PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Gilroy, 2015 NSPC 45
Date: 20150608
Docket: 2728702
Registry: Truro
Between:
Her Majesty the Queen
v.
Christopher Michael Gilroy
Decision
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Editorial Notice: |
Identifying information has been removed from this electronic version of the judgment. |
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Judge: |
The Honourable Judge Timothy Gabriel, J.P.C. |
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Heard: |
April 21, 2015 and June 8, 2015, in Truro, Nova Scotia |
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Oral Decision |
June 8, 2015 |
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Charge: |
Section 267(b) of the Criminal Code |
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Counsel: |
Laura Barrett, for the Crown Michael Scott, for the Defence |
Gabriel, J.P.C. (Orally):
Introduction
[1] N. D. is the 10 year old son of L. S. and M. D.. He presently resides in […], Nova Scotia with his family, consisting of his parents as well as his brothers, U., I., and E.. He is in grade five.
[2] On July 14, 2013, things were different; N.’s parents are unmarried, and they were separated at the time. He, his two oldest brothers and Ms. S. were residing with the accused, Christopher Gilroy, in Greenfield, Nova Scotia, a community just outside of Truro. His youngest brother, E., was not yet born. Ms. S. and Mr. Gilroy had married on July 6th, 2013, after living together for a short time previous to that.
[3] Residing in the home in Greenfield, then, were Ms. S., her three children by a previous relationship, as well as Mr. Gilroy and his son, P., who was six on July […], 2013.
[4] All agree that on July 14th, 2013 N. sustained a broken arm and carpet burn to his face. The Crown says the accused is responsible for what happened to him. The accused says it was an accident. Mr. Gilroy has been charged that on July 14th, 2013 “at or near Greenfield, Nova Scotia he did, in committing an assault on N. D., cause bodily harm to him, contrary to Section 267(b) of the Criminal Code of Canada”.
[5] The Crown called three witnesses: N., his brother U., and Ms. S., their mother. The defence also called three: the accused, his son P., and Donna Gilroy, who is the spouse of the accused’s uncle.
[6] A troubling aspect of this case is that every witness (with the exception of Donna Gilroy) has acknowledged that they either lied at the hospital when N. was taken to have his arm treated, to the police subsequently, or to both.
Evidence
(i) N. D.
[7] When asked by Crown counsel if he knew “why he was here”, N. responded that he was here so that he could “tell about how Chris broke my arm”.
[8] The basics of his evidence on direct consisted of the following:
(a) July 14, 2013 was a Sunday. The incident occurred that morning.
(b) He, his brother, and his step-brother, P., were watching television.
(c) He expressed the opinion that what was on television was a “little kids’ show”, and further, that he “didn’t like it”.
(d) The accused abruptly entered the living room, picked him up and threw him.
(e) He landed one half on the living room floor and one half on the kitchen floor.
(f) His mother, who was in the shower when it happened, came out, asked what had happened and took him to his room.
(g) Later he went to the hospital.
[9] On cross-examination, he stated that the accused grabbed him by the middle and lifted him so that his head was at the level of that of the accused. The accused did not say a word, just grabbed him and threw him. In the aftermath, both the accused and N.’s mother told him to lie to the doctor at the hospital and say that he just tripped and fell. He also lied to Donna Gilroy, whose cottage the family visited a short time thereafter. When Ms. Gilroy asked him how he broke his arm, he repeated what he had said at the hospital.
[10] N. testified that the incident occurred a few days after Mr. Gilroy and his mother had been married. When thrown he landed on his stomach. In addition to the broken arm, he received carpet burn to his face. The accused initially grabbed him by the forearm, pulled him toward the kitchen, then picked him up and threw him back toward the living room. When it was put to him on cross-examination, he denied that the broken arm had occurred as the result of an accidental slip and fall while the accused was attempting to conduct him into the kitchen.
(ii) U. D.
[11] U. D. is N.’s younger brother. He confirmed that he and his brothers and mother lived at the accused’s house “a long time ago” while his mother and Mr. Gilroy were dating.
[12] His evidence on cross was to the following effect:
(a) The accused frequently was mean to (and hurt) his brothers, N. and I..
(b) N. had to wear a cast because the accused broke his arm.
(c) He was on the couch in the living room when it happened.
(d) N. and P. (Chris’ son) were there too.
