Court File and Parties
Oshawa Court File No.: CR-22-15784-00AP Date: 2023-04-17 Ontario Superior Court of Justice
Between: His Majesty The King – and – B.V. Appellant
Counsel: Oliver Fitzgerald, for the Crown/Respondent Mark Halfyard, for the Appellant
Heard: October 28, 2022
Reasons for Decision
McKelvey J.
Introduction
[1] On November 17, 2020, the Appellant was at home with his three children, A., age 15, B., age 11 and C., age 9. The children were coming to the end of their online school day. The Appellant was working remotely from home. An incident occurred where the Appellant put his hand or hands under A.’s chin and said something to the effect of “listen here”. He also demanded that A. surrender her cellphone to him. Instead, A. moved away from her father and ran to the upstairs bathroom where she locked herself inside and called 911. The police responded. Mr. B.V. was ultimately charged with assaulting A.
[2] Following a two day trial, the Appellant was convicted of assault and sentenced to a 45 day intermittent jail sentence. He is currently released on bail pending this appeal.
[3] The Appellant has raised three grounds of appeal. First, he submits that the trial judge wrongly put the burden on the defence to establish that the complainant had a motive to fabricate. Second, it is asserted that the trial judge erred in finding that this was not a de minimis application of force. Third, the Appellant argues that a proper application of the corrective force by a parent against a child pursuant to s. 43 of the Criminal Code is a defence to the charge.
[4] For the reasons which follow I have concluded that the appeal should be dismissed. I will deal initially with the second and third grounds raised by the Appellant, followed by a consideration of the first ground of appeal.
Did the trial judge err in finding that this was not a de minimis application of force?
[5] The Appellant argued that the trial judge erred by finding that the assault was not de minimis. The Appellant submits that the conduct in issue was so trivial so as not to pose any risk to the public interest. The Appellant relies on the comments of Justice Doherty J.A. in R. v. Murdock, where he states,
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.
[6] In providing some principles as to how this doctrine should be implemented, Justice Doherty at para. 33 of the decision comments as follows:
It is not for the judiciary under the guise of applying the harm principle as a principle of fundamental justice to choose from among the competing theories of harm advanced by criminal law theorists. The harm principle, as a principle of fundamental justice, goes only so far as to preclude the criminalization of conduct for which there is no “reasoned apprehension of harm” to any legitimate personal or societal interest. If conduct clears that threshold, it cannot be said that criminalization of such conduct raises the spectre of convicting someone who has not done anything wrong. Difficult questions such as whether the harm justifies the imposition of a criminal prohibition or whether the criminal law is the best way to address the harm are policy questions that are beyond the constitutional competence of the judiciary and the institutional competence of the criminal law adversarial process.
[7] The Appellant correctly notes that the determination of whether something is “de minimis” is a question of law, reviewable on the standard of correctness. In other words, the court on appeal does not defer to the trial judge’s legal determination that this was not trivial and determines the correctness of that determination, without applying the normal deference. See R. v. Kubassek, at para. 16. I must still, however, defer to the trial judge with respect to his findings of fact.
[8] In the present case, the Appellant argues that the assault, a momentary touching of the complainant’s face by the Appellant, caused no injury, left no mark and caused no pain. The Appellant states that he grabbed his daughter’s jawline and held it at most for a minute while they were in a dispute about her yelling at him. She refused to go back upstairs and surrender her phone. While it was an assault in law, it is argued that it was so minor that this should not have amounted to a criminal offence. The trial judge accepted that “the touching was not inherently violent”, yet the trial judge seems to suggest that this contact was in the context of an inter-familial setting and that the doctrine therefore did not apply. The Appellant argues that the de minimis principles ought to be applied in this case, which would justify a dismissal of the charge.
[9] In his Reasons, the trial judge concluded that the de minimis doctrine had no application in the circumstances of this case. He stated as follows:
Courts across Canada have recognised that there should be a very low harm threshold to defeat the application of the de minimis doctrine in the context of alleged domestic assaults. In other words, courts have held that it will be a rare case where conduct which meets the Criminal Code definition of assault will otherwise qualify for a de minimis characterization when the allegation involves inter-familial aggression.
Indeed, given the availability of the defence of corrective force which is afforded to parents by Section 43 of the Code, there is much less need for the de minimis doctrine to serve as a bulwark against any perceived overreach of the criminal law in the context of a parent’s application of force to their children.
