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Canada Mother claims self-defence in assault against hysterical 8-year-old

16:50  10 may  2018
16:50  10 may  2018 Source:   cbc.ca

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The Criminal Code allows an argument of self-defence for assault when a person is being attacked and if the force is proportional to the situation.© AFP/Getty Images The Criminal Code allows an argument of self-defence for assault when a person is being attacked and if the force is proportional to the situation.

A B.C. woman has been found not guilty of assaulting her eight-year-old son after arguing she wrestled the child to the ground out of self-defence when he started kicking her during a tantrum.

In reaching his decision , provincial court Judge Richard Hewson stressed that the woman's actions might not have been acceptable if the boy hadn't physically attacked her.

"However, the law of assault does not make an exception requiring parents to tolerate assaults by children," Hewson's ruling reads.

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"A degree of force that would not be reasonable by way of correction, might be reasonable in self-defence."

Swearing, shouting, kicking

The self-defence argument was one of two legal strategies undertaken by the woman, who is known only as S.H.

The other was the unique justification of force allowed against a child under the Criminal Code by way of correction. But S.H. wasn't able to make that defence stick.

She was charged with assault after her estranged husband reported the incident months after it happened.

The relationship between mother and father ultimately factored into Hewson's decision, as the judge concluded the husband's testimony was possibly biased against her.

a man wearing glasses and smiling at the camera: Provincial court Judge Richard Hewson found the Crown had failed to establish the woman's actions were not taken in self-defence.© Provincial Court of B.C. Provincial court Judge Richard Hewson found the Crown had failed to establish the woman's actions were not taken in self-defence.

The incident occurred in September 2016. S.H. was living in an unspecified facility at the time and had been seeing her son on alternate weekends.

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The boy — known as C — "has behaviour patterns that make him extremely difficult to parent."

The tantrum began after S.H. refused to buy C a toy.

"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," the decision reads.

"C continued to struggle, and the two of them fell on the ground."

S.H. said she straddled the child and sat on his legs. His dad claimed the child had dirt on his face, scratch marks on his neck and shoulder and grass on the back of his neck when he picked C up.

A kick too far

In order to successfully argue that force against a child is justified, an accused has to satisfy three elements: they must be the child's teacher or parent; the force has to be applied by way of correction; and it should be reasonable.

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To add insult to injury, the man, identified by authorities as 27- year - old Vincent Cerfalo, insists that he acted in self - defense ; and, once again, he isn’t currently facing any charges and is, in fact, looking to pursue charges against Malikai for assault .

While S.H. was obviously her son's parent, Hewson found her decision to wrestle C to the ground and swear at him was motivated more by frustration than the desire to discipline.

The judge also found that restraining a child might be defensible, but tackling him is not.

That left the self-defence argument — which also comes with three pre-conditions: an accused has to believe force is being used against them; the action has to be taken for the purpose of protecting oneself; and it has to be reasonable.

Hewson found that S.H. was being kicked and the Crown had not proven beyond a reasonable doubt that she didn't wrestle C out of self-preservation.

The judge noted that a kick to the ankle was "relatively painful" and that the force S.H. used "was proportional" to her son's actions.

"This last point is key," Hewson wrote.

"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."

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