Citation: ☼ R. v. S.H.

2018 BCPC 105

Date: ☼20180419
File No: 52049
Registry: Vernon

2018 BCPC 105 (CanLII)

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

REGINA

v.

S.H.

ORAL REASONS FOR JUDGMENT

OF THE
HONOURABLE JUDGE R. HEWSON

Counsel for the Crown: Margaret Cissel

Counsel for the Defendant: Courtney Simmons
Place of Hearing: Vernon, B.C.
Dates of Hearing: November 23, 2017, February 8, April 3, 2018
Date of Judgment: April 19, 2018
R. v. S.H. Page 1

[1] The accused is charged with assaulting her son, C. C. was eight years old at the

time. She claims that the assault was justified under section 43 of the Criminal Code,

which permits a parent to use force by way of correction toward a child if the force does

2018 BCPC 105 (CanLII)

not exceed what is reasonable in the circumstances. In the alternative, she claims that

she acted in self-defence, under section 34 of the Criminal Code.

[2] Since a key element of both defences is whether the acts committed by S.H.

were reasonable in the circumstances, it follows that the assessment of the evidence,

including the credibility and reliability of the witnesses, are central issues in this case. I

will review the law that touches on those matters, before turning to an assessment of

the evidence to reach findings of fact. Applying the law to those facts will permit me to

reach a verdict.

[3] One question is paramount in this case, as in any criminal case. That question is

whether, on the whole of the evidence, I am left with a reasonable doubt about the guilt

of the accused. Since credibility is an important issue, I remind myself of the principles

set out by the Supreme Court of Canada in that Court’s decision in R. v. W.(D.), [1991]

1 SCR 742.

[4] The law of evidence permits me to believe all, part or none of the evidence of any

witness. There is no magic formula for deciding how much or how little to believe of a

witness’s testimony, or how much to rely on it in deciding a case.

[5] It helps to remember that what people say in court may be true, or for various

reasons it may be untrue. A witness may give truthful evidence about some parts of an

incident, and still give untruthful evidence about other parts. This can happen because
R. v. S.H. Page 2

of problems with observation, recall, bias or honesty. It may be untrue because the

witness was not in a position to make accurate and complete observations about the

event. It may be untrue because the witness is labouring with a poor or defective

2018 BCPC 105 (CanLII)

memory, and at the time of testifying is unable to completely or accurately recall the

event. It may be untrue because the witness is biased, and for some reason is inclined

to give evidence that is more favourable to one side than to the other. Finally, a witness

may give untruthful evidence because the witness is a liar, and determined to be

dishonest despite giving an oath, or affirming or promising to tell the truth.

[6] Detecting untrue evidence is difficult. The process of detection might start with a

consideration of the circumstances under which the observations were made. The

questions to ask might include whether the witness had a good opportunity to make

observations, and whether there was any interference or distractions. The questions

might also include the condition of the witness was when the observations were made,

including the witness’s age, sobriety and familiarity with the matter being observed.

[7] The process might then continue with a search for indications that the witness’s

recall was reliable. The consistency of the witness’s evidence internally with other parts

of the testimony of the same witness, or externally with other evidence that is accepted

as reliable, can be a good indicator that the witness’s recall is sound. How long has it

been since the incident was observed? If there is an inconsistency, is it about

something important, or is it about a minor detail? Is there an explanation for any

inconsistency, and does the explanation make sense?

[8] The age and maturity of a witness are circumstances which might raise concerns

about both the witness’s ability to observe and her ability to recall the details of an
R. v. S.H. Page 3

incident. A child may perceive the world differently from adults and may not be

complete and accurate when describing details such as time and place. There is no

requirement to find evidence that confirms or supports the testimony of a child, but

2018 BCPC 105 (CanLII)

where circumstances give rise to a concern about the child’s testimony, there might be

dangers in relying on the child’s evidence to convict without some evidence that could

confirm or support with the child says.

[9] The process might continue further with an examination of any bias that might be

present. Does the witness have any reason to give evidence that would favour one side

or the other? What was the witness’s manner when he or she testified? Did the

witness testify in a forthright manner when examined by the party that called her, and

then become evasive under cross-examination? It is important, though, to remember

that demeanor can be deceiving. Testifying in court is an uncommon experience, and

people react in different ways. It is also important to remember that, when the person

charged with a crime testifies, it cannot be assumed that they are biased and would give

untruthful evidence simply by virtue of their status as the accused. Assessing the

evidence that way would undermine the presumption of innocence.

[10] Finally, the evidence may be untruthful because the witness is dishonest. Many

of the tests of reliability or bias just mentioned might equally lead to an inference that

the witness was lying. The difference is a matter of intention.

[11] Let me turn to the evidence on the trial.

[12] C. is the son of S.H. and D.C. S.H. and D.C. are separated. C. lives primarily

with his father.