In this case, the defendant’s assaultive behaviour admittedly involved a brief touching of the lower part of [A.]’s face in a manner which did not cause her any pain nor leave any marks. Nevertheless, it cannot be ignored that the defendant was [A.]’s father. Any use of force by parents upon their children raises societal concerns.
Moreover, while the touching itself was not inherently violent, it occurred in the midst of an angry verbal onslaught, which included the defendant’s repeated use of profanity. [A.]’s evidence made clear that she was very intimidated by the entire episode, so much so that she immediately ran upstairs and locked herself in the bathroom for her own safety. When considered in the overall context of the defendant’s behaviour leading up to the assault, his forcible grabbing of [A.]’s face cannot be characterised as harmless, or as constituting the actions of someone did not do anything wrong. As I’ve said, the de minimis doctrine has no application to the facts of this case.
[10] I agree with the trial judge’s reasoning that the de minimis principle does not raise a viable defence in this case based on his findings of fact.
[11] In the Kubassek decision, the Ontario Court of Appeal dealt with a situation where a church minister was conducting a wedding. The accused objected to the wedding on the basis that the two individuals were of the same sex. The accused went to the front of the church, turned around and began to address the congregation. The minister then went around her, faced her with his back to the congregation and asked her to stop. In response, she pushed or shoved him with her right hand. As a result the minister almost tripped and fell backwards. He almost fell over a pew that was two or three feet behind him. He did not fall, however, and he was not injured in the incident. A security officer then escorted the accused out of the church. In the Kubassek case, the court noted that the accused’s conduct was not trivial. The court considered “both the assault itself and the context in which it took place”. This case highlights the importance of context in considering the de minimis doctrine.
[12] In the present case, the context of the alleged assault is of considerable significance. The trial judge found as a fact that the Appellant’s assault occurred “in the midst of an angry verbal onslaught, which included the defendant’s repeated use of profanity”. He also found as a fact that A. was very intimidated by the entire episode, so much so that she immediately ran upstairs and locked herself in the bathroom for her own safety.
[13] It is apparent, therefore, that the injury to the child was not limited to the physical aspect of the assault. It is also clear that there was a significant psychological injury as well which caused the complainant to fear for her safety.
[14] The Supreme Court of Canada decision in R. v. Friesen, 2020 SCC 9, dealt with a case of sexual violence. Nevertheless, the court’s initial comments in its decision are important. The court states that,
Children are the future of our country and our communities. They are also some of the most vulnerable members of our society.
[15] In my view the facts in this case are at least as serious as those in the Kubassek decision, where the court took into account all of the circumstances in which the assault took place. As noted by the court in that case, the context in which the assault took place are very important. The court stated,
Although he suffered no injury, he did fall backwards and almost tripped over a pew that was behind him. It is instructive to recall the circumstances in which the assault took place. The respondent chose to come to Metropolitan Community Church that Sunday morning. She chose to come to the front of the church for a purpose unconnected with the invitation extended to the congregation. She chose to deliver a message that she knew would fall on unreceptive ears. She chose to ignore the request of the senior pastor of the church not to interrupt the service. She chose to push or shove him to the side so that she could finish what she had to say. That he tripped, but did not fall or suffer injury, was purely fortuitous. She could fully have expected (as the trial judge found) that to go up to the front and preach to the congregants in terms she knew would be offensive could cause a disturbance. Against this backdrop, the push or shove that she intentionally applied to Rev. Hawkes cannot appropriately be characterized as an “irregularit[y] of very slight consequence … a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest”. To minimize the assault by ascribing to it the designation “trifling” or “trivial” is to ignore the realities of what transpired between Ms. Kubassek and Rev. Hawkes that Sunday morning.
[16] For the above reasons, I have concluded that the de minimis principle does not afford a defence to the Appellant in this case. The conduct which supported the conviction was not so trivial as to pose no risk to the personal interest of the complainant or to the public interest.
Did the trial judge err that this was not a proper corrective force under s. 43 of the Criminal Code?
[17] Section 43 of the Criminal Code provides 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.