(e) “N. didn’t like the show so he (the accused) just threw him” were the words that U. used.
(f) It occurred close to the living room and kitchen.
(g) N. had carpet burn. He was screaming.
(h) No one had tried to turn the show off.
(i) N. had been on the couch.
(j) N. had to go to his room after being thrown.
(k) He went to the hospital with N., I., P., the accused and his mother. He was scared.
(l) He now has another little brother, E., who is one year old. E. is the accused’s son with his mother. He occasionally sees the accused when picking up E. for access visits.
(m) He said that he was happy when he, his mother and brothers moved out of the accused’s home, and said that the accused was mean to N. and even to I., who was two or three at the time.
(n) N.’s arm was broken after the accused picked him up with two hands under his armpits. Mr. Gilroy was standing close to the couch which is right by the entrance to the kitchen.
(o) N. landed on the living room floor. The living room was carpeted. The kitchen is not. N. landed on his stomach.
(p) No part of N.’s body landed in the kitchen.
(q) His mother entered the room and told the accused she was breaking up with him. The accused started to cry. His mother started to pack. A few days later he and his brothers and mother moved out of the accused’s home.
(r) His mother told them to lie and say that N. tripped and fell.
(iii) L. S.
[13] L. S. is N.’s mother. She currently resides in […], Colchester County, Nova Scotia. She has four children. The accused is the father of the youngest. Their names and ages are N., 10; U., 9; I., 5 and E., 1.
[14] She and her oldest children lived with the accused in his home in Greenfield, Nova Scotia for about a month.
[15] She described the kitchen as a kind of open, circular area. One could go around either way to get to the living room which had carpeting. The kitchen did not. There was no distinct doorway separating the kitchen and living room.
[16] Ms. S. and the accused were married on July 6th, 2013. The incident involving N.’s broken arm occurred on July 14th, 2013. Their separation, she thinks, “might have been on July 24th, 2013”.
[17] On the morning of July 14th, 2013, which was a Sunday, the children were in the living room watching T.V. She had just gotten out of the shower and was drying herself when she heard N. scream loudly. She ran to the living room, saw what had happened, obtained a cooler and ice and put his arm in it.
[18] She found Mr. Gilroy on the back deck smoking. He was also pacing.
[19] Her testimony was that she said, “we have to get him (N.) to the hospital” and that the accused replied, “you’re just going to try to get me locked up”. She did not mention this alleged response in either of the two statements that she subsequently gave to the police many months later when the incident was reported.
[20] She went back to the house and went to the bedroom with N.. The accused came back inside and they all took N. to the hospital.
[21] Ms. S. testified that she had had some involvement with Children’s Services in the past, as a result of something N.’s biological father had done to him. She had temporarily lost custody of her children as a result. She was concerned that the Agency would become involved once more if she were to tell the hospital that the accused had thrown her child, resulting in the broken arm.
[22] As a consequence, she instructed all of the children to say (if asked) that N. was running around, and that he tripped over a raised ridge on the floor. The accused was present when she gave them this instruction. This is the story that she, the accused, and the children related at the hospital.
[23] That notwithstanding, Ms. S. testified that she only told the children to tell the truth prior to attending Court for the trial. She brought them in meet Crown counsel beforehand, but was not present while they did so.
[24] N. had a hard cast on his arm for approximately two weeks, then a more flexible one for about two weeks longer. He also had a carpet burn on his face from the incident for a while.
[25] Ms. S. said she moved out of their Greenfield residence because Mr. Gilroy had hurt her son. She did not leave right away, however. In between the injury and her departure, the family visited Donna Gilroy’s cottage. Ms. Gilroy is the accused’s aunt by marriage to his uncle. N. repeated to Ms. Gilroy the same story he had been told to say at the hospital, when she asked what had happened to his arm.
[26] Ms. S. indicated it took her a number of days to move out because she was worried that the accused might hurt himself. Prior to the subject incident, she had never had concerns about the accused harming her children.
[27] Initially, after she had left Greenfield, Ms. S. and her children moved to Moncton. While there, she said that she learned from her children that the accused had hurt I. on a previous occasion when he and the boys had gone to the Wildlife Park. She recalled having seen (at the time) something on I.’s bottom, which “looked like a hickey”, as she described it.
[28] The incident involving N.’s arm only came to the attention of the police after she had left Greenfield and moved to Moncton. She broke down and told N.’s biological father, who resided there at the time, that she had lied about something, and explained what she had done and why.
