2011 QCCA 890, 2011 QCCA 890

Unofficial English Translation Dubois c. R. 2011 QCCA 890 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-003861-075 (505-01-063392-068) DATE: MAY 13, 2011 CORAM: THE HONOURABLE BENOÎT MORIN, J.A. FRANÇOIS DOYON, J.A. MARIE-FRANCE BICH, J.A. MARCEL DUBOIS APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix JUDGMENT [ 1 ] The appellant appeals from a judgment rendered on May 2, 2007, by the Court of Quebec, District of Longueuil (the Honourable Judge Denys Noël), which convicted him on four counts. [ 2 ] For the reasons of Doyon J.A., with which Morin and Bich JJ.A. agree, the Court: [ 3 ] ALLOWS the appeal; [ 4 ] QUASHES the trial judgment; [ 5 ] ACQUITS the appellant on counts 1, 3, and 6; [ 6 ] ORDERS a new trial on count 5. BENOÎT MORIN, J.A. FRANÇOIS DOYON, J.A. MARIE-FRANCE BICH, J.A.

Mtre Tristan Desjardins Downs Lepage, s.n.a. and Mtre Nicolas Bellemare For the appellant Mtre Magalie Cimon Criminal and penal prosecuting attorney For the respondent Date of hearing: November 9, 2010

REASONS OF DOYON J.A. [ 7 ] Initially charged with six offences that allegedly occurred in 2005 and 2006, the appellant was acquitted on two counts (assault causing bodily harm to L.L. and forcible confinement of F.R.), but was convicted of the other four: 1) assault against L.L. between November 1, 2005, and May 24, 2006; 3) assault against F.R. between September 1, 2005, and May 16, 2006; 5) assault causing bodily harm to D.M. between September 1 and 15, 2005; 6) uttering threats against F.R. between September 1, 2005 and May 16, 2006. [ 8 ] The complainants are three young boys between the ages of ten and eleven, who were students at the school where the appellant worked. [ 9 ] It is important to note at the outset that the respondent conceded during the hearing that the grounds upon which the conviction on count 6 was based are weak.

Indeed, the trial judge incorrectly reported statements made by the appellant during cross-examination and relied primarily on this part of his testimony to conclude that he had uttered threats. The statements actually made by the appellant, however, in no way constitute threats as defined by the Criminal Code . Moreover, contrary to what the judge claimed, the appellant firmly denied having made the statements that the prosecuting attorney attributed to him during cross-examination. In short, the trial judge committed a palpable and overriding error of fact that irreparably tainted the conviction on this count.

I will get back to this later, but first I will consider counts 1, 3, and 5. [ 10 ] In regard to these counts, the appellant raises several grounds of appeal, pursuant to which he claims that the trial judge failed to provide adequate reasons in support of his judgment, did not really consider the evidence presented by the defence, and rendered an unreasonable verdict. He adds two arguments related to the defences set out at sections 43 (correction of child by force) and 37 (preventing assault or legitimate defence) of the Criminal Code .

THE CONTEXT [ 11 ] During the 2005-2006 school year, the appellant worked as a special educator in an elementary school. [ 12 ] He was assigned to a class for children with behavioural problems, in which he assisted the teacher Johanne Archambault. His responsibilities included ensuring order and discipline and correcting the children’s behaviour. [ 13 ] He had acquired significant experience in this field in other institutions, whereas Ms. Archambault was in her first year of teaching. [ 14 ] I will now address each count, but in a different order than that set out in the indictment.

Count 5 [ 15 ] This count concerns a specific event involving D.M. that occurred in the first two weeks of September 2005. [ 16 ] D.M., who was thirteen years old at the time of the trial, arrived at school in the bus used to transport students with behavioural problems. This bus did not stop at the drop-off area like the buses that transported the other students, but rather at the school’s main entrance. [ 17 ] The vice-principal, Nathalie Couillard, saw D.M. as he got off the bus. He was talking to the appellant, who was also responsible for ensuring order in the schoolyard.

An argument broke out, and for a reason unknown to her at the time, the situation escalated, and the appellant used a physical time-out technique. She was surprised and heard the appellant say, [ translation ] “do you understand?”, and D.M. screaming [ translation] “let me go!”. D.M. calmed down quickly, and the appellant let go of him. Meanwhile, the other students headed to their classes. [ 18 ] D.M. claimed that he refused to obey the appellant because he was not his educator, and it was not his role to discipline him.

He stated that he did not want a [ translation] “wall time-out”, a disciplinary measure consisting of standing with one’s face to the wall.

