HER MAJESTY THE QUEEN — v. —, 2020 ONCJ 619

ONTARIO COURT OF JUSTICE CITATION : R. v. Hume , 2020 ONCJ 619 DATE : 2020 12 22 BETWEEN: HER MAJESTY THE QUEEN — AND — SEAN HUME Before Justice S.R.. CLARK Heard on December 16, 17, 18 & 19 2020 & October 6, 7, 8 & 9, 2020 Reasons for Judgment released on December 22, 2020 Ms. Brigid McCallum ............................................................................... counsel for the Crown Mr. Michael Caroline (December 2019)....................... counsel for the defendant Sean Hume Ms. Robin Parker (October, 2020 to present)............. counsel for the defendant Sean Hume CLARK, S.R.

J.: 1.0 Introduction [ 1 ] This is a case about whether the defendant, an elementary school principal, was justified in his attempts to calm and restrain a 9- year-old grade four male student who was demonstrating disruptive behaviour in the schoolyard during the lunch period on September 19, 2018, or did he act in anger and assault the child? [ 2 ] The offence of assault is defined in s.265 of the Criminal Code as the intentional application of force to another person, directly or indirectly, without the consent of that person. [ 3 ] This broad definition standing alone would make criminal, any mild or moderate forms of physical discipline. [ 4 ] This case also raises the issue of whether s.43 of the Code, regarding use of force for the correction of a child is applicable.

This provides that every school teacher, parent, or person standing in the place of a parent, is justified in using force by way of correction toward a student or a child who is under his care, if the force does not exceed what is reasonable under the circumstances. [ 5 ] This case also illustrates the challenges and complexities in having to reconcile the competing interests of allowing educational discipline against actions that may attract criminal liability. [ 6 ] At the outset, I wish to point out that nothing has gone particularly smoothly in this case.

The first challenge was in the trial not having been completed last December, 2019. Next, defence counsel, unfortunately, became ill to the point where he could not continue with the case in February, 2020. [ 7 ] New counsel was then retained. Next, the trial was unable to continue for several months due to the notorious Covid pandemic. All the evidence was finally completed in October. Submissions were made by counsel in November. Judgment was reserved to today’s date, December 22, 2020.

[8] That said, the overarching mandate of the court to maintain trial fairness has otherwise been carefully preserved. I am grateful toMs. McCallum and Ms. Parker, two very competent and well-prepared counsel in this regard. 2.0 The Main Issues [9] At its core, there are two issues to decide in this case. First, were the defendant’s actions for the purpose of correcting thechild? Second, were they reasonable under the circumstances? [10] Both Issues must be resolved favourably in order to make out the defence.

Put more appropriately, the onus is on the Crown tonegative both elements of s.43 beyond a reasonable doubt. 3.0 The Legal Framework [11] Regarding the issue of correction, the actions must have been intended to be for educative or corrective purposes, that is, to securecompliance with instruction or direction. Furthermore, the child must be capable of benefiting from the educational value, meaning hewas capable of appreciating its purpose. The purpose may be considered from the viewpoint of both the child and the educator.

There isno definition in the Criminal Code as to what correction is, other than to make sure, one could argue, that it is not motivated byarbitrariness or capriciousness. In other words, correction is countenanced by the law because it is for the benefit of the child’seducation. S.43, therefore, is a justification. It exculpates one who uses force because it considers such an action not a wrongful, butrightful one, (R. v.

Ogg-Moss, (SCC), [1984] 2 S.C.R. 173, par. 51). [12] Thus, only minor force of a transitory and trifling nature that results in neither harm or the prospect of bodily harm is exempt fromcriminal sanction. [13] The gravity of the precipitating event is not relevant, as this would place the focus on punishment of the child and not correction. [14] As a general statement, one should not have to fear criminal sanctions for appropriately correcting a child regarding such things asstealing, lying, mocking or ridiculing others, or disruptive behaviour. [15] Regarding the issue of reasonableness, the degree of force used to instill honesty, respect for the property of others, respect forother people, and orderly conduct cannot exceed what is appropriate in the circumstances.

Thus, it is unacceptable when it breachesrules which, upon objective scrutiny are untenable, or indefensible. Note however, that the reference to “in the circumstances” alsopermits some element of subjectivity to be considered. [16] In framing the analysis, it may be helpful to identify a non-exhaustive list of what would not be considered as reasonable.