R. v. S.H. Page 4

[13] S.H. testified that she had been living in a facility in Kelowna, and had been

seeing C. on alternate weekends. C. suffers from occasional emotional dysregulation

and has behaviour patterns that make him extremely difficult to parent. While

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exercising parenting time with C. in Kelowna, the child had tantrums fairly regularly.

When this happened, S.H. would rely on the staff of the facility to assist her in bringing

him under control.

[14] On Sunday September 4, 2016, S.H. had been discharged or graduated out of

her program, and was living in Vernon. She took C. to the (redacted) on 27th Street.

They left the (redacted) part way through, because C. was misbehaving. S.H. and C.

went across the street to the (redacted). After a short time in the (redacted), C. started

asking for a toy. When S.H. refused to buy him the toy, C. began to have a tantrum.

S.H. and C. left the store, and began to walk down the street.

[15] They walked about three blocks. While they were walking, C.’s tantrum

continued. According to S.H., he was swearing at her, calling her names, and kicking

her in the ankles and lower leg. S.H. testified that she responded to C.’s tantrum by

wrapping her arms around him, in a manner that had previously been recommended to

her by her counsellors. C. continued to struggle, and the two of them fell on the ground.

S.H. testified that she straddled the child, with one knee on either side of him. She said

that she was using her bottom to hold down his legs, and holding her arms near the top

of his body. She said that after they had been in that position for a brief period of time,

she noticed some dog feces next to his head and warned him, “Look out, buddy. There

is some dog poop.” S.H. said that this made C. laugh, and that they got up and went

home. She said that at no time did C. suffer any injury to his ear.
R. v. S.H. Page 5

[16] The testimony of C. is slightly different. He admitted that he misbehaved that

morning. He said he got mad in the (redacted) because he wanted to buy a toy and his

mother would not let him. He said that his mother got mad and told him to stop it. C.

2018 BCPC 105 (CanLII)

said that his mother pushed him down and sat on top of him. According to C., she sat

on his chest. He said that he got out and started running, but his mother caught up to

him and tripped him so that he fell against a power pole. C. said that his head hit the

pole, and he hurt his ear. He said that he fell to the ground and she pushed his face

into some dog feces and he ate some of it. C. said that after that his mother sat on his

chest again.

[17] Following the incident, S.H. called D.C. to come and pick up their son. He said

that S.H. was agitated, and told him to take his son. She punctuated that demand with

a profane adjective. There is no need for me to repeat her language here, but I note

that it was entirely consistent with a high degree of frustration or anger toward the child.

She told him that C. would likely have bruises when he came to pick C. up. D.C.

responded quickly. He testified that he observed dirt on C.’s face, grass stains on his

shirt, scratch marks on his neck and shoulder, and a sliver or piece of grass on the back

of his neck. Over the next few days, according to D.C., a bruise developed on C.’s ear.

I could not clearly see a bruise in the photo marked as an exhibit. To the extent that

C.’s evidence was corroborated by external evidence, it was largely consistent with the

evidence of S.H. There is little or no corroboration of his evidence regarding the pole,

or the feces.

[18] D.C. took photographs immediately after C. got home. However, he did not

contact the police and report the incident until May 2017, over half a year later. He
R. v. S.H. Page 6

explained this delay by saying that he did not want to make a life-changing decision in

the heat of the moment. By the time that he reported the incident, his relationship with

S.H. was increasingly strained. His testimony raises obvious concerns about his bias.

2018 BCPC 105 (CanLII)

[19] B.S. testified for the defence. She had been in a relationship with D.C. for five

years until she separated from him at the end of August 2017. She went with D.C. and

C. to the police detachment for C. to provide a statement in May 2017. She said that,

as the three of them rode in the cab of the vehicle, D.C. made C. go over the story. She

said that the parts about S.H. smashing C.’s head into the pole and rubbing his face in

dog feces were parts that she had not heard from C. before. That raises further

concerns about the reliability of C.’s evidence.

[20] On the basis of that evidence, I make the following findings of fact. S.H. was

accustomed to getting help dealing with her son’s tantrums. The incident occurred on

one of the first parenting time visits she and C. had had together after she left the

facility, and was on her own. They were alone together. They left their (redacted) early,

and went to the (redacted). C. had a tantrum. They left the store and walked down the

sidewalk. S.H. was frustrated with C.’s behaviour. He was cursing at her, and kicking

her. She reacted by grabbing him, and they wrestled. In the course of that

engagement, they fell to the ground. S.H. straddled her son. I am not satisfied that C.’s

evidence of being tripped and striking his head on a pole is reliable. The evidence of

the injury to his ear is not corroborated with any clarity by the photograph, and D.C.’s

evidence on this point is tainted by bias. I am satisfied there was dog feces on the

ground near C.’s head, but any actual contact between the child and the dog feces is far

more likely to have occurred by accident than as a result of S.H. deliberately pushing
R. v. S.H. Page 7

her son’s face into the dog feces and making him eat it. His evidence with respect to

that specific part of the incident is uncorroborated, and seems more likely to be the

result of a child’s attempt to make sense of a sudden, unusual incident than an actual

2018 BCPC 105 (CanLII)

memory of what happened. I also reject S.H.’s evidence that C. laughed after she

warned him about the dog feces. There are a few reasonable reactions to finding dog

feces next to one’s head, but laughing is not one of them.

