Court File and Parties

Court File No.: CR-23-0062-AP Date: 2024-10-02 Ontario Superior Court of Justice

Between: His Majesty The King, Respondent – and – Christopher Hunt, Appellant

Counsel: Mohsin Warsi, for the Crown, Respondent Mark C. Halfyard, for the Appellant

Heard: August 9, 2024

Decision on Summary Conviction Appeal S.K. Stothart J.

Overview

[1] On May 3, 2023, Justice G. Maille found the appellant guilty of assaulting his daughter H.H. following a trial. The appellant was sentenced to a suspended sentence with 18 months of probation. The appellant appeals against both the conviction and the sentence.

[2] The appellant submits that the trial judge erred in his analysis with respect to whether the corrective force applied to his daughter was reasonable. The appellant further submits that the trial judge erred in finding that a discharge was not appropriate in the circumstances because it did not address the principle of deterrence.

[3] For the reasons that follow, I dismiss the appeals.

Facts

[4] The appellant was originally charged in a ten-count information. By the time the trial concluded, there were only five counts remaining. Of those counts, the appellant was acquitted of four counts, and convicted of one count of assault committed against his daughter, H.H.

[5] The trial was fairly short. The Crown called the appellant’s former spouse L.H. and tendered photographic evidence. The appellant testified on his own defence.

[6] The trial judge accepted the evidence of L.H. and found beyond a reasonable doubt that the appellant grabbed and squeezed his daughter H.H.’s left arm at the dinner table as a result of her misbehaving. L.H. described the appellant grabbing and squeezing his young daughter’s arm with sufficient force that his arm was shaking. L.H. observed bruising on H.H.’s left arm the next day and a photograph of the bruising was tendered as an exhibit at trial. H.H. was three years old at the time.

[7] The trial judge found that while the appellant was frustrated with his daughter’s behaviour, he could not be satisfied beyond a reasonable doubt that the appellant acted out of frustration at the time he grabbed and squeezed the child’s arm.

[8] In his reasons, the trial judge acknowledged that s. 43 of the Criminal Code, RSC, 1985 c. C-46, provides a defence to parents for using force by way of correction towards a child under their care if the force is reasonable under the circumstances.

[9] The trial judge went on to consider the Supreme Court of Canada’s guidance in Canadian Foundation for Children, Youth and the Law v. Canada with respect to what may be considered “reasonable” in the circumstances. The trial referred specifically, the Supreme Court’s finding that “Section 43 exempts from criminal sanction, only minor corrective force of a transitory or trifling nature”: Canadian Foundation for Children, Youth and the Law v. Canada 2004 SCC 4 at para. 40.

[10] Ultimately the trial judge concluded that he was satisfied beyond a reasonable doubt that the force used by the appellant against his daughter in this case was not minor corrective force of a transitory or nature. Having reached this conclusion, the appellant was convicted.

Principles of Law

The standard of review

[11] It is well established that under s. 686(1)(a) of the Criminal Code there are three possible bases upon which an appeal may be allowed. They are:

(a) The verdict is unreasonable or cannot be supported by the evidence;

(b) There was a wrong decision made on a question of law; and

(c) There has been a miscarriage of justice.

[12] The jurisdiction of a summary conviction appeal court to review a trial judge’s findings of fact is very limited. A summary conviction appeal judge is not entitled to retry the case nor is a summary conviction appeal judge entitled to substitute his/her own view of the evidence for that of the trial judge. A summary conviction appeal judge has no basis upon which to interfere with the trial judge’s findings unless they are unreasonable or they are not supported by the evidence: R. v. Smit, 2012 ONCA 524 at para. 67.