Suchmatters as degrading, inhuman, or harmful conduct, corporal punishment such as slaps or blows to the head, discipline by the use ofobjects, and conduct stemming from loss of temper or abusive personality are obvious scenarios over which there would likely be nodisagreement. [17] The s.43 defence has been the subject of significant debate and controversy. What is important is that it should not be used as a“shield” to legitimize child abuse, or to “sanitize” or condone violence against children. Rather, it must be a genuine and honest effort.

Conduct cannot be at once reasonable, and an outrage or shock to standards of decency. [18] Each case, of course, turns on its own facts. 4.0 Background [19] The public school where the incident took place was one of two in the City of Toronto at the time which implemented the outdoorplay and learn program at recess and lunch, where students of all grades and ages are integrated and encouraged to make use of variousitems placed in the schoolyard, such as pots, pans, shovels, and tires. It allows for open-ended risky play, but is designed to develop thestudents’ conflict resolution skills.

Various items were placed in the junior playground area of the yard, but all students could use/playwith them as long as it was safe to do so. It also required “active super​vision” with teachers and other support staff assigned to be in thefield with the children. [20] The complainant, L.S. (hereinafter referred to as L.) was starting grade 4. He had been at the school since the age of 4.

Hishistory of behaviours was well-documented. [21] To his credit, he acknowledged in his statement to the police that he had clinical and anger issues and would lose control bylashing out sometimes and hitting people and that once he was in this state he could not stop himself, and someone would have to do it. He further indicated that if someone came at him he would just stare at them, but if they got closer he would hit them.

It is not in disputethat L. was a “high need/high mainten​ance” child. [22] This is no way a criticism of L. who when not subject to his clinical triggers was, as one of his teachers described, a “sweet littleboy”, and as his best friend stated, a “fun kid once you got to know him”. [23] The defendant has had 25 years of experience as an educator, 8 of which were as a vice-principal at this school, and now in his 5th year as principal there. He had no previous direct disciplinary involvement with L.

5.0 The Concerns of L.’s Parents [ 24 ] Both parents testified in this trial. Out of obvious concern for their son, questions were raised about whether the school was doing enough to prevent his outbursts, and if a student safety plan, a crisis response document, was created when his behaviour became elevated. L’s mother met with the defendant in late August, 2018, and presented a medical letter and requested that an individual education plan be prepared, and a psychoeducational assessment be conducted.

According to the parents, however, they did not receive assurances from the defendant that these would be provided. [ 25 ] The defendant was managing their expectations. He did not decline the request outright but tried to allay their concerns, reassuring them that L. was in a safe and caring environment. [ 26 ] I must say that there is little that I can do with his information. I would not go so far as to say it was a “red herring” or completely irrelevant, but just merely part of the history of the events and narrative.

My decision is not based on whether or not there was a safety plan in place. [ 27 ] Nothing turns on this, in my respectful view, as it relates to evaluating the credibility or reliability of the defendant. [ 28 ] Without sounding patronizing, I commend L.’s parents for their realistic and balanced efforts in attempting to advance their son’s interests, and who, despite their significant parenting skills we’re likely close to their wits’ end and searching for meaningful professional and educational help.

They otherwise presented themselves admirably in this trial. [ 29 ] It is also interesting to note that during the first week of the school year in September, L.’s mother told the defendant that he was on a new medication and that the side effects created an anxiety in him quickly resulting in L. having difficulty controlling his body and emotions, and that one would have to hold him in a hugging position from behind so he could not kick.

She added that L. would not like it, but this would be effective because it would not hurt him or the adult holding him. 6.0 The Incident [ 30 ] The defendant’s and L.’s testimony about the incident are in direct conflict. They give two irreconcilable versions of the events. Some of this conflict can be attributable to individual perception and to memory lapse, and some of it cannot be as easily explained. 6.1 The Defendant’s Evidence [ 31 ] During the third week of school, on September 19, L. was in the schoolyard with several other children. The defendant was alerted to a disturbance.

L. had apparently been in a fight, or at least had been arguing with an older student and was still angry. He approached L., who started yelling profanities, spitting and throwing various objects on the playground property at or in the direction of him. He believed that L. was in crisis and spoke to him calmly in an effort to divert him from engaging with other students.