[18] The Appellant argues that it cannot be concluded beyond a reasonable doubt that the only reasonable inference from the circumstantial evidence was that this alleged assault was not for an educational or corrective purpose. The Appellant further argues that nor does the fact that the Appellant was upset, or even angry, mean that his purpose was not educational or corrective. The Appellant therefore argues that in these circumstances, a conviction cannot follow and the verdict is unreasonable.
[19] In support of its position, the Appellant argues that the complainant could not speak to the Appellant’s state of mind. The Appellant further argues,
All she could say was that he came at her, after she intervened when [C.] hit the stereo equipment, and he was very upset. All the witnesses said the touching was very brief and was accompanied by the Appellant asking her to “look at him” and “listen to him.” The Appellant’s state of mind had to be deduced from the surrounding circumstances. It was based exclusively on circumstantial evidence.
[20] In contrast, the decision of the trial judge on the applicability of s. 43 was as follows,
I am also satisfied that the Crown has proven beyond a reasonable doubt that Mr. B.V.’s grabbing of [A.]’s face was not justified by the corrective force defence afforded by Section 43 of the Code. As the Supreme Court of Canada explained in Canadian Foundation for Children, Youth and in the Law, there are two components to the Section 43 defence. First, there must be evidence capable of raising a reasonable doubt that the force was administered for corrective purposes. The court held that the statutory defence “cannot exculpate outbursts of violence against a child motivated by anger or animated by frustration.” Second, the section requires that the force used must have been reasonable in the circumstances. In that regard, the Supreme Court of Canada held that reasonable corrective force will only be justified by Section 43 in limited circumstances.
Given my acceptance of the evidence of both [A.] and [C.], I need not address the issue of the “reasonableness” of the force that was used by the defendant, as I am satisfied that it was not for corrective purposes. The evidence firmly shows that Mr. B.V. grabbed [A.]’s face while he was in the midst of an angry fit. Both [A.] and [C.] described how Mr. B.V.’s anger was triggered by [C.] having knocked over the expensive electronic equipment, but then was redirected at [A.] when she tried to verbally intervene to stop her father from hurling verbal abuse at [C.] I infer that the same anger which was motivating Mr. B.V. to curse and swear at his nine-year-old daughter, and then at his adolescent daughter, was what also motivated him to grab [A.]’s face. Nothing in the evidence before me leaves me with a reasonable doubt that the force applied by Mr. B.V. to [A.]’s face was for a corrective purpose. The Section 43 defence fails for that reason alone.
[21] The Appellant argues that the complainant could not speak to the Appellant’s state of mind. However, in her evidence, A. testified as follows:
Q. Okay. Okay. So, can you tell the court what, if anything, happened that day that, that started this incident?
A. What happened was my sister was running down the hallway from, by the front door down into the living room and she had tripped on the stereo that was under the TV stand and she tripped and fell, which aggravated my father.
Q. Okay. When you say aggravated your father, what do you mean by that?
A. It just made him upset.
Q. How did you know he was upset?
A. He started to raise his voice.
Q. Do you remember what he was saying?
A. No. I don’t remember. Sorry.
Q. That’s okay. Okay. So, so, [C.] tripped and fell and you said it aggravated your dad. What happened next?
A. She had, after she had fallen, my dad had gotten up, gotten mad at her because she was running in the house and he had pushed her with his leg into the couch.
Q. Okay. Can you describe how he did that? Or let’s start with when your dad used his leg to do that, was [C.] standing or was she sitting?
A. She was sitting.
Q. Did you see your dad use his leg to do that?
A. Very briefly, yes.
Q. Okay. And can you just describe what he did with his leg?
A. He just kind of pressed [C.]’s, like, not pressed [C.]’s body, but he pressed his leg against [C.]’s body and pushed her with it into the couch, with his shin.
Q. Okay. And did [C.] react at all?
A. Not that I saw. No.
Q. Okay. So, what happens next?
A. I started yelling at my father from the hallway.
Q. Okay.
A. Which he got upset at me for.
Q. And what were you yelling? Do you remember?
A. No. Sorry.
Q. Okay. Do you remember why you were yelling?
A. Yes, because he had pushed [C.] into the couch, which I felt was uncalled for.
Q. Okay. What happened next?
A. After I started yelling at my father, he came running down the hallway at me and had grabbed my face.
[22] C., the complainant’s sister, also gave evidence at the trial. Initially her audio-video statement to police was played into evidence. She testified as follows:
[C.]: He just, just started cussing.
