Editor's note: The following document, except for the names, is typed exactly as produced by the court reporter. The original had some confusion between inflicted and inflected. Any other spelling errors are introduced by Dufferin VOCA. The following fictitious names are substitutions by the editor: Bakker family surname John father Anne daughter Jeremy son Brian son Clark son -------------------------------------------------------- ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN against JOHN BAKKER R E A S O N S F O R J U D G M E N T BEFORE HIS HONOUR, JUSTICE V ROSEMAY, on July 11, 2002, at ORANGEVILLE, Ontario. * * * * * * CHARGES: S.266 C.C.C. S.267(a) C.C.C. * * * * * * APPEARANCES: L Marcon, Ms Counsel for the Crown R Allman, Esq Counsel for the Accused * * * * * * -------------------------------------------------------- ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S REASONS FOR JUDGMENT PUT IN ON PAGE 1 * * * * * * REASONS FOR JUDGMENT PUT IN ON PAGE 9 * * * * * * Transcript Ordered: July 26, 2002 Transcript Completed: July 28, 2002 Counsel Notified: July 31, 2002 * * * * * * -------------------------------------------------------- Regina v Bakker Thursday, July 11, 2002 R E A S O N S F O R J U D G M E N T ROSEMAY, Ont Crt J Yes, this is an application by defence for a non suit of counts two and three. Counts two and three are counts relating to allegations of assault with a weapon against Brian Bakker and Clark Bakker. The defence counsel's motion is two-fold, but for purposes of my decision I shall deal only with the second part of his motion, which is whether the evidence presented by the crown is evidence upon which a reasonable jury properly instructed could return a finding of guilt. Defence counsel takes a position that a defence to a charge of this nature lies under s.43 of the Criminal Code and in order for the crown to prove these charges the crown must satisfy the court that the factors that exist in s.43 are factors which do not rebound to the benefit of the defendant. Those factors are first, whether or not the defendant is a parent of the child. Defence points out clearly that is the case here. The second factor is whether the force was used for the purpose of discipline. Correction is the word used in the statute, and defence points out that clearly was the case here. And thirdly, whether the force used was reasonable in the circumstances, and defence points out it was reasonable in the circumstances. And for the crown's case to go further the crown must show that none of those factors could be used or adopted by the defence in support of his reliance upon s.43. In addition to the statutory defence, defence also relies on case laws. He relies on the case of Regina v Bell, a case of the Ontario Superior Court and also the case of Regina v Peterson, which is a spanking case, a case involving the spanking of a young child by the father publicly. Defence points out that it is clear in the evidence that all of the elements of s.43 are applicable to the defence. The crown prosecutor does not agree. The crown prosecutor takes a position that in this particular case the discipline was not administered for correction purposes, and she points out that there were three boys involved and the allegation is only one, or the assumption is only one of them committed the act. The act that is the subject matter for which the punishment was inflicted was urinating in a flower pot or a vase, and according to the testimony of Brian this came to light when the vase was accidentally turned over and the contents spilled out, and thus it became aware that somebody had been using this particular vase as a bathroom. The evidence is also clear that the defendant, upon being aware of this fact, called the three boys, who were the three oldest, and who were the likely persons who could have been using this particular flower pot as a bathroom and asked questions of them. He wanted them to own up which of the three had committed this act. He gave them five minutes to do so. After five minutes had gone by and there was no response the defendant then inflicted the punishment, as indicated. The evidence as to how the punishment was inflicted came from the three boys. The oldest girl, Anne, testified that she heard. She didn't actually see anything. She just heard and she saw the boys crying afterwards, but Clark, Brian, and Jeremy testified that they were all the recipients of a spanking by their father and the weapon, if I can characterize it as such, or stick that was used, has been described as a hockey stick, as a stick being about 15 to 18 inches long by one inch wide and also as a two by four, about 12 to 15 inches, so there have been various descriptions of what exactly was used, and the court has not seen the item nor has it been made part of the exhibits. The court has also been told that the stick was retrieved from the woodpile, which was an accumulation of similar sticks or debris on a part of the balcony. The evidence therefore is that after five minutes and no one had come forward to admit that he was the culprit, the father then decided to administer punishment, and the punishment he administered was to give each of the three, three strokes with the stick on his bottom. The crown prosecutor takes the position that this was not for correction purposes, because the assumption is that there is only one individual or one of the boys committed the offence and all three were spanked. I should indiciate first that with respect to that submission, it is not clear in the evidence whether it is one or three. The assumption is that it was one boy who did it, but the evidence is not clear and it could have been all three, so the court cannot close its eyes to the fact of that possibility, that all three boys had committed the act. But, the crown also goes on to rely on a number of cases. She relies on the Baptiste case, which is clearly a case where there was excessive use of force. The crown points out that the court expressed its disapproval of the use of force in such