[29] With respect to her son, E., who was born after the separation, she and the accused share joint custody, and the latter has him regularly for access visits. Mr. Gilroy has no interaction with her other children, and they have none with him or his son P.. She has no concerns for E.’s safety with the accused.
[30] Contrary to what her son U. had recalled, she stated that she did not tell the accused that she was leaving him on the date of the incident. That came later on. As previously noted, she and her children remained in the home until approximately July 24th, 2013, but she said that the children were not left alone with the accused during that interval.
[31] Ms. S. stated that she left because she could not stay with someone who would hurt her children. When the matter was reported to the police, she had not yet reconciled with, nor was she then living with N.’s biological father, although this has since happened.
(iv) Donna Gilroy
[32] The defence elected to call evidence. Donna Gilroy took the stand to essentially say five things:
1. That she is married to the accused’s uncle.
2. That she and her husband have a camp on the Brule shore.
3. That the accused, Ms. S. and the children visited her at the camp in the summer of 2013, while N. had a cast on his arm.
4. That when she asked him how it happened, N. told her “we were fooling around and I fell off the couch and broke my arm”. This occurred about two weeks after Mr. Gilroy and Ms. S. had been married.
5. Mr. Gilroy was about 20 feet away when she had this very brief conversation with N. on the topic.
(v) P. Gilroy
[33] Next, the accused’s eight year old son, P. Gilroy, took the stand. P. is in grade two and presently lives with his father and his paternal grandparents.
[34] He testified that he has a little brother, E., who is only a baby. He recognized L. S. as “dad’s girlfriend that he broke up with”, and that he used to live with her, N., U. and I. about two years ago. He said he liked living with them “a little bit”. When asked if he knew why he was here today, he said it was because “N. broke his arm”. He acknowledged that he was present when it happened, and that he was “watching T.V., I think”. He said that he was on the couch with the other boys except I., who was on the floor. He stated that “N. flipped the channel and dad got angry”. His Dad started to take N. to his room. N. squirmed out of his father’s grip, which caused him to fall and break his arm. He said that he did not see his father throw N. and that “L. (Ms. S.) made us say that N. was running around and fell down or dad could get in trouble”.
[35] P. said his father told him to tell the truth before he testified, then he quickly added that he had not been told about what to say, though. P. could not remember:
1. If he saw L. S. at all when it happened (although he told the police she was there).
2. If his father fell when N. fell.
3. If N. landed on his father.
4. What he did that morning.
5. If his father said anything.
6. If N.’s hands and legs were moving when picked up, or
7. What happened next when he next saw Ms. S..
[36] He did remember seeing his father pick N. off the ground “a little”, but not over his head. When asked on cross why he had felt it necessary to add that his father “didn’t lift N. over his head”, he acknowledged that his father had told him beforehand that the Crown lawyer would be trying to say that he held N. up over his head. P. knew his Dad was angry with N. because “he really liked that T.V. show too”.
(vi) Christopher Gilroy
[37] Christopher Gilroy, the accused, is 30 years old. A roofer by trade, he presently lives at 56 Scott Avenue with his parents and his son, P.. Currently, he and Ms. S. have worked things out sufficiently to facilitate his regular access with their one year son, E., of whom they share joint custody. Although he is still married to Ms. S. (in the sense that they have not yet divorced), they are separated.
[38] According to Mr. Gilroy, Ms. S. and her children began residing with him in his home in January 2013. They were married in July of that year and separated approximately three weeks’ later.
[39] During their time together, he indicated that he was the disciplinarian because Ms. S. wanted to be the “children’s friend”. To Mr. Gilroy, it seemed that they were often unable to see things the same way when it came to raising the kids, and that she “always seemed to find excuses” for what he considered to be her children’s bad behaviour.
[40] The accused explained that his method of discipline was that if someone did something wrong, he would explain why it was wrong, and then he would give “three chances on any issue, but after that you take your punishment if you’re the kid in the wrong”.
[41] He testified that while he had spanked I. in the past for spitting, he found N. more challenging. Generally, he indicated that he sent N. to his room downstairs when discipline was needed.
[42] On the morning of July 14th, 2013, which was a Sunday, the accused recalled that the boys were all in the living room watching television. He was in the bedroom with Ms. S.. He heard P. and N. argue over the T.V. N. was, in his view, “being bossy”.