He explained that he was trying to keep L.’s attention on him because he had concerns for the safety of other students in the yard, some of whom were much younger. [ 32 ] Accordingly, he tried to invite or redirect L. to come into the school office. While he was trying to avoid being hit by what L. was throwing at him, he used his cell phone to call the school office. He asked one of the secretaries to contact L.’s parents, and if unable to reach them, to call police. [ 33 ] At this point he looked around the yard to see if there was another adult to assist him but did not see anyone.

He also thought that it was now time to move the other children out of harm’s way. He was trying to ensure that he continued to be L.’s target as opposed to the other children. Although he did not recall the exact order or sequence of events, he described that he was doing his best to keep L at arm’s length. He was moving his hands in front of him so that L. would keep looking at him. There were times where L. would move away toward other students [ 34 ] He explained that when he approached L. in the schoolyard, he said words to the effect “what’s wrong, you need to calm down”.

He could see that he. was frustrated, but he did not want to make a “small” thing into a “big” thing. He just tried to verbally de-escalate as best he could. [ 35 ] He was not angry and did not yell at L. He described that he used a voice softer than conversational. Unfortunately, his efforts had no effect other than to have L. continue to yell, scream and threaten him with the things that he was throwing.

He stated that he was shocked by L.’s behaviour and that it was like nothing he had ever seen in his 25 year of teaching, and a total of 34 years of working with youth. [ 36 ] At one point he heard one of the lunchroom supervisors, Georgia, telling the children in the yard to get back and that it was not safe. [ 37 ] At some other point a teacher, Mr. Feldman, came on duty. [ 38 ] After what he believed was 30 or 40 minutes, he then tried to circle around to go behind L. in an effort to execute a rear restraint. He was unable to follow through with this. He described that L. was very strong.

In the course of this he grabbed L.’s neck in the shoulder area. L. dropped to the ground, but he did not push him. This part of the incident lasted approximately 4 to 5 seconds.

[ 39 ] L. then grabbed the defendant’s leg. He did not want to fall on L. and freed his leg from his grasp. He looked for a place on the ground to plant his foot to avoid further contact with him.

It is his position that any contact with L. with his foot was not intentional but more defensive in nature. [ 40 ] In all, the defendant testified that he only grabbed but did not strike L., kick him, place his knees on his stomach, or apply personal violence to him in anyway. 6.2 The Evidence of L. [ 41 ] L.’s version of the events is that the defendant approached him and told him to go to the office and sounded “pissed”. He refused to go. The defendant first pinned him to the fence. He shoved him back. He started to swear but the defendant swore back at him. The defendant made everyone get off the field.

He started throwing stuff at the defendant and was swearing a lot. The defendant then pinned him to the ground. He described it as a push from the back. When he was on the ground, he felt like he couldn’t breathe. He felt a knee on his stomach for at least a minute. It was painful. He grabbed the defendant’s leg. [ 42 ] The defendant put his shoes on him. He told the authorities that the mark on his right arm was because the defendant stepped on him. His friend, J.M. was there too and was yelling “stop the child abuse”. Also, during the incident, Georgia was making sure no one came on the field.

He told the authorities that it is not a good thing for teachers to get involved. He just wanted to be left alone and would calm down on his own. He understood that the school has to get involved to end a dispute, but it doesn’t mean the principal has to assault him. He did grab the defendant’s leg, but the defendant stomped on him leaving a foot mark on his arm. 6.3 The Evidence of J.M . [ 43 ] He was L.’s best friend who was present in the schoolyard during the incident. In his statement to the police he indicated that mostly, L. was attacking the defendant who was grabbing to get L. to stop attacking him.

The defendant did hold onto L., but not to hurt him. He was just trying to calm him down. He could see the defendant struggling but did not remember how he got hurt. The defendant was not asking for help but telling teachers to keep kids off the field and to get out of the way. In his view, the defendant was just defending himself. 6.4 The Evidence of Kathryn Weinman [ 44 ] Ms. Weinman, one of the teachers at the school, just happened to be looking out of her second-floor classroom window as the situation was unfolding. She was concerned, as it looked to her “like a fight”.

She felt uncomfortable and that “something was not right”. Although she observed that L. appeared to be clearly out of control, it seemed like the defendant was almost egging him on. [ 45 ] Accordingly, she recorded three short cell phone videos of the incident, which were entered as exhibits. She described that it was a “hard thing to watch”. The first clip showed L. throwing objects from the schoolyard playground at the defendant. The second clip depicts L. spitting at or in the direction of the defendant’s face.