He claimed to have put up a struggle when the appellant attempted to subdue him and added that the appellant put his knee on his stomach, which was somewhat painful. [ 19 ] Summarizing D.M.’s testimony, the trial judge stated that the appellant [ translation ] “twisted his arm behind his back and forced him to the ground”, which resulted in an injury to his shoulder; specifically, a scratch of approximately five centimetres, which was present for about three weeks and which has now turned into a scar. D.M.’s mother explained that [ translation ] “it was scratched as if he had rubbed himself on the asphalt”.

It was treated at school and then again at home, more particularly by applying alcohol. [ 20 ] Ms. Couillard did not think that the incident was sufficiently serious to warrant her intervention, even though she did not think that the situation was so dangerous that it justified the application of such force.

[ 21 ] She explained that physical interventions are sometimes necessary when a child is in crisis or refuses [ translation ] “systematically all of our requests”. She added that [ translation ] “at a certain point, we do not have any choice”, and it becomes necessary to use a physical time-out and even force the child to the ground, holding them by the arm to immobilize them until they calm down. She further explained that in some cases, two adults are required to restrain a child in crisis.

Essentially, this type of intervention is not prohibited but is reserved for situations that warrant it. [ 22 ] Moreover, a physical intervention may be followed by a period of isolation in the withdrawal room. The school’s intervention protocol provides, however, that putting a child in isolation should be used only as a last resort, when a student presents a high degree of dangerousness. [ 23 ] Ms. Couillard said that she does not object to the use of "wall time-outs", even when the student’s arm is raised behind his or her back, as the appellant would do.

Indeed, she saw him use this technique on a few occasions. [ 24 ] The appellant came to her office afterwards and explained that he had lost his patience. She told him that they would need to [ translation ] “go over the situation with the child” and discuss what had transpired during the incident. She therefore met D.M. with the appellant, and they both apologized to each other. She also said that she noticed a burn mark on D.M.’s shoulder, [ translation ] “probably caused by his sweater rubbing against his skin”.

Cream and a bandage were applied. [ 25 ] In his testimony, the appellant admitted to his actions but invoked the right to correct the child and the right to prevent an assault. He explained that he was responsible for supervising the schoolyard and that when D.M. got off the bus, he was agitated and quarrelling with other students. The appellant asked him to calm down and to stop [ translation ] “picking fights”, but he refused. The appellant then asked him to go inside the school, but again he refused. The appellant decided to move closer to D.M.

He specified that it was September, during the first few days of the school year, and that he was just starting at that school and did not yet know all the students. He had been warned, however, that some of them, including D.M., could become violent. [ 26 ] He saw [ translation ] “fire” in the eyes of D.M., whose hands were clenched. He was concerned by the situation. As D.M. had been violent in the past, he was told, he constituted a threat. He was worried that D.M. would lunge towards him and punch him.

He therefore grabbed D.M. before that could happen, raised his arm behind him, forced him to the ground, and let him go moments later, once D.M. had calmed down. [ 27 ] He then wanted to [ translation ] “go over the situation with the student”. A meeting was held in the principal’s office, and he apologized. He explained that it was common to apologize, even if one has acted appropriately, in order to maintain the relationship with the student.

He added that he was never involved in another incident with D.M. and did not wish to cause him any harm. [ 28 ] He also explained that the student’s weight is not a determinative factor, especially when the student is in crisis. In this regard, the training he received for intervening in response to aggressive behaviour ( ITCA [1] ) included the use of physical restraint as a recognized technique, and the related documentation stated that [ translation ] “working with clients who display aggressive behaviour is not easy”.

The documentation also indicated that [ translation ] “the reactions the worker may experience” include fear of being assaulted, concern for the safety of others, and the possibility of [ translation ] “overestimating the danger that the client represents”. I note that the trial judge did not address these issues despite their importance, in particular with respect to the right to prevent an assault, which the appellant specifically invoked in regard to this count.

Count 3 [ 29 ] According to the evidence presented by the prosecution, this count relates to both a specific incident involving F.R., which allegedly occurred in May of 2006, and a series of incidents, particularly the use of "wall time-outs", which the appellant admitted to using quite frequently. The use of techniques involving the twisting of F.R.’s arm in order to control him is also at issue. [ 30 ] According to F.R., who was eleven years old at the time of his testimony, the appellant disciplined him violently on several occasions, notably by twisting his arm.

