon

[16] In R. v. Lamy, 2002 SCC 25, 2002 S.C.C. 25 the accused was convicted of sexual assault with a weapon. He inserted a dildo in the victim’s vagina. This caused bruising and bleeding. The trial judge found that he did so without the victim’s consent. The trial judge convicted him without reference to the definition of weapon in the Criminal Code. The Court of Appeal substituted a conviction for sexual assault simpliciter. It held that there must be proof that the accused must have intended to injure with a weapon. The Supreme Court of Canada in the judgment of Justice Arbour restored the conviction. The relevant sections of the Criminal Code are as follows:

2. In this Act,

"weapon" means any thing used, designed to be used or intended for use

(a) in causing death or injury to any person …

272. (1) Every person commits an offence who, in committing a sexual assault,

(a) carries, uses or threatens to use a weapon or an imitation of a weapon …

[17] Justice Arbour held that “… the accused must have knowingly or recklessly used the object without the consent of the victim in circumstances where injury was reasonably foreseeable. …” (para. 16). The small, empty plastic bottle which the accused threw at Angel did not strike her. There was no evidence of “circumstances where injury was reasonably foreseeable”. The trial judge made no analysis whether injury to Angel was reasonably foreseeable as a result of the Appellant’s throwing the bottle in her direction.

[18] The Criminal Code defines the offence of assault as follows:

265. (1) A person commits an assault when

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

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose;

The empty bottle did not touch Angel. She did not testify. The accused testified that his intent was to show Angel the bottle of rubbing alcohol that he believed that she had used. The trial judge made no finding that by throwing the bottle at Angel that the appellant attempted to apply force to her and that he caused Angel “to believe on reasonable grounds” that he had the “present ability to effect his purpose”. It would have been difficult for him to do so since Angel did not testify.

Assault

[19] In R. v. B.S., 2008 10389 (ON SC), [2008] O.J. No. 975 the accused was convicted of assault of his 15 year old daughter. She had a boyfriend who was introducing her to the use of drugs. She was away from the family home. The accused located her, forcibly placed her in his truck and brought her home. The trial judge convicted the accused of assault. Justice Robertson, on appeal, acquitted the accused. The Criminal Code states the following:

43. 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.

[20] Justice Robertson held that trial judge misinterpreted Canadian Foundation for Children Youth and the Law v. (Attorney General) (2004), 2004 SCC 4, 180 C.C.C. (3d) 353 (S.C.C.) by holding that this section did not apply to teenagers. She stated the following:

9 … Anger and correction are not mutually exclusive concepts. The anger factor was considered by Feldman J. in R. v. T.I., [2003] O.J. No. 5940 (Ont. C.J.), where she (he) relied on R. v. Peterson, [1995] O.J. No. 1366 (Ont. Ct. Prov. Div) at p. 15:

"it is unrealistic to assume that parents discipline their children, whatever the nature of the infraction, in a state of detached calm. Anger is part and parcel of correction of the child. What is relevant is not whether the parent is upset, distraught, frustrated, annoyed or angry, but whether the parent is in control of his or her anger or emotions".

15 Canadian Foundations does not stand for the proposition that parents or the authorities are prohibited from restraining an unruly teen where reasonable. The concept of correction envisaged in s. 43 is broader than spanking or corporal punishment. Correction is not limited to corporal punishment and may include corrective restraint…

17 The Supreme Court of Canada did not grant immunity to teenagers for bad behaviour or an exemption to parents from the crime of assault. It offered support for authorities and families by striking a careful balance between the rights of children to be protected and the responsibilities of parents or authorities to provide correction and discipline.

[21] In this case what the trial judge did not do was to consider the defence that the accused raised. The accused did not testify that he took hold of Angel for the purpose of punishing her, which is what the trial judge seems to have found. His position was that he was attempting to take hold of Angel when she was being profane in front of Sierra and Savannah. He was attempting to exclude her from the house to give her an opportunity to cool off. This would give her an opportunity to think about her behaviour, which was unacceptable. The trial judge did not apply the well known test in R. W. (D.), 1991 93 (SCC), 1991 1 S.C.R. 742 at para. 28 to determine if the appellant’s evidence, standing alone or in the context of all the evidence, raised a reasonable doubt.

Result

[22] The family is in turmoil. The accused was out of the house pursuant to his bail terms for over one year. This caused much hardship in the family, which Camilla pointed out in a letter dated August 8, 2011. The appellant also took anger management counselling and with Camilla, family counselling, as confirmed by the letter dated October 21, 2011 from Carl Naraine of The Anger Management and Conflict Resolution Centre of Brampton. These letters were filed in the sentence hearing. They seemed to have been composed in support of an application to vary the appellant’s bail conditions, which seems never to have happened.

[23] It would not be in the public interest to order a new trial. The appellant is acquitted on both charges. Given the outcome, there is no need to address the sentence appeal.

Justice P.B. Hambly

Released: November 18, 2013

COURT FILE NO.: SCA(P) 2331/12

DATE: 2013-11-18

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

LEE THOMPSON

REASONS FOR JUDGMENT

Justice P.B. Hambly

Released: November 18, 2013