Within seconds, the defendant then went behind L. and appeared to grab or hold him by the back of his neck or shoulder area and then push him to the ground. He then appeared to stomp on L.’s arm and try to remove his leg from his grip. The third clip showed L.’s father, who had been contacted by someone in the school office, arriving on scene and walking his son away. The total time for the 3 videos was 2 minutes and 33 seconds. [ 46 ] She acknowledged that she did not capture all that had happened. She did not know what started the incident or how L. ended up on the ground at first.

She also acknowledged that she did not see the defendant strike or slap L. at any time, but saw what appeared to be him kicking L., although at the time it also looked like L. was trying to grab the defendant’s leg. The defendant was trying to get his leg free by kicking or stomping with the other leg or foot. She acknowledged that L. was going after the defendant and that he would back up. There was a lot of “back and forth”. The defendant had L.’s shoes on his hands.

When asked if the defendant was doing anything other than defending himself, she stated that generally, at times he was, but at other times he would walk after L. , as if to pick a fight, when it looked like it could have been over. To her, it did not look like the defendant was trying to restrain L. but was pushing him down and then holding him down with the shoes still in his hands. 6.5 The Evidence of Caleb Feldman [ 47 ] Mr. Feldman, another one of the teachers came into the school yard. He noticed Georgia, the lunchroom monitor motioning with her hands for him to come over.

He saw L. in an agitated state and pacing a bit. In an effort to calm him down and defuse the situation he heard the defendant say words to the effect, “what’s going on buddy?”, but L. barely acknowledged him. Mr. Feldman was asked by him to clear the students off the field. The defendant told him L.’s father was on his way and that L. was beyond talking to. He observed L. screaming, swearing, panting and using racial epithets. At one-point L. lunged at the defendant and spit on him and made a sweeping karate kick at him.

The defendant was holding his arms up in a shielding manner with one foot up in a protective way to give L. space. L.’s facial expression was like something he had never seen before, like he was on drugs. His face looked like it was going to explode. It was a complete meltdown. He was so focussed on the defendant. He described that that it was sad and frightening at the same time. He also stated that he was used to seeing kids upset, but this was like one on adrenaline who seemed capable of anything.

He heard the defendant repeat to L. that his dad was on his way, telling him to stop, and that there was no point in continuing with this. He described that the defendant’s tone was not loud, but it was a combination of being annoyed and frustrated because L. was not stopping and was not to be reasoned with. However, it did not come across as angry. He explained that he was never frightened or fearful for the defendant’s life at any time, although he felt that he was under attack and that there was definitely the potential for him to get hurt.

He described that the children in the schoolyard seemed more fascinated by what was going on but not frightened. A group of

the older children were almost celebrating and getting a “kick” out of this, that a student was “going after” a principal. He believed that approximately 100 students were nearby. [ 48 ] On cross-examination, he indicated that, in general, teachers try to avoid the use of physical restraints with students and only as a last resort. In this situation he explained that it if he had the “luxury” he would have waited for other teachers to come to assist, but that this was a dynamic situation.

When asked what might trigger the use of restraint, he cited an obvious example if someone picked up a cement block and was about to smash it on a child’s leg, this could result in serious injury or one’s life being at risk. He stated however, that it is hard to know where to draw the line. He agreed that it would require using the least amount of force possible, but one might not have time to be as careful and to match the right amount. He added that this is the theoretical versus the real.

He believed that this part of the incident lasted for approximately 15 minutes before L.’s father arrived. 7.0 The Burden of Proof and the Evaluation of the Evidence [ 49 ] Proof beyond a reasonable doubt involves a very high degree of certainty. Criminal cases are not like civil cases, decided simply on the basis of what more likely than not occurred. I would not have to actually believe the defendant to be left in a state of reasonable doubt, and even if I reject the defence evidence at every level, that is not the end of the case.

I must always bear in mind that my ultimate obligation is to step back, look at the record as a whole, and consider all the frailties and weaknesses attaching to the various pieces of evidence that make it up. Having done so, I must determine if the quality of the evidence is such that it makes out the elements of the offense to this threshold. Even if I believe the defendant is probably guilty, or likely guilty, this would still not be sufficient. [ 50 ] The essence of the analysis, therefore, is that the defendant’s evidence does not have to be believed to secure an acquittal.