He claimed that the appellant forcibly confined him by handcuffing him to a pipe in the basement of the school. The trial judge acquitted him of forcible confinement, however, noting the complainant’s dubious credibility. [ 31 ] The May incident occurred in the presence of Geneviève Gauthier, a social worker, and Patrice Lavallée, an educator. [ 32 ] Ms. Gauthier stated that she saw the appellant intervene with F.R. after he was expelled from class and was rude to the appellant. The appellant told F.R., who was clearly angry, to calm down, but F.R. continued to insult him.

The appellant took hold of his arm and forced him to the ground. Patrice Lavallée assisted him, and F.R. was taken to the withdrawal (or isolation) room, with his arm behind his back. In the room, F.R. became disruptive, yelling and screaming, but calmed down about two minutes later. [ 33 ] She thought that the appellant’s intervention went too far. Admittedly, F.R. was angry, but she did not think he posed a threat to anybody. She conceded, however, that F.R. would often [ TRANSLATION ] “explode”. She also admitted that she witnessed the use of physical time-outs at the reception centre.

What really struck her was the absence of intermediate measures or any gradation in the interventions used. She noted, however, that the appellant had told her that other techniques did not work with F.R. and that the school authorities had decided that he should be brought immediately to the withdrawal room, which necessarily required a physical intervention. [ 34 ] Patrice Lavallée had seventeen years of experience and confirmed his involvement in the May incident, when he helped the appellant get F.R. under control.

He explained that grabbing the arm behind the back made it easier to bring the child to the withdrawal room without incident. In cases of serious disruption, three or four adults are sometimes required to bring the child to the isolation room, even with elementary school children. [ 35 ] Moreover, Mr. Lavallée stated that the time-out involving forcing the child to the ground is a recognized and accepted technique. He added that F.R. could [ translation ] “exhibit quite disruptive behaviour”. He also noted that during the May incident, F.R.

was disturbed, [ translation ] “very threatening”, and [ translation] “ very aggressive”. [ 36 ] Isabelle Grondin, a special educator, testified that F.R. was in constant conflict with adults and regularly became disruptive. She also testified that it is possible for an educator to accidently injure a student during a physical intervention. This had happened to her in the past. She also explained that the training provided in the ITCA course included the use of time-out techniques. [ 37 ] Johanne Archambault, a teacher, also described F.R.’s difficult temperament.

He was almost [ translation ] “never in a condition to be at school”. For that reason, the school had decided that he should systematically be sent home for the slightest infraction, but the appellant wanted to try another approach, which was to try to keep him at school in the hope that his behaviour would improve. She added that F.R. had threatened her in the past and had even assaulted her by spitting in her face.

He had also threatened her or the appellant by saying that he would [ translation ] “stick an axe in your forehead”. [ 38 ] She explained that she was responsible for the educational aspect of the classroom, while the appellant took care of any behavioural problems. There were twelve children in her class, and she had no experience with this type of student. She found the appellant’s approach repressive, but she did not intervene, as he was the one with experience.

She was not familiar with the techniques used to place a child in a time-out or in isolation. [ 39 ] The appellant often used "wall time-outs", for example, when a student was impolite or refused to cooperate. The use of physical time-outs involving forcing the child to the ground was much less frequent. Thus, the appellant used this type of intervention with F.R. two or three times over the year at the most; however, she saw the appellant gain control over F.R. by putting his arm behind his back once or twice a week. [ 40 ] She said that she perceived a power struggle between F.R. and the appellant.

In fact, after the appellant’s departure following the complaints against him, the situation deteriorated to the point that F.R.’s attitude became intolerable. She said that [ translation ] “there was nothing left to do” and that F.R. [ translation ] “was patting himself on the back” because he had succeeded in getting rid of the appellant by calling the police. She testified that the situation had become unbearable and that she could not take it anymore. She said her [ translation ] “nerves were shot”.

She explained that [ translation ] “after two weeks of not having an educator and trying to manage my class as best I could, I remember I went out to the schoolyard and practically started crying”. Working in this type of setting is exceptionally demanding and difficult. [ 41 ] Ms. Couillard, for her part, stated that she saw the appellant force F.R. to do "wall time-outs" with his arm raised behind his back on two or three occasions.

She specified, however, with respect to the technique of raising the child’s arm, that [ translation ] “it wasn’t rough, you know; it was done gently, and the child was told to raise it higher”. She nevertheless wrote the appellant a letter on April 11, 2006, in which she advised him that in the future, [ translation ] “physical time-outs must be justified” and that [ translation] “wall time-outs in the hallway are to be replaced with the use of the chair”. [ 42 ] The appellant testified that he believed he was acting in the students’ best interests.