[43] This bothered the accused because he had let him stay up past his bedtime the night before. Accordingly, he felt that N. should have been more appreciative or grateful, and been in better spirits that morning rather than acting “bossy” towards his son, P..
[44] Mr. Gilroy said he is a “pretty fair” person and father. He testified that he listened briefly to P. and N. “speak over” one another, quickly decided that N. was the instigator, and grabbed him by the bicep of his arm while he was on the couch. In his evidence he said that he told N. “you’re going to your room to start your day over”.
[45] He further related that as they headed towards the basement stairs and kitchen area, N. was squirming because he did not want to go. This caused the two of them to trip and fall, which resulted in N.’s broken arm. Mr. Gilroy denied ever picking N. up and added that at no time did he ever have more than one hand upon the child.
[46] The two fell upon the carpet in the living room. N. immediately began crying and said, “My arm, my arm”. The accused says he then went up and got some ice for N.’s arm. Ms. S. came down to be with her child in his bedroom, which was down the stairs in the basement. The accused went out onto the deck to have a smoke.
[47] Mr. Gilroy denies making the statement to Ms. S., while out on the deck, to the effect that she was just “trying to get him locked up”. He does acknowledge, however, being present when Ms. S. told all of the children including his own son, P., to lie about what had happened. He also said that he was in agreement with this course of action because Children Services might become involved.
[48] By the time the incident had been reported and he was interviewed by the police, the accused and Ms. S. had already separated, and the latter had reconciled with the father of her three oldest children. Despite this, Mr. Gilroy acknowledged that he never told the truth to the police at any point. He told them that N. had been running and fell. His testimony in Court was that he had been taking N. to his room by the arm, and the boy squirmed which caused both of them to fall, and that this is really what happened.
[49] He denied picking N. up at any point and suggested that all of the boys, including his son P., are mistaken on that point.
Law
[50] Assault is defined in Section 265 of the Criminal Code, the relevant portion of which states that:
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; or …
[51] Section 267(b) defines the offence of assault causing bodily harm. The relevant portion of that Section tells us that:
267. Every one who, in committing an assault,
…
(b) causes bodily harm to the complainant,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
[52] Even on the basis of the accused’s own testimony, it is clear that force was applied to N.. It is also clear that the force was not applied consensually, for example, within the context of a game, where contact is inevitable.
[53] Mr. Gilroy argues that his conduct is permissible when regard is had to Section 43 of the Criminal Code. This section justifies the use of force by certain persons to correct a child. It reads as follows:
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.
[54] His argument is that he had taken a hold of the child’s arm while he was seated on the couch and was attempting to lead him towards to the stairs which lead to his basement bedroom. He had to go through the kitchen in order to do that. N. squirmed and the two lost their balance and fell. In this scenario, although he did apply force to N., he argues that this force is caught by Section 43, and that in any event, the force that he applied did not result in N.’s broken arm. Rather, that harm happened strictly by misadventure, as N. tried to squirm away, causing both of them to fall.
[55] The accused called evidence, and as such the principles set forth by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742, are pertinent. The method recited therein is a guideline intended to assist the trier of fact in determining whether reasonable doubt exists in such cases. This guideline is summarized in Justice Cory’s often quoted statement, at pp. 757-758 of W.(D.):
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[56] As I embark upon the W.(D.) analysis, let me state that I did not believe the evidence of the accused with respect to either the nature of the force that was applied to N., or how he came to end up with his broken arm. Nor was I left in any reasonable doubt as to whether what the accused was saying might reasonably be true. I will outline some of the reasons why I came to these conclusions.
[57] First, the accused was a willing participant in a scheme to have all of the children (including his own son) lie, particularly when it is difficult to see what his exposure could have been had he simply said, “Let’s tell everyone what really happened”. He said that Ms. S. has a history with Children’s Services, and that this might have resulted in the authorities deciding not to believe what they say really happened. It also might have resulted in them taking the children into care once again. This sounds contrived in the present context.
[58] This is particularly so when one considers that even after there was no possibility of protecting Ms. S. (after she and children had gone to the authorities themselves post separation and reported the incident) he still lied, this time to the police. When he spoke with the police, what he said was very different from the version of facts to which he subsequently testified in Court. Indeed, the accused told them that N. had been running and simply fell. No mention by Mr. Gilroy (then) of grabbing him by the arm. No mention of trying to escort him to his room. No mention of N. squirming and causing the two of them to fall, resulting in the broken arm. No mention of the fact that he was purporting to exercise parental discipline at the time.