[21] The next step involves the application of the law to those findings of fact. The

first question is whether or not the defence of corrective force provided in section 43 of

the Criminal Code is available to S.H. Counsel both cited the decision of the Supreme

Court of Canada in Canadian Foundation for Children, Youth and the Law v. Canada

(Attorney General) 2004 SCC 4, and I am grateful to them for that. There are three

elements to the defence of corrective force. The Crown must prove that at least one of

those elements do not apply, and the Crown must prove that beyond a reasonable

doubt.

[22] The first element to the defence of corrective force is that the accused must be a

parent or a teacher of the child. That is established on this evidence, beyond a

reasonable doubt.

[23] The second element is that the force applied to the child be applied by way of

correction. The Supreme Court of Canada has said that the requirement that the force

be applied by way of correction means that it cannot apply to outbursts of violence

motivated by anger or animated by frustration: Canadian Foundation for Children,

supra, at para 24. In the case before me, I find that wrestling a child to the ground,

causing scrapes and bruises, and the profane language used to describe the child
R. v. S.H. Page 8

afterwards all satisfy me that this was force that was applied at a time when the

accused’s actions were animated by frustration, and not applied by way of correction.

[24] That finding is sufficient to remove the applicability of the defence of corrective

2018 BCPC 105 (CanLII)

force. However, out of an abundance of caution, I will address the third element of that

defence. That third element requires that the force used be reasonable under the

circumstances. While physically restraining a child throwing a tantrum might have been

reasonable, I am not satisfied that wrestling a child to the ground, resulting in bruises

and scratches is a reasonable exercise of corrective force. The act of physically

restraining a child by hugging him is an act animated by a concern for the child’s safety.

In contrast, the act of wrestling the child to the ground is an act animated by anger and

frustration.

[25] In the alternative, S.H. argued that the facts raise the defence of self-defence.

Since the Criminal Code was amended in March 2013, section 34 of the Code has set

out the preconditions for the defence of self-defence. S.H. is not required to prove that

she acted in self-defence. The Crown must prove beyond a reasonable doubt that she

did not.

[26] The defence of self-defence is available if three preconditions are present. The

first is that the accused believed on reasonable grounds that force was being used

against her. This condition is present, because C. was kicking his mother.

[27] The second precondition is that the accused committed the act in question for the

purpose of protecting herself from that use of force. The act in question was the act of

wrestling C. to the ground. S.H. testified that she did this in reaction to the child kicking

her, swearing at her and calling her names. Although her act had more than one
R. v. S.H. Page 9

purpose, the Crown has not proven beyond a reasonable doubt that she did not commit

the act in question for the purpose of protecting herself from being kicked.

[28] The third precondition is that the accused’s act was reasonable in the

2018 BCPC 105 (CanLII)

circumstances. In determining whether or not the act was reasonable, I must consider

the relevant circumstances of S.H., C. and the act itself. The Criminal Code sets out a

number of factors which might be considered, but I am not limited to the factors in the

Code.

[29] Some of the factors that seem relevant in the circumstances before me are:

1. The force used by C. was a kick in the ankle or lower calf, which is
a type of assault that is relatively painful and easily repeated.

2. This occurred on a sidewalk beside a busy street, where S.H. was

responsible for the child’s safety and where it would be
irresponsible to separate him from her.

3. S.H. was much larger and stronger than C., although probably not
as fast.

4. S.H. was C.’s mother, and in a position of trust, authority and

responsibility.

5. C. had a history of emotional dysregulation, and had experienced

tantrums in the past.

6. The force used by S.H., which consisted of wrestling the child to the
ground, was proportional to the force used by C., which was kicking
S.H. in the ankle or lower calf.

[30] The last point is the key. Wrestling the child to the ground, causing scrapes and

bruises, would not have been proportional had C. simply thrown a tantrum, without

kicking his mother. However, the law of assault does not make an exception requiring

parents to tolerate assaults by their children. A degree of force that would not be

reasonable by way of correction, might be reasonable in self-defense. In the

R. v. S.H. Page 10

circumstances of this case, I am not satisfied that the Crown has proven beyond a

reasonable doubt that it was not, and I find S.H. not guilty.

__________________________

2018 BCPC 105 (CanLII)

The Honourable R. Hewson

Provincial Court Judge