F.R., who the appellant states suffered from a serious anxiety disorder, was a special case. Considering his past behaviour, the school authorities decided that he should be sent home as soon as he did anything [ translation] “ out of line”. The appellant thought this was illogical and counterproductive and wanted to try to manage F.R.’s crises at school. Subsequently, he and Ms.

Archambault tried everything, but nothing worked; F.R. was for all intents and purposes uncontrollable. [ 43 ] He would use the arm hold against F.R. and L.L. (the other complainant) and "wall time-outs", with an arm behind the back, as control and time-out techniques. He had been taught these techniques during the ITCA course, and he had also used them in his previous employment. If a student refused a wall time-out and became agitated, the appellant would raise their arm so that they would cease resisting.

Obviously, the more the student resisted, the more painful this could become, such that it encouraged the child to calm down. The appellant specified, however, that his goal was not to inflict harm but to control the student to prevent the situation from escalating. [ 44 ] In regard to his intervention in May, he explained that he was speaking to Ms. Gauthier when F.R. was expelled from his classroom. F.R. was agitated, and the appellant asked him to calm down. F.R. insulted him repeatedly, and he had to intervene.

The school authorities and staff had already decided that F.R. should be brought immediately to the withdrawal room when he behaved in this manner, without attempting any other techniques. The appellant therefore asked F.R. to come with him and took him by the arm. F.R. resisted and said, [ translation ] “let me go or I’m going to hit you”. The appellant forced him to the ground with his arm behind his back, as he usually did in such circumstances. Patrice Lavallée came to assist him.

The appellant warned F.R. that [ translation ] “I’m going to let you up and we can carry on how you want, or we can go in the way that you don’t like”, by which he meant forcing him, which is what happened, thereby putting an end to the incident. Count 1 [ 45 ] The first count pertains to a series of incidents involving L.L., more specifically several physical time-outs conducted by the appellant and Patrice Lavallée.

L.L., who was ten years old at the time of these events, alleged that they would both [ translation ] “twist his arm behind his back all the way up to his head”, just because he was not following instructions. He alleged that the appellant would sometimes force him to the ground and immobilize him with his body weight until he calmed down. He claimed that on one occasion, the appellant threw him into a blackboard, causing an injury to his chin, and then placing him in an armlock to pick him up.

This is the incident underlying the second count, of which the appellant was acquitted after the trial judge found that there was no evidence of bodily injury. Finally, L.L. claimed to have been forced on numerous occasions to endure wall time-outs for one, two, and three hours at a time, and even for an entire day. [ 46 ] Ms. Archambault said that she witnessed only two physical time-outs involving L.L., and a certain number of arm holds. She also saw L.L. try to hit the appellant. [ 47 ] Patrice Lavallée testified that L.L. could also become significantly disruptive.

[48] For his part, the appellant gave roughly the same explanations as he did in regard to his interventions with F.R. THE TRIAL JUDGMENT [49] After summarizing the evidence and the applicable legal principles, the trial judge summarized the issues in dispute as follows: [translation] [99] The accused is alleged to have assaulted three students. He does not deny this but claims to be entitled to the justification set out atsection 43, referred to as the right to correct. He denies, however, having uttered threats against F.R. or having forcibly confined him. [50] He made no reference to

section 37 Cr C. [51] He then assessed the appellant’s testimony.

Without explanation and without providing any reason as to why he did not believehim, the judge stated: [translation] [100] The Court is thus faced with contradictory versions, and after having analyzed the accused’s testimony and all of the evidence, Ifind that even though I do not believe his testimony, he nevertheless raises a reasonable doubt in my mind in regard to the forcibleconfinement of which he is accused. [Emphasis added.] [52] The judge however added that the reasonable doubt in regard to the forcible confinement also arose from F.R.’s poor credibilityon this issue.

He noted that [translation] “F.R. exaggerated several aspects” and that some of his assertions rendered [translation] “histestimony unbelievable”.