There need only be reasonable doubt as to guilt. The Crown’s evidence, by contrast does have to be believed to secure a conviction, and the court must also exclude reasonable doubt. [ 51 ] Any judgment and supporting reasons does not always provide a definitive answer for everything that may have happened on the day in question. A criminal trial cannot provide all the answers Sometimes, the best one can do is to establish that much is unclear and uncertain. [ 52 ] What is important is not to choose between the two sides or shift the onus to the defendant.

It requires a credibility assessment, not a credibility contest. [ 53 ] Assessing credibility and reliability is not a science.

Whereas credibility relates to sincerity or honesty, reliability generally relates to the testimonial factors of perception, memory, and communication. [ 54 ] Other factors may include the consistency of the evidence within itself, the consistency of the evidence with the evidence of others, the objectivity of a witness’s evidence, the frankness of the witness, and whether there was a tendency to overstate, exaggerate, or embellish. [ 55 ] The court is also entitled to consider the demeanor, or manner in giving the evidence including but not limited to such factors as whether the witness was hesitant, argumentative, or forthcoming and straightforward.

Note, however, that no case can be decided solely on this basis.

Demeanor is but one of many factors to consider. [ 56 ] The court must also be careful not to apply a more strict standard or level of scrutiny to the testimony of the defendant than that used to evaluate the evidence of the complainant, or other witnesses for the prosecution. [ 57 ] Most important, the analysis endeavours to avoid committing an error in accepting the testimony of a possibly unreliable complainant or rejecting the testimony of a not so obviously unreliable accused. [ 58 ] There is also a new sensitivity to the particular perspectives of a child.

The testimony of a child witness is to be understood with an eye to common sense, as exactitude and detail may be missing from their recall because their world is experienced differently from an adult. [ 59 ] Credibility and reliability must be assessed, therefore, by reference to criteria appropriate to a child’s mental development, understanding, and ability to communicate.

Whatever enlightened approach is taken respecting a child’s ability to perceive and recall, the standard of proof, however, cannot be reduced below that of cases involving adults. 8.0 The Positions of the Parties 8.1 The Crown [ 60 ] The thrust of the Crown’s position is that the actions of the defendant were excessive in the circumstances when dealing with this very vulnerable child. They were neither corrective in nature nor were they reasonable. Therefore, s.43 should have no application. L. was not capable of correction.

He was in the middle of a complete meltdown or fugue state and was unresponsive at the time the force was applied. He could not understand nor appreciate the purpose to be able to learn from it. This dissociative state means that he could not benefit from any attempt at correction. The defence cannot extend the idea of correction to an absurd level by saying that it had educational value to other students who were nearby in the schoolyard. There is no case which stands for this proposition.

The Crown submits, therefore, that one cannot punish a child who does not understand so that other children can be corrected. [ 61 ] S.43 requires calculated and considered action in order to be reasonable. The defendant should have just done nothing and waited

for help which was on the way, and for L. to run out of energy. Instead, he rushed into this. What he did was unnecessary and degrading. This was not a “hug” or restraint, but a grabbing by the neck and throwing or forcing L. to the ground.

Although it is acknowledged that the standard is not so high that it requires an individual to measure his actions to a nicety, the defendant did not use only the mildest form of force. [ 62 ] The Crown leaves it up to the court to decide, on the evidence, if the mark on L.’s arm came from the defendant’s shoe. [ 63 ] Applying the W.D. analysis, the Crown submits that the defendant should not be believed, nor should his evidence raise a reasonable doubt. He was not a reliable witness. He exaggerated when he indicated that the incident lasted for up to 40 minutes.

He overstated that L.’s actions were a threat or danger to all 500 students at the school also. He was also evasive about whether he knew of L.’s classroom issues. His evidence was internally inconsistent. It made no sense for him to say that he would not have received L.’s safety plan because it was the responsibility of the vice principal, and yet, he was the one who was dealing directly with L.’s parents in this regard. [ 64 ] There was a more important inconsistency.

When he testified in December 2019, he explained that L. just went down to the ground of his own volition, but then, on cross-examination acknowledged that he did touch L. by attempting to restrain him although it was not intentional. Then, in October 2020, he acknowledged that his actions were intentional. [ 65 ] The third branch of the W.D. framework requires the court to accept the evidence of the prosecution witnesses. The court should find that L. did not exaggerate.