[13] The factual findings of a trial judge are entitled to deference. An appellate court can only interfere with such findings where there has been a palpable and overriding error. Findings of fact and factual inferences must be clearly wrong, unsupported by the evidence or otherwise unreasonable before an appellate court may interfere: R. v. Clark, 2005 SCC 2 at para. 9; R. v. Sheahan, 2017 ONCA 159 at para. 12

Unreasonable Verdict

[14] A verdict is reasonable if it is one that a properly instructed jury acting judicially could reasonably have rendered. The question when determining whether a verdict is unreasonable is not whether the evidence leaves the appellate court with a reasonable doubt or whether another trial judge may have had a reasonable doubt on the same evidence. Rather the question on appeal is whether the trial judge in this case could have reasonably been satisfied that the accused’s guilt was the only reasonable conclusion on all the evidence: R. v. Villaroman, at para. 55; R v. Couterielle, 2017 ABCA 409 at para. 15.

Sentence appeal

[15] Appellate courts cannot interfere with sentencing decisions lightly. Sentencing judges are to be afforded wide latitude and their decisions are entitled to a high level of deference on appeal: R. v. Parranto, 2021 SCC 456 at para. 29.

[16] Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, an appellate court should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit: R. v. Proulx, 2000 SCC 5 at para.123; R. v. Parranto, at para. 36.

Analysis

Conviction appeal

[17] The appellant submits that the trial judge erred in law by concluding that s. 43 of the Criminal Code (corrective force) could not apply in this case based on the nature of the bruising observed on H.H.’s arm the next day.

[18] I am not satisfied that the trial judge found that the mere presence of bruising precluded the application of s. 43 in this case. The trial judge’s conclusion, which followed an extensive analysis of the evidence at trial, was as follows:

However, given all of the circumstances before me, I am satisfied beyond a reasonable doubt that the accused squeezing [H.H.’s] arm hard enough to result in some bruising exceeds force that was reasonable under the circumstances of Section 43 of the Criminal Code. The force used was not a minor corrective force of a transitory or trifling nature.

[19] In Canadian Foundation for Children, Youth and the Law v. Canada, the Supreme Court found that the application of s. 43 is limited to the mildest forms of assault. It can only be invoked in circumstances where the non-consensual application of force results neither in harm nor in the prospect of bodily harm. It applies only to minor corrective force of a transitory or trifling nature: Canadian Foundation for Children, Youth and the Law v. Canada, at para. 30.

[20] Whether corrective force is reasonable is necessarily contextual. A court will look at various factors including, the age of the child, the nature and duration of the force applied, the frequency of the force, and the physical and mental effect of the force on the child. What is reasonable in the circumstances is not defined by what caregivers or judges subjectively believe to be reasonable, but rather by an objective appraisal based on current learning and consensus, recognizing that social mores may evolve and change over time: R. v. E.(M), 2011 ONSC 571 at para. 204.

[21] The evidence at trial was that H.H. was only three years old. She was a small child, and her father was a grown man. The appellant was observed grabbing H.H.’s arm with sufficient force that his arm was shaking. The following day, H.H. had bruising on her left arm.

[22] The trial judge did not say that because H.H. had bruising on her arm, s. 43 of the Criminal Code was not available. Rather, the trial judge found that, having considered all of the circumstances before him, he was satisfied beyond a reasonable doubt that the appellant’s actions were not a minor corrective force of a transitory or trifling nature. This was a conclusion that was available to the trial judge based on the evidence before him. All of the circumstances included the fact that H.H. suffered bruising to her arm.

[23] The appellant relies on a number of authorities where trial judges found, in the circumstances of those cases, that grabbing a child or spanking a child was not an unreasonable use of corrective force, even where the child suffered bruises: R. v. Catellier, 2011 MBQB 77; R. v. A.(M.), 2011 ONSCJ 91; R. v. Boyd, 2004 ABPC 125; R. v. C.G., 2009 ABPC 25.

[24] I do not find the decisions cited by the appellant to be helpful on this appeal. Each of those cases turned on findings of fact made by those judges who heard the evidence at those trials.

[25] In this case, there is no issue that the trial judge correctly set out the law to be applied, as set out in Canadian Foundation for Children, Youth and the Law v. Canada. In applying the law, and having considered all of the circumstances before him, he was satisfied that the force applied to H.H. was not reasonable. This was a finding open to the trial judge and it is entitled to deference on appeal.