He added that [translation] “we must be very careful with F.R.’s testimony as he has a tendency to exaggerate attimes”, and gave a few striking examples to illustrate this. [53] The judge stated that he nevertheless [translation] “found him to be credible and reliable in regard to several aspects of hisversion”, in particular with respect to the prevailing atmosphere of the school, the context surrounding the disciplinary measures, and theappellant’s aggressiveness. [54] Consequently, he accepted F.R.’s testimony in regard to the threats that the appellant allegedly uttered against him,notwithstanding his reservations with respect to his credibility. [55] He then addressed the application of

section 43 Cr C and dismissed the appellant’s submissions in this regard. He found that theappellant went too far in inflicting acts of violence on the complainants. It was a power struggle rather than an attempt to educate orcorrect the students. His conduct towards D.M. was also excessive and unreasonable, especially in view of the fact that D.M., like theother two, was small in stature, frail, and could not be considered an adolescent. [56] According to the judge, the treatment inflicted was degrading, humiliating, and incompatible with the objectives of correctionand discipline. Essentially, the appellant sought merely to punish D.M., which is prohibited by

section 43 Cr C. Moreover, Ms. Gauthierand Ms. Archambault both said that they thought the appellant’s conduct went too far.

The judge also noted that another teacher, Mr.Martin Séguin, testified that he did not use the armlock as an intervention technique. [57] The judge also criticized the appellant for acting out of anger, not following the school’s protocol, and not conducting himself ina more level-headed manner, for example by suggesting alternatives to the students or having a discussion with them to try to convincethem to stop disobeying, without resorting to violence.[2] The following is an extract of the judgment in this regard: [translation] It is also important to note that the accused was not following the intervention protocol when he used an armlock and forced the child tothe ground.

He should have tried to explain the situation to him, given him choices, and taken the time to help him understand that hehad to obey before resorting to the use of force. Moreover, there was no urgency, and he should have waited until they were two beforeproceeding. ... . [58] Finally, I must mention that the judge did not discuss the right to prevent assault, which the appellant, however, invoked inresponse to count 5. ANALYSIS [59] The witnesses’ versions are for the most

part consistent. This case turns more on the degree of force used and its justificationthan on the existence of the disciplinary measures. We must take a nuanced approach and consider the context and all of thecircumstances to rule on these issues. [60]

Section 43 Cr C provides the following: Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil orchild, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances. [61] In Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 , [2004] 1 SCR76, after noting that force may only be used for educative or corrective purposes, McLachlin C.J. stated that following at paragraphs 24

and 40: It [s. 43] admits into its sphere of immunity only sober, reasoned uses of force that address the actual behaviour of the child and aredesigned to restrain, control or express some symbolic disapproval of his or her behaviour. … When these considerations are taken together, a solid core of meaning emerges for “reasonable under the circumstances”, sufficient toestablish a zone in which discipline risks criminal sanction. Generally, s. 43 exempts from criminal sanction only minor corrective forceof a transitory and trifling nature.

On the basis of current expert consensus, it does not apply to corporal punishment of children undertwo or teenagers. Degrading, inhuman or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the headis unreasonable. Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, butnot merely as corporal punishment.

Coupled with the requirement that the conduct be corrective, which rules out conduct stemmingfrom the caregiver’s frustration, loss of temper or abusive personality, a consistent picture emerges of the area covered by s. 43. It iswrong for law enforcement officers or judges to apply their own subjective views of what is “reasonable under the circumstances”; thetest is objective. The question must be considered in context and in light of all the circumstances of the case.

The gravity of theprecipitating event is not relevant. [Emphasis added.] [62] Moreover, with respect to adolescents, the Chief Justice added the following at paragraph 46: This concern is addressed by Parliament’s decision to confine the exemption to reasonable correction, discussed above. Expertsconsistently indicate that force applied to a child too young to be capable of learning from physical correction is not corrective force. Similarly, current expert consensus indicates that corporal punishment of teenagers creates a serious risk of psychological harm:employing it would thus be unreasonable.

There may however be instances in which a parent or school teacher reasonably usescorrective force to restrain or remove an adolescent from a particular situation, falling short of corporal punishment.

Section 43 does notpermit force that cannot correct or is unreasonable. It follows that it is not overbroad. [63] In

summary, what is reasonable in some circumstances will not necessarily be reasonable in others, and vice-versa. [64] The appellant had a difficult job. All of the evidence, particularly the testimony of the teacher Ms. Archambault, amplydemonstrates this. Physical intervention techniques were considered acceptable in certain circumstances. The ITCA intervention protocolauthorized this type of intervention when warranted. The appellant, whose testimony was uncontradicted on this issue, was taught toconduct himself in the way that he did and had conducted himself in this manner in another centre.

Essentially, the circumstances of thiscase reveal a situation that cannot be compared to that of a regular classroom, and we must take this into consideration when assessingwhether the appellant’s conduct and interventions were reasonable. [65] With much respect for the trial judge, I am of the view that he neglected to consider the context and several important facts.Moreover, I am of the opinion that the conviction is, in some respects, unsupported by the evidence.