Although somewhat withdrawn when testifying, and using some colourful language, he was otherwise engaged and had a specific and accurate memory of the incident which was confirmed, in large measure, by the testimony of Ms. Weinman, and certainly the video clips. 8.2 The Defence [ 66 ] The defence submits all that is needed is to find reasonable doubt on the totality, of the evidence that s.43 does not apply. Counsel asks the court, however, to not only find reasonable doubt, but no doubt at all, and that the defendant is factually, and therefore legally innocent of the charge [ 67 ] He used a calm voice.

He tried to keep things “small”. He tried to call for L.’s parents and even the police. He was out of options and merely tried the rear restraint technique. In hindsight, there could, of course, always be other options. It should be noted that any action by the defendant was at the end of L.’s behaviour. He ended it after an extended period due to exigent circumstances. [ 68 ] Furthermore, counsel submits that it cannot be the law, as the Crown contends, that because the defendant knew about L.’s mental health issues that s.43 could not apply.

Otherwise, one could argue that L.’s parents, who had to try the same techniques would also be open to criminal liability. [ 69 ] Counsel also submits that the Crown has not proven beyond a reasonable doubt that the defendant was not trying a corrective restraint, although unsuccessful. L. went to the ground because he accidentally lost his balance, not because the defendant intentionally put him there. [ 70 ] It is also important to note that this is not a discipline case. Rather, the defendant was attempting to secure compliance by talking to L. and trying to calm him down.

It may not have been perfect, but it was certainly not criminal. He may have been frustrated, but not angry. Note also that the defendant tried the very things that L.’s parents had suggested, and that the restrain and hold technique is also permissible under TDSB policy. [ 71 ] Counsel also submits that the Crown is in error in suggesting that there could be no educational or corrective purpose that L. could appreciate or benefit from. First of all, there was no evidence called by the Crown to show that L. would not be capable or receptive.

Furthermore, the caselaw supports the proposition that the correction of others is included in a s. 43 defence. It is not unrealistic at all to suggest that the number of children who were present in the schoolyard witnessing this incident could not be “educated”. [ 72 ] What is important is that the defendant had exhausted all efforts to talk first before resorting to any physical action, and only did so as a last resort. [ 73 ] The court should have no difficulty in accepting the defendant’s evidence as credible and reliable.

The Crown suggests that he exaggerated stating that there were 500 students in the school yard. This is not material. The point is, a significant number of students were close by. It is not about the actual number, but his perception and whether it was reasonable. His focus was on L. for obvious reasons. Furthermore, he did not exaggerate by stating that this was a dangerous situation for other students.

Also, the length of time, approximately 40 minutes, was clearly just an estimate and more of a feeling. [ 74 ] Most important, there was nothing inconsistent about the defendant’s testimony given in December 2019 and again in October 2020. As for the Crown’s argument that his evidence was internally inconsistent, note that he testified in December 2019 without the benefit of having seen the video clips, and without having been fully prepared by his former counsel. His evidence in chief from December until October, therefore, was evolving, but was always consistent. There was just more detail provided.

This is the context in which the court should consider any inconsistencies. [ 75 ] In

summary, counsel asks the court to find as is a fact that the defendant held onto L. in an effort to effect a rear restraint, but otherwise did not push him to the ground. Furthermore, there is no proof that the shoe mark on L.’s arm came from him. The mark was described as a “cleat”, but the sole of the defendant’s shoe, which was made an exhibit, was dissimilar. [ 76 ] Finally, the court should note that any injury to L. was only in the nature of a minor mark on his arm. Counsel asks the court to

find that at no time did the defendant put his knee on L.’s stomach or otherwise kick him. 9.0 Findings of Fact [77] On all the evidence, I find the following facts: 1. The defendant did not swear at L. 2. He did intentionally grab L. in the neck/shoulder area in an attempt to effect a rear restraint but did not intentionally push him to the ground. 3. He did not stomp on L. Any contact made by his foot was not intentional. 4. The shoe mark on L.’s arm was not the defendant’s. 5. The defendant did not have his knee(

s) on L.’s stomach. 10.0 The Principles Applied 10.1 Were the Defendant’s Actions for the Purpose of Correcting the Child? [78] I find that the defendant was entitled to use this type of restraint. L. was in need of intervention and protection from his owndisruptive behaviour. The defendant was entitled to intervene and even express symbolic disapproval. [79] Even if there was a very human dimension of frustration, or even a form of anger attached to some part of his overall actions,anger and correction are not mutually exclusive concepts.