Sentence appeal

[26] The appellant does not submit that the sentence imposed by the trial judge was unfit. Rather, he submits that the trial judge erred “in principle” by failing to acknowledge that there is “no significant difference in terms of deterrence and denunciation” between a suspended sentence and a discharge. The appellant submits that this error in principle warrants this court applying the principles of sentencing afresh to the facts, without deference to the existing sentence, even if that sentence fell within the applicable range: R. v. Lacasse, 2015 SCC 64 at paras. 43-44, 51; R. v. Friesen, 2020 SCC 9 at para. 27.

[27] In support of the appellant’s submission, the appellant relies on R. v. Peras, 2016 ONSC 2800 in which Justice Hill stated that “a suspended sentence is not necessarily a greater deterrent to others than a conditional discharge”.

[28] I do not accept the appellant’s position that Justice Hill’s statement in Peras created a sentencing principle that there is no significant difference in terms of deterrence and denunciation between a suspended sentence and a discharge.

[29] This submission ignores the words used by Justice Hill, which were that a suspended sentence is not “necessarily” a greater deterrent to others than a conditional sentence. The use of the word “necessarily” recognizes that sentencing is an individualized process that focuses on a specific offender, a specific offence, a specific set of circumstances, and the application of sentencing principles both at common law and as set out in the Criminal Code.

[30] A suspended sentence and a discharge are not the same thing. Section 730 of the Criminal Code sets out the statutory terms under which a conditional or absolute discharge may be granted. A discharge is not available for certain types of serious offences. It is only available where the sentencing judge considers it to be in the best interests of the accused and not contrary to public interest.

[31] There are recognized differences between a discharge and a suspended sentence. The most significant difference is that an offender does not receive a criminal conviction if they are discharged. This can have a significant impact on an offender’s life, including their employment, volunteer opportunities, and the ability to travel abroad. For some individuals, in some circumstances, the prospect of a criminal conviction and its consequences may indeed be a deterrent to criminal behaviour. Further, depending on the circumstances of the offender and the nature of the offence, a court may conclude that the imposition of a discharge does not reflect the need to denounce the accused’s conduct.

[32] The task of a sentencing judge is to impose a just sentence tailored to the individual offender and the specific offence in accordance with the principles laid out in Part XXIII of the Criminal Code: R. v. Morris, 2021 ONCA 680 at para. 13.

[33] In his reasons for sentence, the trial judge set out the personal circumstances of the appellant and the mitigating and aggravating circumstances surrounding the commission of the offence. The trial judge correctly turned his mind to s. 718.01 of the Criminal Code which requires courts to give primary consideration to the objectives of denunciation and deterrence in cases involving the abuse of a person under the age of 18 years. The trial judge went on to recognize that other sentencing objectives, including rehabilitation, may also be accorded significant weight, but those factors could not overwhelm or be elevated about the primary sentencing objectives of denunciation and deterrence.

[34] After engaging in this analysis, the trial judge concluded:

Despite the important mitigating factors here, I conclude that, given the aggravating factors and the provisions of s.718.01, a discharge would be contrary to the public interest.

In my view, a discharge would be inadequate in these particular circumstances to meet the primary objectives of denunciation and deterrence, specifically in this case, general deterrence.

[35] The trial judge did not say that a discharge could never be in the public interest and could never address the principles of deterrence and denunciation. The trial judge found that a discharge was not in the public interest given the circumstances of this case, having regard to the aggravating factors and provisions of s. 718.01. This was not an error in principle, warranting a re-consideration of sentence.

[36] Even if I were to find that the trial judge erred in principle and I were asked to re-visit whether a discharge was appropriate, I would have reached the same conclusion in this case. The sentencing took place after a contested trial. There was no mitigating early plea of guilt. The offence involved the application of unreasonable force to a small 3-year-old child by her father, in her home, resulting in bruises. I agree that it would not be in the public interest to grant the appellant a discharge.

[37] For these reasons, the appeals against conviction and sentence are dismissed.

The Honourable Mr. Justice S.K. Stothart Released: October 2, 2024