Reasons for judgment and rejection of the accused’s testimony [66] First, it is important to note that the trial judge stated that he did not believe the appellant, without providing any explanation forthis. [67] The scope of reasons and the requirement that reasons be given depend on the exigencies of the case, and a judge is not requiredto go over each piece of evidence in detail (R. v. Dinardo, 2008 SCC 24, [2008] 1 SCR 788, at para 26).

The judge must, however, takeall of the evidence into account and consider it in the context of the evidence as a whole. [68] A judge is not required to provide every detail of his or her analysis, but he or she must genuinely analyze the case’s issues. Inthis case, they included the appellant’s credibility and the reliability of his version, which should have been analyzed according to thevery specific context of this case and of his job.

Unfortunately, since the judge did not provide any reasons to explain why he did notbelieve the appellant, the Court is unable to confirm whether he took this context into consideration. [69] As Charron J. states in R. v. Dinardo, 2008 SCC 24 , [2008] 1 SCR 788: [31] As I explained at the outset of the analysis, the inquiry into the sufficiency of the reasons should be directed at whether the reasonsrespond to the case’s live issues.

In this case, the complainant’s truthfulness was very much a live issue — the trial judge recognized itas so during the voir dire to determine whether the complainant was competent to testify. At trial, two of the witnesses testified that thecomplainant could be untruthful and manipulative.

While it was open to the trial judge to conclude that he was convinced beyond areasonable doubt of the guilt of the accused, it was not open to him to do so without explaining how he reconciled the complainant’sinconsistent testimony, particularly in light of the accused’s own evidence denying her allegations. [70] There is no absolute rule, but the parties and the appellate court must at the very least have the opportunity to know why theaccused was convicted and whether there is a logical connection between the evidence and the law on the one hand, and the verdict onthe other (R. v.

R.E.M., 2008 SCC 51 , [2008] 3 SCR 3, at para 41). [71] Of course, the mere fact that the judge did not discuss the very specific circumstances of this case does not mean that he did notconsider them before ruling on the appellant’s credibility. His silence on the matter, however, considering that the entire case turned oncredibility and the analysis of the context, requires us to carefully examine the verdict and its reasonableness. A palpable and overriding error of fact in regard to count 6

[72] It is important to note that after dismissing the appellant’s testimony, the judge stated that he accepted an answer that theappellant had given during cross-examination in regard to the accusation of uttering threats. As I mentioned earlier, however, the answeraccepted by the judge was incorrect, and we must now explain how this part of the judgment came to be based on an error. [73] The judge stated: [translation] [114] … The accused, for his part, provided two versions in this regard.

First, he stated that his words during the intervention were[translation] “you’re lucky that you’re not older because you would slam into a wall” and then during cross-examination he said[translation] “you’re lucky you’re not older or I would shove you into the wall” (transcript 10:21:00 a.m. to 10:21:47 a.m.). [115] I am convinced that the appellant said that he would push him into the wall. This version is corroborated by Ms. Gauthier and isnot denied by the accused. … [74] First, Ms. Gauthier’s testimony was not that affirmative as she did not really remember the accused’s words.

Further, and mostimportantly, the appellant did not testify in the manner recounted by the judge, and he firmly denied making such a statement. [75] It is also important to note that F.R. was far from precise in regard to the threats, raising two possibilities, either [translation]“I’m going to shove you into a wall” or [translation] “if you were older, you would already have hit a wall”. [76] Let us now consider the appellant’s testimony, first in his examination: [translation] I said to him, [translation] “you’re lucky that you’re not older because you would hit a wall”.

That’s what I said to him. and during cross-examination, forty-five days later: [translation] A. … I said to F: [translation] you’re lucky that you’re not older because you would hit a wall”. … Q. OK. That didn’t work, so you don’t intervene, you don’t help him with his wall time-out that he wasn’t doing properly, and that’swhen you told him that he was lucky he wasn’t older or you would shove him into the wall? A.

No, that he would hit a wall. [77] Thus, not only did the appellant not say that he threatened to bash F.R.’s head into the wall, but it is also inaccurate to say thathe did not deny it. [78] It is true that a few minutes earlier the attorney for the prosecution involuntarily misled the appellant by maintaining in one ofher questions that the appellant testified that he had threatened F.R. in this way, to which the appellant answered [translation] “yes”. Histestimony as a whole, however, leaves no room for doubt. This last question confused him, and his answer did not reflect reality.