[59] Moreover, N. is a very slight child. Two years ago he was eight years old and even slighter. Mr. Gilroy is a robust man. He testified that he had only one hand on the child while leading him to his bedroom. It is difficult to see how the latter’s squirming could have caused both of them to topple and fall. The accused could not say, when asked, whether one of them had landed on top of the other when they fell, or how far apart they were when they landed on the floor.
[60] Finally, it is very difficult to account for the uncontroverted presence of carpet burn on N.’s face under the scenario that the accused posits. While sliding face first over a carpet over a distance could account for it, it would be farfetched in the extreme to expect it to be produced by a simple fall under the circumstances depicted by Mr. Gilroy.
[61] Therefore I turn to consider the last segment of the W.(D.) test. Has the Crown discharged its’ onus and proven the accused’s guilt beyond a reasonable doubt? In so doing, I must make certain findings of credibility, particularly with respect to some very young children who were even younger when the relevant events unfolded.
[62] On the issue of the assessment of the credibility of young children, Justice Beverley McLachlin of the Supreme Court of Canada had this to say in R. v. W.R., [1992] 2 S.C.R. 122, at paras. 24-25:
24 The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. Wilson J. recognized this in R. v. B. (G.), [1990] 2 S.C.R. 30, at pp. 54-55, when, in referring to submissions regarding the court of appeal judge's treatment of the evidence of the complainant, she said that
... it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.
25 As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a “common sense” basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.
[63] In an overview of the evidence all of the children, it is certainly true that there were some inconsistencies internally in the evidence of each, as well as between each other. For example (and this list is by no means exhaustive):
1. N. D. (who was 10 years old when at the time he testified, and only eight years of age when the event occurred) said that just before he was thrown Mr. Gilroy picked him up by placing both arms around his middle and bringing his head up to about the same level as that of the accused. N. was facing away from the accused, and he was then thrown over a distance which I have concluded (based upon the child’s spatial relationships as described in Court) was about four feet.
2. N. said he was first pulled by the accused toward the kitchen by his forearm, then grabbed around the waist and thrown back towards the living room, such that he landed with his top half (including, of course, his face) on the living room carpet, and with his bottom half on the kitchen floor.
3. U., who was about seven years of age at the time the described events unfolded (and nine when he testified) said that the accused picked N. up with two hands under his armpits while standing close to the couch, which is close to the kitchen entrance. N. landed entirely in the living room and on the carpet. No part of him landed on the uncarpeted kitchen floor.
4. U. also stated that very soon after the incident happened, his mother entered the room, told the accused she was breaking up with him, started to pack up their things, and that the accused started to cry. This was a fact mentioned by no other witness. In fact, Ms. S. herself testified that her decision to leave was not made until approximately 10 days after this incident.
5. N. and all of the other children either lied to the hospital authorities, or were complicit in the tale which was told, which was to the effect that N. was either running and had fallen and had broken his arm or, in the case of what N. told Donna Gilroy, that the children were fooling around on the couch and he fell and broke his arm.
6. P. Gilroy was eight years old at the time he testified, and was six on July 14th, 2013. He said that N. squirmed while his father was taking him to his room, and he fell and broke his arm. N. landed in the middle of the kitchen and the living room. “Dad was angry”, he said. He could not remember if his father said anything. “N.”, he said, “fell down and hit a metal thing, I think …. L. made us lie to the people at the hospital and say N. just fell, because Dad could get in trouble” if they told what really happened. He could not remember if his father fell when N. fell or if N. landed on his front or back. He said that N. had remarked before this happened that the show they were watching was a baby show and got up and changed the channel, which made his father angry. He agreed on cross that he did see his father pick N. “a little”, in his words, off the ground.
[64] I have previously dealt with the defence evidence overall when I considered it within the context of the first two stages of the W.(D.) test. P. was hesitant, on the whole, when he testified, continually looking at his father as he testified and while being cross-examined, and unable to relate much more than what appeared to be a “sound bite” that had been memorized by rote. Despite this, he did confirm two important things on cross-examination: that his father was angry at the time this happened, and that his father did lift N. up prior to the latter receiving his broken arm.