It is unrealistic to assume that parents and educators may discipline children,whatever the nature of the infraction, in a state of detached calm. Anger is part and parcel of correction. (see R. v. Irvine, [2003] O.J.No. 5940, at par. 23, which cites these propositions from an earlier case R. v. P. (D.C.), [1995] O.J. No. 1366 (page 15). [80] What is important, is not whether the defendant was upset, distraught, frustrated, annoyed, or even angry, but whether he was incontrol of his anger or emotions, at the relevant time. [81] I find that the defendant was in control.

Any level of emotion was not so elevated to the point where the intention or desire ofcorrection was abandoned or no longer central to the focus of his efforts. [82] He was entitled to use the force he did because L. posed a safety risk to himself, the defendant, and other students. [83] What is clear from the evidence is that L. was not going to stop which is why the defendant decided to end it. He was out of de-escalation options. As stated in R. v Swan, (ON SC), [2008] O.J. No.975, at par. 19, his “toolbox” was empty. [84] Paragraphs 23 and 24 of Swan are also instructive.

The concept of being capable of benefitting from the correction is not to begiven too narrow an

interpretation. The child may not immediately respond to correction. As an example, in Swan, the father of ateenage girl grabbed her and placed her into his truck to prevent her from going off with a boyfriend who was abusive. The court heldthat the purpose of the correction was to return her to a safe environment. The fact that the benefit of the correction is not directly visibledoes not mean that s.43 is not applicable. [85] Thus, the positive benefit or consequence of correction is not always immediately obvious in children.

The evidence in thepresent case, which I accept, is that L. would have to return to school the next day or at some point and experience a form of “time out”correction while educational deliberations about him continued.

He was capable of appreciating this. [86] I also accept the defendant’s testimony that despite the opinion of suspension of L. being raised by others, he was at no time, evenat the moment of the incident, considering this is a viable option because, as he put it, L. needed help and support, not discipline orpunishment. [87] In short, I find the defendant’s actions were not for an improper purpose or to advance his own wants and desires (see R. v.Storey, 2004 Carswell Ont. 667 at par. 22) 10.2 Were the Defendant’s Actions Reasonable Under the Circumstances? [88] This is not a question of law, but of fact and degree.

[89] The ordinary dictionary meaning of reasonable suggests something in accordance with sound judgement, rational, sensible, fair,just, or moderate. In other words, it requires the existence of justification, transparency, and intelligibility within the decision-makingprocess. [90] I have located a passage in the case of R. v. Poulin (2002), 2002 PESCTD 68 , 169 C.C.C. (3d) 378, which was nottendered by either counsel, but which assists me in determining what is reasonable.

Ordinarily, when the court refers to, or relies on acase that counsel are not aware of, the proper and fair procedure would be to provide the case to them and give them an opportunity tomake further submissions on it. However, I only rely on paragraph 32 which should not be controversial. In any event, I do not wish todelay my decision in this case any further. [91] The proposition is that it is inherent in matters where judgement is involved that there will be situations and opinions over whichreasonable minds can differ.

Within a range or band, individuals can come to different and even opposite conclusions without one beingunreasonable. The standard of review is not whether one was right, wrong, or mistaken regarding the force used. Not every reasonableexercise of judgement is right, and not every mistaken exercise of judgment is unreasonable, as long as the action falls within the band ofreasonableness. [92] Put another way, the question is, do the actions fall within a range of possible outcomes which are defensible in respect of thefacts and law? This does not give rise to a single correct answer.

Rather, a range of reasonable decisions may be made, and this rangemay be more or less broad, depending on a number of considerations in all of the circumstances. The test of reasonableness, therefore,accords a degree of latitude, because judgement and discernment are involved. [93] Reasonableness, within the ambit of s.43 does not mean that one has to have taken the best or wisest course of action. Of course,with the benefit of the near-perfect vision of hindsight, the defendant could have just done nothing and waited for L. to tire himself out,in which case this unfortunate incident might never have occurred.