He hadin fact always claimed the contrary in his testimony, and the rest of his cross-examination demonstrated this convincingly. [79] By considering the appellant’s induced answer in isolation, the trial judge committed a palpable error of fact. It was alsooverriding, at least in regard to count 6, as it was the basis for the conviction. Moreover, the Court is certainly entitled to questionwhether this error was not also one of the bases for the judge’s rejection of the appellant’s testimony. As the judge did not explainhimself, this remains a possibility.

Failure to consider the right to prevent assault in regard to count 5 [80] By not considering this issue, the trial judge failed to assess one of the defences that the appellant had clearly invoked, not onlyin his testimony but also in his attorney’s pleading. The respondent replied that this was not determinative because, in any event, theappellant’s conduct was clearly disproportionate, and the evidence did not suggest that the objective aspect of the defence would havebeen satisfied. [81] Admittedly, on its face, without taking into consideration the evidence as a whole, this defence may appear surprising.

Theevidence, however, is not as clear as the respondent claims. I believe that I have demonstrated that D.M.’s situation and thecircumstances of the case do not allow us to dismiss this defence out of hand. I am therefore of the opinion that the judge committed anerror of law by not considering the issue, thereby depriving the appellant of a defence that could have met the air of reality threshold,which imposes a burden that is merely evidential (R. v. Cinous, 2002 SCC 29 , [2002] 2 SCR 3). Without ruling on the validityof this defence, it seems to me that the judge should have considered it.

As he did not do so, the appellant was deprived of a full answerand defence. [82] Moreover, since this type of analysis requires an assessment of the witnesses’ credibility, including in regard to the appellant’ssubjective beliefs, I am of the opinion that a new trial should be ordered on count 5, as opposed to the other counts, which I will addressbelow. Due to the nature of the intervention,[3] the time and place where it occurred, as well as its consequences on D.M., I believe thatthis count is distinguishable from the others and should not be subject to a final decision on appeal.

I find that a trial judge should havethe opportunity to examine all of the evidence, including that presented in regard to the two grounds of defence set out at sections 43 and37 Cr C, in order to determine whether the prosecution will be able to meet its burden.

Counts 1 and 3 [83] In regard to the other incidents involving F.R. and L.L. (counts 1 and 3), I find the verdict unreasonable as it is unsupported bythe evidence. [84] First, according to the evidence, the conduct in question would be acceptable if justified by the circumstances. The trial judgeacknowledged this: [translation] In certain circumstances, the use of an armlock and forcing a student to the ground may be reasonable … . [85] The evidence is deficient in regard to these circumstances. All we know is that the appellant conducted himself as he alwayshad, in the way he had been taught.

This is uncontradicted. Even the principal, Ms. Couillard, and the teacher, Ms. Archambault, had noobjection, at least until April in Ms. Couillard’s case. They were perhaps uncomfortable with the appellant’s conduct and the techniqueshe used, but this does not turn them into criminal acts. [86] By saying that most of those involved, i.e. Ms. Gauthier and Ms. Archambault, did not use these techniques, and in basinghimself on their testimony, the trial judge did not take into consideration the limitations of their testimony. Ms. Gauthier is a socialworker and had been to the school only twice.

Nothing suggested that she had the expertise required to give her opinion on interventionsin response to aggressive behaviour. Ms. Archambault, for her part, did not assert that the force used was excessive but that sheconsidered the appellant’s approach to be harsh and that he was quick to react, although she was incapable of controlling her class on herown.

In my opinion, in view of all the circumstances, these testimonies constitute an insufficient basis on which to conclude that theappellant used unreasonable force with the students. [87] Moreover, paragraph 123 of the judgment, which I mentioned earlier and in which the trial judge criticized the appellant’sconduct,[4] is also unsupported by the evidence. There is no expert evidence to support such criticism or on which to base suchhypotheses.

Moreover, the lack of expert evidence to counter the testimonies supporting the fact that physical interventions aresometimes warranted constitutes a significant weakness in the prosecution’s evidence. Indeed, the Court cannot take judicial notice of theproper intervention techniques to be used in the circumstances of this case and notes that it may at times be necessary to defer to expertevidence, especially in exceptional cases such as this one (Canadian Foundation for Children, Youth and the Law v.