D.C. MCCONNELL: Yeah.
[C.]: He said the ‘F’ word.
D.C. MCCONNELL: Mm-hmm.
[C.]: And he kept calling my sister the, the ‘C’ word.
D.C. MCCONNELL: Oh, boy.
[C.]: He was saying, “You’re a fucking [INDICATES].” Well, he just kept saying, “You’re a ‘F’ [INDISCERNIBLE]”
[23] While the Appellant argued that the trial judge’s conclusions were only based on circumstantial evidence, the evidence at trial was direct evidence of the Appellant’s state of mind at the time of the incident. As noted in the Supreme Court of Canada decision in R. v. Graat, [1982] 2 SCR 819, at para. 46, the list of subjects upon which a non expert witness is allowed to give opinion evidence is a lengthy one and includes the emotional state of a person, including whether that person is distressed, angry, aggressive, affectionate or depressed.
[24] As also noted by the Supreme Court of Canada in the decision Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, which was referenced by the trial judge, the force used under this exception must be for an “educative or corrective” purpose. The court goes on to note that, “Accordingly, s. 43 cannot exculpate outbursts of violence against a child motivated by anger or animated by frustration”. The court also emphasizes that the purpose of the force must always be the education or discipline of the child.
[25] There is no basis to interfere with the judge’s finding of fact that the actions taken by the Appellant were not corrective in nature and therefore the provision of s. 43 did not offer a defence to the charge.
[26] Specifically, the trial judge found as a fact that the Appellant’s application of force was not for corrective purposes. There was evidence to support this finding and the trial judge’s finding of fact on this issue is entitled to deference.
Did the trial judge improperly place a burden on the defence to provide motive to fabricate?
[27] This ground of appeal is based on a statement by the trial judge in his decision where he stated as follows:
The defence highlighted two potential motives for [A.] to have fabricated her allegation that she was assaulted by her father. First, there was evidence that [A.] had been told by her father that she had to remain in her room until the school day was over. Instead, [A.] had come downstairs shortly before the altercation to get herself some hot chocolate. The defence theory was that [A.] had become so disgruntled from having been ordered by her father to stay in her room that she retaliated by calling the police. The second conceived motive to fabricate related to the tension which had supposedly developed between [A.] and her father concerning his negative reaction towards her recent revelation that she had begun to identify as a transgendered individual.
While the “burden” on the defence to establish a viable motive to fabricate is very low, there must still be some air of reality to an alleged motive, and a rational connection between that potential motive and the witness’s decision to fabricate a criminal allegation. In this case, neither of the two potential motives explain why [A.] would have decided on this particular day to call the police and to falsely report that her father had assaulted her. Moreover, in the context of all the evidence, I am readily satisfied that [A.]’s decision to call the police was not motivated by any overarching animus towards her father, but rather by what had just transpired in the downstairs hallway moments earlier.
[28] This section of the trial judge’s decision is open to two interpretations. What is not clear is when the trial judge says the “burden” is on the defence to establish a viable motive to fabricate, is this is a reference to the fact that if a court finds that the complainant has a motive to fabricate her evidence, it will likely raise a reasonable doubt about the guilt of the accused. Or alternatively, is the trial judge saying that the defence has a burden to establish a viable motive to fabricate before it will be considered by a court.
[29] If the latter interpretation is accepted then the trial judge, in my view, fell into error. In the Ontario Court of Appeal decision in R. v. S.S.S., 2021 ONCA 552, Justice Feldman states at para. 38,
Not only is there no burden on an accused to prove a motive to fabricate, there is equally no burden on an accused to disprove that the complainant had no motive to fabricate.
[30] The Crown’s position is that any ambiguity in the trial judge’s reasons regarding motive to fabricate did not occasion a substantial wrong or a miscarriage of justice. It was harmless and a curative proviso should readily be applied pursuant to s. 686(1)(b)(iii) of the Criminal Code according to the Crown.
[31] In R. v. Samaniego, 2022 SCC 9, the Supreme Court of Canada commented on the provisions of the curative proviso set out in s. 686(1)(b)(iii) of the Criminal Code. The Court states as follows at para. 65,
The curative proviso set out in s. 686(1)(b)(iii) of the Criminal Code allows a court of appeal to dismiss an appeal from conviction where “no substantial wrong or miscarriage of justice has occurred”. The Crown may rely on the curative proviso where the error is harmless or trivial or where the evidence is so overwhelming that a conviction was inevitable.