This is not the same thing, however, as finding that the actions of thedefendant were unreasonable. [94] I respectfully disagree with the Crown’s characterization that the defendant rushed into this. In fact, the restraint he showed overa very extended period of time, which could easily have “felt” like 30 or 40 minutes, is commendable. [95] I also find that the degree of force used in grabbing L. in the neck/shoulder area was not excessive in all circumstances.

It wastransitory and trifling within the range of reasonable actions, considering this part of the overall incident took place over a matter of 4 or5 seconds. [96] What gives me comfort about the objective reasonableness is the testimony of Mr. Feldman, who on cross-examination conveyedthat he was glad he didn’t have to be in this position because he was not sure how he would have reacted, and that at the time thedefendant did the best he could under the circumstances in trying to control the situation.

He added words to the effect “it’s hard toassess from the theory to what one does in the moment”. [97] I am completely comfortable as well in finding that there was no collusion between the defendant and Mr. Feldman, whom I findwas an unbiased and neutral party who gave his evidence independently. I have no lingering concerns that he was merely trying to“protect” the defendant. 11.0 Conclusions [98] I have considered the written as well as oral submissions of both counsel, and all the cases tendered for my consideration. [99] I have also carefully considered L.’s version of events.

I find that I cannot accept his evidence that the defendant shoved him tothe ground, or kneeled on his stomach with both knees, or stepped on his arm and would not get off. I assure him, and his parents, thathe is not the “bad guy” in this unfortunate incident. However, I do not find his account to be particularly reliable. I note that even hisfather stated that when L. was in this state his memory is “compromised”.

Even taking into account the way in which I am to evaluate achild’s evidence, I find that L.’s capacity for observation, and subsequent recollection to be inconsistent with the preponderance ofevidence, not only from the defendant, but from J.M. and Mr.

Feldman. [100] To the extent that the credibility assessment demands a search for confirmatory evidence for the testimony of the complainant,such evidence need not directly implicate the defendant, but should at least restore faith in the integrity of relevant aspects of his account. [101] The court is quite mindful of the “damning” parts of the video clips, which partially align with L.’s version. Videos, likephotographs, are often described in trials as the “silent witnesses”.

That said, I find that they do not account for everything that wastaking place in the schoolyard at the time. [102] I have also considered the evidence of Ms. Weinman. I find that she did not hold out any animus, meaning ill-will toward thedefendant when she described the incident the way she did. I note that she also got her camera and took photos because she explainedthat this is something that one would not expect to see between a principal and a student. I find, however, that her

interpretation andperception of what was happening, does not accord with everything that was happening, “on the ground”, so to speak. [103] On the other hand, I do accept the evidence of the defendant. I believe him. I find that he was transparent in describing hisefforts. He wanted the school secretary to call the parents and even the police. This shows that he was not interested in taking the lawinto his own hands and was completely open to scrutiny. I accept his evidence that, to him, L. was crying out for help. [104] I also accept that he was not trying to hurt L, but that he wanted to bring his actions to a stop. He did not taunt or otherwise egg

him on. [ 105 ] Furthermore, I find that the defendant did not tailor his evidence to merely fit the desired narrative. He did not minimize his actions. He was an impressive and thoughtful witness. [ 106 ] I also find that there were no material inconsistencies in his evidence from December, 2019, to October, 2020. Inconsistencies on minor matters or matters of detail are normal and to be expected. However, where they involve material matters about which an honest witness is unlikely to be mistaken, these can demonstrate a carelessness with the truth.

I do not find this to be so in his case. [ 107 ] In the final analysis, I find that the defendant, although understandably frustrated, was attempting a “controlled”, rather than in “out of control” way to restrain L.

He did not rush into this, as the Crown has submitted. [ 108 ] The obvious takeaway from this unfortunate occurrence is that an educator has a heavy and onerous responsibility to be extremely careful before imposing any form of physical contact with a student and where no other reasonable options are available. [ 109 ] I am quite sure that the defendant has had many regrets since having been charged. [ 110 ] He does not, however, need to also regret a criminal finding of guilt. 12.0 The Judgment [ 111 ] On the whole of the evidence, I find that the defendant has demonstrated that he used both corrective and reasonable force under all of the circumstances.

Put another way, I find that the Crown has not proven beyond a reasonable doubt that s. 43 of the Criminal Code does not apply. [ 112 ] Accordingly, I find the defendant not guilty Released: December 22, 2020 Signed: Justice S.R. CLARK