Canada (AttorneyGeneral), supra. [88] Moreover, the judge also committed an error at paragraph 121 when he referred to the conduct of the appellant as one thatallegedly consisted of [translation] “repeatedly throwing the complainants to the ground in front of the entire class”. The evidence doesnot support this assertion. The witnesses made no mention of such conduct, with the possible exception of L.L., in describing the totallyunbelievable incident during which the appellant allegedly threw him into the blackboard and then picked him up using an armlock, anincident that nobody else saw. [89] In

summary, the evidence does not support the conclusion that the appellant’s techniques were, in and of themselves,unacceptable. The prosecution was required to establish the circumstances that rendered them unreasonable in order to conclude thatsection 43 did not excuse the appellant.

This was not done, and the evidence is, to say the least, vague and imprecise in regard to theincidents during which armlocks and "wall time-outs" were used in a manner that was, according to the prosecution, disproportionate tothe point of constituting unjustifiable assault, notwithstanding the right to correct. [90] Moreover, it is worth repeating that the judge himself noted that these techniques could be justified in certain circumstances.

Ido not see how the evidence demonstrates that they were not justified in this case, especially considering that F.R.’s and L.L.’scredibility were seriously undermined, as I will outline below. [91] With respect to the specific May 2006 incident, the evidence does not support the appellant’s guilt. It is important to bear inmind F.R.’s behaviour, as described by the witnesses, which provides an explanation for the appellant’s conduct. It is also important toconsider F.R.’s lack of credibility, as the trial judge concluded for that matter.

F.R.’s and L.L.’s credibility [92] After having demonstrated and explained why F.R. could not be believed in regard to the forcible confinement, the descriptionof which was contradicted by all of the evidence, the judge nevertheless accepted his testimony in regard to the assault. Need we pointout that, according to the judge’s conclusions, F.R. has a tendency to exaggerate, if not lie. The judge did not explain why, despite this,he considered F.R.’s version to be sufficiently reliable to form the basis of the conviction.

The fact that it was confirmed by otherevidence is not sufficient because, other than the May incident, he is the only one able to describe the circumstances in which theimpugned incidents took place. The judge was required to take the inconsistencies of his testimony into account and address itsdiscrepancies and contradictions, not only in regard to the forcible confinement, but also with respect to the assault charge (R. v.Wittman, 2006 QCCA 1131 , [2006] JQ No 11240 (CA)). [93] With respect to L.L., the judge drew no conclusions in regard to his credibility, which was, however, clearly at issue.

Forexample, the appellant was criticized for having acted too roughly in raising L.L.’s arm behind his back ([translation] “up to his head”according to L.L.). Yet, nobody else described such conduct. Moreover, Ms. Couillard said that the appellant actually asked the studentto raise his arm himself and, as I mentioned earlier, that [translation] “It wasn’t rough; it was done gently”. [94] In

summary, only F.R. and L.L. could testify as to the pain they experienced, if any, and as to whether the appellant’s conductwas unreasonable. All of the evidence, however, demonstrates that they are not reliable and that it was in their interests to testify againstthe appellant. Ms. Archambault astutely described how F.R. appeared smug after the appellant’s departure further to his complaint. Inthe circumstances, how can we accept his testimony, especially after noting his tendency to exaggerate?

[ 95 ] To conclude on this point, I will illustrate F.R.’s and L.L.’s lack of credibility. [ 96 ] Thus, despite the fact that this was entirely contradicted by the evidence, F.R. stated that: the appellant would twist his arm up to eight times a day; it once took six adults to control him, and they [ translation] “ ran at him” for no reason; he did not boast about the appellant’s dismissal; while being led in handcuffs by the appellant to the basement where he was forcibly confined, he passed three school workers, who did nothing; the appellant tortured a student named C. in the basement; and the appellant was stealing meals from some of the students. [ 97 ] L.L., for his part, claimed that: the appellant would raise his arm behind his back up to his head; the appellant employed physical time-outs with him as often as two or three times a day; the appellant threw him against a blackboard, as noted above; and the appellant subjected F.R. to five or ten physical time-outs a day. [ 98 ] An appellate court must ensure that a conviction is based on a reasonable

interpretation of the evidence, without substituting its own opinion for that of the trial judge simply for the reason that it would have interpreted the evidence differently . Moreover, if the witnesses’ credibility is at issue, the appellate court must also verify whether the trial judge took into consideration the weaknesses in the evidence. In my opinion, such an analysis should have inevitably resulted in an acquittal on counts 1 and 3. The evidence could not reasonably support any other conclusion. CONCLUSION [ 99 ] For these reasons, I would allow the appeal, direct a judgment of acquittal to be entered on counts 1, 3, and 6, and order a new trial on count 5. FRANÇOIS DOYON, J.A.