[65] As to the differences in the manner in which N. was picked up as described in the testimony of the three children, the obvious must be borne in mind. The Court is dealing with exceptionally young children, describing a very scary event, one which had occurred almost two years’ prior to their testimony, and, moreover, one which probably took mere seconds to develop, culminate, and then to end. That ending was traumatic, and it involved a child laying on the floor, screaming and writhing in pain.
[66] With respect to the different stories that were provided to the hospital and to Ms. Donna Gilroy as to how N. had broken his arm, the children were simply doing as they had been instructed by their mother and her new husband. The two adults seemed to place a higher priority upon what they considered to be their own best interests at the time, rather than upon those of the children, who were, no doubt, confused and upset by the falsehood that they had been instructed to tell. Both N. and U. were adamant in court that they were now telling the truth, and were unshaken by firm cross-examination in that respect. Their demeanour, recollection and affect as they described what happened were appropriate to their age and their testimony was consistent with the uncontroverted external facts, including the broken arm and the rug burn on N.’s face.
[67] I did not find that the internal inconsistencies in N.’s and U.’s testimony detracted from the overall force and thrust of their evidence, which was to the effect that Mr. Gilroy became upset with N. in the morning because of his reference to the program that the boys were watching as a “baby show”. He pulled him off the couch towards the kitchen, then picked him up and threw him back toward the living room, causing him to skid, face first, along the living room carpet resulting in the rug burn on his face and his broken arm. U.’s description, which differed in some respects with respect to the manner in which N. was picked up and thrown, is not surprising given the fact that U. was only eight when he testified, and the incident had happened approximately two years before that.
[68] I am also satisfied that when U. described his mother saying to Mr. Gilroy that very day that she was leaving him, starting to pack their things, and the accused starting to cry, he was conflating an incident (which happened in reality approximately 10 days later) with the incident in which N.’s arm was broken. Again, this is not surprising for a very young child recalling a stressful and serious incident like this.
[69] So, has the Crown proven its case beyond a reasonable doubt? The concept of reasonable doubt has been expressed in many different ways over the years. The Supreme Court of Canada decision in R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 39 is often quoted in this context:
39 … The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty.
What does the expression “beyond a reasonable doubt” mean?
The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
[70] In applying this standard, I have listened carefully to the evidence of all witnesses. I have, however, disregarded that portion of the testimony of the two D. boys, U. in particular, to the effect that the accused was “generally mean to N. and I.” and the testimony involving his former spanking of U.. Although this evidence was introduced as part of the Crown’s case, and without demur by counsel for the accused, it could have had no purpose other than to show that the accused is the type of person who does the sort of thing with which he is charged. As such, it is propensity evidence, and, to repeat, I completely disregarded it.
[71] I accept the following as having been proven beyond a reasonable doubt:
1. On July 14th, 2013, Mr. Gilroy, who was upset with N. for this comments about the T.V. show, and for “being bossy” towards his son, P., intentionally applied force to the child. He pulled him off of the couch, pulled him towards the kitchen, and, when N. resisted, the accused picked him up and threw him back towards the living room causing him to land face first on the carpeted living room floor and break his arm, and also sustain a rug burn to his face.
2. There was no legal justification for the accused’s application of force to this young child. The accused had argued that he stood in loco parentis to N.. I did not accept this contention. They had all only begun living together (on Ms. L.’s evidence , which I accepted on this point), about two weeks earlier. They had recently been married, and the defendant acknowledged that their views differed, particularly with respect to the imposition of discipline. Even if I could have concluded, under these circumstances, that he stood in loco parentis to the child, I would have concluded that the force employed when N. was thrown by the accused was grotesquely excessive, and was certainly not in the character of corrective or parental discipline.
3. The force employed by the accused against this child resulted in much pain, a broken arm, and the rug burn that has been previously noted. The broken arm required N. to wear two different types of casts over roughly a one month period. Reasonable foreseeability that harm will occur as a result of the assault is not a necessary element of the offence. However, in this case, the nature of the injury inflicted upon a young, slight child of eight years of age, in these circumstances, would not come as a surprise to anyone, given the significant force that was employed.
[72] In sum, I am convinced beyond a reasonable doubt that the accused assaulted N. D., and, in so doing, caused bodily harm to him. A conviction will accordingly be entered.
Timothy Gabriel, JPC