cases. She relied on the Peterson case also, and pointed out that the defence's position, that the absence of injuries would indicate that the force was not excessive. That was not the only factor to be considered, and the Peterson case outlined a number of factors, and the crown went into details those factors from the Peterson case. Those factors, according to the crown at page six, were the nature of the offence calling for correction, the age and character of the child, the likely and actual effect of the punishment upon the particular child, the degree of gravity of the punishment, the circumstances under which it was inflicted, and the injuries, if any, inflicted. And then the court goes on to say: "Applying these criteria to the evidence led under the issue of reasonableness my finding is that the force used by the defendant in spanking his five year old daughter did not exceed what was reasonable in the circumstances." The evidence that this court has heard indicates quite clearly that the allegations of assault or the allegations against the defendant of striking the three boys arose as a direct result of an incident involving urinating in a can. The case law is quite clear that it is not up to the court to decide what degree of punishment a parent should inflect upon a child. It is not for the court to decide whether the punishment should be weighed according to the gravity of the offence. That is a subjective decision and that decision has to be made by the parent, and so in this particular case what the parent did after he found out that one or more of the boys had been doing something totally inappropriate was first to question them. The evidence is clear the parent simply did not approach the boys and decide to punish them. His first approach was to question them, "Which of you did this?". And when there was no answer the parent then gave the boys five minutes to decide which of them would come forward and admit that he was the culprit. The parent then decided to call the boys into the living room one at a time. As they came in, one at a time, the parent then gave each of the boys three strokes with the stick that he was holding. I have already indicated that there have been descriptions of the stick as being part of a hockey stick, a piece of wood one inch thick, 15 inches to 18 inches wide, or a two by four. In my view the stick was not of such a nature as one would expect could inflict serious injury. After the boys were called in and he had inflicted three strokes on each boy, the boys were let outside. There is no further evidence that there was any continuation of punishment on the boys. There is no further evidence that anything further was done. Each boy received three strokes and that was the end of the matter. The boys were asked, on the cross-examination and in direct, about the consequences of receiving three strokes. One of the boys said he felt dizzy for about five minutes, I'm sorry, five seconds. In general the evidence was that the boys did experience some degree of discomfort, but that degree of discomfort was not lasting. It was not a situation where the boys suffered a sore bottom for any length of time that could be considered unreasonable or unusual. There is evidence from Anne that she had observed the boys crying, but Anne did not observe punishment being inflected upon the boys. She was only told this and her only observation was that the boys were crying. The boys could have been crying because they felt their dignity had been abused or from the pain, but the court cannot be sure as there is no evidence as to why the boys were crying. As far as the boys themselves are concerned they minimized the degree of suffering or discomfort. They treated it a being the normal consequence that one should expect having received three strokes from a stick as they described. On that basis has the defence prevailed in its motion before me? S.43, as I have paraphrased, points out there are three elements. The elements first, whether or not the defendant is a parent has been settled because clearly the defendant is a parent. The element as to whether or not the punishment was inflicted for purposes of correction, in my view clearly the punishment was inflicted for purposed of correction. It was the defendant's way of saying to the boys, "What you did is wrong. It's totally inappropriate and you are not to do this again". There cannot be any clearer message of correction than this. Thirdly, was the force used unreasonable? This is not a case where the defendant continuously, and without restraint, struck each of the three boys in such a way that he caused them serious injury or discomfort or any of the elements that come outside the factors as enunciated in the Peterson case. This is clearly a case where the punishment inflected upon the boys was measured. It was done, in my view, in a period of emotional calm. The defendant was in full control of himself at the time he inflicted the punishment, and there is no evidence that other than the fact that each of the boys receive three strokes from a stick and they were then let outside, that anything further was said or done to the boys. I look at the case law that has been presented to me and referred by both defence and the crown prosecutor, and in the case of Regina v Bell, Langdon J stated at paragraph 19: "S.43 of the Code does not require a parent to restrict discipline to appropriate proportionate responses to increasing problems. It does not specify that fear and pain must be the last resort. It may be that Justice Hackett sees lying as a relatively trivial matter, not among the clearly worst types of behaviour that a parent could encounter with a child. Perhaps the parent foresaw that the child might become a witness or a lawyer and that lying if not nipped in the but might destroy the child's career or result in imprisonment. It does not require the parent to anguish over concepts of general and specific deterrence and whether if the child re-offends the parents arsenal of permissible punishments may be