[32] In the present case, the Crown argues that the error occasioned no harm to the Appellant. I note at the outset that the issue of an alleged motive to fabricate was raised by the accused in his defence to the charge. This was, therefore, an issue that the trial judge was required to address in his reasons. The trial judge found as a fact that he was satisfied that A.’s decision to call the police was not motivated by any overarching animus towards her father and that the alleged motives to fabricate did not lead him to have any doubts about the credibility of A.’s evidence. He later comments that the evidence of C., the complainant’s sister helped persuade him that the complainant did not concoct the allegations against the accused. On this issue, therefore, the trial judge was simply responding to the defence’s assertion that the complainant had a motive to fabricate evidence. It does not appear, therefore, that the allegation of a burden on the defendant to establish a viable motive to fabricate had any bearing on the outcome of the trial. The trial judge dismissed this allegation based on his findings which were in turn based on the evidence at trial.
[33] The trial judge separately dealt with the issue of A.’s credibility. He did not suggest at any time that A.’s credibility was enhanced by the lack of any motive to fabricate. In fact, his findings with respect to the credibility of A. are set out prior to his consideration of the allegation that A. had a motive to fabricate her evidence.
[34] In the S.S.S. decision, the court found that the trial judge’s error required a new trial because the trial judge took the finding of no evidence of a motive to fabricate into consideration in concluding that the complainant must be telling the truth and determining that she believed the complainant beyond a reasonable doubt. The court contrasted the scenario in S.S.S. with their decision in R. v. Ignacio, 2021 ONCA 69. In Ignacio, the defence took the position at trial that the complainant had a motive to fabricate because she feared that she had become pregnant from her sexual encounter with the accused and needed a way to explain the pregnancy to her parents in order to absolve herself from any responsibility. The court found in that case that in responding to the defence submission that the complainant had a motive to fabricate, the trial judge had not made a finding of no motive to fabricate, but simply determined there was no evidence of a motive to fabricate. The court then found, as a matter of law, that the trial judge was entitled to consider the absence of evidence of motive to fabricate as a factor in assessing the credibility of the complainant. Ignacio was distinguished from the S.S.S. case on the basis that the issue of motive to fabricate was raised by the defence and therefore had to be addressed by the trial judge, whereas in the S.S.S. case, the issue was not raised by the defence. Consequently, in Ignacio, the court did not have to consider the risk of the onus being reversed in situations where the issue is not raised by the defence.
[35] It is also significant that the trial judge in this case was well aware of the requirement for the Crown to prove its case beyond a reasonable doubt. Near the start of his decision, the trial judge states as follows,
The fact that Mr. B.V. chose to not testify is entirely irrelevant to my decision in this case. He was presumed innocent from the point when the trial first started, meaning that the Crown bore the burden of proving his guilt. To be clear, it was not enough for the evidence to have shown that Mr. B.V. probably committed the offence. The presumption of innocence to which Mr. B.V. was entitled could only be displaced if or when the Crown had proven beyond a reasonable doubt that he committed the criminal offence with which he had been charged.
[36] It is clear from the above comments that the trial judge was well aware that the burden of proving the Appellant’s guilt rested solely with the Crown and that this burden never shifted.
[37] I am satisfied that the trial judge’s error with respect to there being a burden on the defence to establish a viable motive to fabricate did not affect the trial judge’s detailed findings of credibility of the complainant. While the trial judge did not accept that the complainant had fabricated her evidence as a result of any animus towards her father, he did not use this as a basis to enhance his finding of credibility in favour of the complainant or otherwise use it to the detriment of the accused. For this reason, I am persuaded that any error by the trial judge on this issue was harmless and did not affect the outcome of the trial. No miscarriage of justice has occurred as a result of the error. I therefore conclude that this ground of appeal should be dismissed.
Conclusion
[38] For the above reasons, I have concluded that the appeal in its entirety should be dismissed. The stay of the Appellant’s sentence is lifted and he is now required to begin serving his sentence.
Justice M. McKelvey
Released: April 17, 2023