extinguished. The test to be applied at this stage of the proceedings where the crown has closed its case and defence moves for a non-suit is the test as laid down in the case of The United States v Sheppard where the court stated that the question is whether there is any evidence upon which a reasonable jury, properly instructed, could return a finding of guilt. In applying the test to the case at bar with respect to counts two and three I am satisfied that the test in the Sheppard case has not been met by the crown prosecutor. In the case at bar I am satisfied that a reasonable jury properly instructed would not return a finding of guilt against the defendant with respect to counts two and three, and accordingly I discharge the defendant on those two counts. Now, with respect to count one, Mr Allman, are you calling defence evidence? MR ALLMAN: I have to anguish over that to some degree, Your Honour. I can tell you this, at this point in time, I am going to be trimming down the witness list considerably if I call any evidence at all. Might I suggest at this point in time that we take an early lunch. I can tell you that no more than two witnesses will be called, if any, with respect to count one. I just have to consider my client's situation with respect to his condition and a second witness, and that will be the extent of it. So, we have trimmed down the witness list dramatically, sir. I am not going to call anyone else from the church or any of those types of thing. THE COURT: All right. Ms Marcon, do you have any comments? MS MARCON: I leave it in your hands, Your Honour. THE COURT: We will take our luncheon recess at this time and we will resume at two o'clock. R E C E S S U P O N R E S U M I N G : REPORTER'S NOTE: At this time Mr Bakker gives evidence. (Duly recorded but not transcribed). R E A S O N S F O R J U D G M E N T ROSEMAY, Ont Crt J (orally) With respect to the count of assaulting Anne, the evidence for the court's consideration is evidence given first by Anne herself. In her testimony Anne testified that on the day in question she was in the process of setting the table for breakfast. She said the other siblings were sitting around the table and it was a situation where she was either going too fast or too slow. She doesn't recall if her father said anything, but it felt like a punch however, she did not believe it was a punch. She went on to state that he made contact with his open hand. It hit her on her shoulder. She could not recall her father saying anything after he hit her. She says her shoulder hurt for a bit. She recalls she was hit just once and she was asked if she said anything and she replied she may have said, "Ow". She said she was not expecting to be hit. She said her father was sitting at her side and it was the palm side of his hand which hit her. However, on the cross-examination this is what Anne said. She said that she felt some contact but she did not remember the degree of force. She did not see the contact. The force used was not soft, but it was not hard either. She recalls it was used on her left shoulder. She was asked what prompted the application of force and her response was that it could have been that my father was telling me to sit down and I was not responding. She says, "It did not hurt for more than a minute and therefore I did not look". She said that she does not recall what was said next between herself and her father. In his evidence, the defendant testified that on the day in question the family was expecting a call from Holland. It was his father's birthday, and it was customary that the family would gather around the breakfast table and sing happy birthday. Anne was to sit next to her father at the table. He does not deny that he did place his hand on Anne, but his explanation is that he did so because he asked her to sit down at the table and her response was not fast enough. She was moving slowly, so he placed his right hand on her left shoulder and moved her towards the chair. He stated that it was not his intention to strike her or to cause her injury when he directed her to the chair. Under cross-examination the defendant admitted that he wanted Anne to move a little faster because there was some urgency. It was less then a minute before the phone would ring, and because of that he wanted everyone to be seated at the time the phone rang. He admitted that his wife was not seated at the table, but in his opinion she was in proximity to the table, and he did not feel it necessary to urge his wife to sit because he felt that when the phone rang she would be seated. He said he felt it necessary in Anne's case, however, to place his hand on her shoulder and push her forward towards her chair. He said when he did so she sat down. In submissions the crown prosecutor refers to the case of Regina v J.O.W. That case deals with an incident in which a mother struck her 17 year old daughter all over her body including her face, pulled her to the floor by her hair and kicked her. In the course of the assault the daughter's eardrum was accidentally perforated. The circumstances in the J.O.W. case are quite distant from the case at bar. Here we do not have a situation in which the father even slapped his daughter. We do not have a situation where there was any further application of force than a father placing his hand on his daughter's shoulder and directing her towards her seat. The father has offered an explanation and the court accepts it. In my view the father's explanation in the circumstances, as to his placing his hand on his daughter is reasonable. I accept his application. I am not satisfied that father had any intention whatsoever to assault his daughter and accordingly count number one is dismissed. MR ALLMAN: Thank you, Your Honour. I think that is all we have to do with respect to this matter. MS MARCON: Thank you, Your Honour. * * * * * * THIS IS TO CERTIFY that the foregoing is a true and accurate transcription of my recordings to the best of my skill and ability. _____________ Ruth Wilson, Certified Court Reporter.