R. v. Bender, 2023 ONCJ 569

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(2.1 ) of the Criminal Code .

These subsections and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(2.1 ) , read as follows: 486.4 (2.1 ) Victim under 18 — Other offences — Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) Mandatory order on application — In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (

a) as soon as feasible, inform the victim of their right to make an application for the order; and (

b) on application of the victim or the prosecutor, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. Bender , 2023 ONCJ 569 DATE: December 20, 2023 BETWEEN: HIS MAJESTY THE KING — AND — ROBERT BENDER Before Justice Berg JUDGEMENT Released on December 20, 2023 A. Fitzpatrick....................................................................................... counsel for the Crown A. Furgiuele................................................................................................... for the defendant

Berg J.: [ 1 ] It is alleged that Robert Bender committed a common assault on M.S. The Crown elected to proceed by way of

summary conviction. The offence date was particularized on the information as the period from September 8 to December 7, 2020. However, the evidence that I heard relates only to that last day: December 7. Evidence [ 2 ] Mr. Bender is an elementary school educator. At the time of these allegations, he was the teacher of a Grade 3 class of students with significant behavioral problems. The class was part of the Ottawa Carleton District School Board’s Behavioral Intervention Program . M.S. was one of the students in that class. He was seven or eight years old at the time. Mr.

Bender had been M.S.’s teacher during Grade 2 as well. [ 3 ] M.S.’s father, J.S. testified at this trial and provided me with important background information about his son. M.S. is a high- needs child. He has received a diagnosis of autism spectrum disorder. Mr. J.S. advised that that diagnosis has been further refined to a sub-category of the spectrum: pathological demand avoidance (PDA). If I have understood the evidence correctly, PDA is not a diagnosis that has general acceptance in Canada. However, this does not detract from the fact that M.S.’s behaviour could be challenging.

As a result, the educators developed a Behavioral Management Plan (BMP) that mandated when and what physical force could be used on M.S. The Crown led evidence explaining what was acceptable and not acceptable as per the BMP. [ 4 ] I think it important to point out at the onset that while I understand the need for a BMP in the context of a classroom, and that while non-adherence to a BMP by an educator may violate the policies of a school board and thus possibly require professional disciplinary action by that board, a BMP does not define what is criminally assaultive behaviour.

The only authorities for what constitutes an assault are the common-law and the Criminal Code . [ 5 ] Mr. J.S. senior advised the court that M.S., who is now 11 years old, is attending Grade 6 in a mainstream academic program. However, at the time of the present allegations, his behaviours could be much more difficult, going so far on occasion as to be assaultive of other children as well as his parents and his brother. Mr. J.S. noted that he and his wife would attempt to intervene quickly in a non- physical manner when M.S. would act out at home, but they were not always successful. Sometimes, Mr.

J.S. would have to put M.S. in what I will here describe as a bear-hug until he had calmed down. On some occasions, upon being put in a bear-hug by his father, M.S. would try to head butt him and would scratch at his father’s arms. The bear-hug would usually have to be in place for a minute, but could be required rarely for up to an hour. Mr. J.S. described M.S.’s behaviour in the fall of 2020 as more challenging than the previous school year.

As the father explained, there was an increase in dysregulated behaviour by M.S. ‘Dysregulation’, a word I heard often during this trial, appears to be the term preferred by educators for what otherwise might be called acting out. [ 6 ] On December 7, Mr. J.S. received a telephone call from the school principal who advised that there had been an incident in the class. He went to pick his son up at the school at some point between noon and 2:00 p.m.

He described M.S. as being somewhat sullen but he had not gone non-verbal, as would occur at times when he had been dysregulated, and was not crying. [ 7 ] I turn now to the evidence of the three other witnesses called by the Crown. Unlike the father, these three individuals were all present at the school on December 7. I will state at the outset that I have not been asked to find that any of them were not credible, a submission with which I am in complete agreement.

That being said, one quickly comes to the conclusion that reliability, on the other hand, is very much in play here. [ 8 ] The first of these witnesses was Heidi Joly. Ms. Joly works for the School Board on an Autism and Developmental Disabilities Team. She is not stationed at a given school but functions as an itinerant support worker for various children in different schools. M.S. was one such child. She would attend his class once per week for an hour or two.

She described M.S. as frequently displaying very dysregulated behaviour that year with frequent outbursts of swearing, screaming, and sometimes kicking the door. She was aware that he had physically injured students in the past. A significant part of Ms. Joly’s testimony was taken up with explaining the physical techniques to control a student that the School Board had determined are permissible. I will merely remark once again that non- compliance with the School Board’s directives does not necessarily turn a teacher’s actions into a criminal assault. [ 9 ] Ms. Joly described the set-up of the class.

M.S. had his desk at the back of the room near the door. There were 5-7 other pupils, all with behavioral issues. Next to the classroom was another room used to calm students when needed. Ms. Joly referred to it as the “Oasis”. She testified that M.S. spent a lot of time there. The actual teaching, however, was conducted by Mr. Bender in the classroom proper. The teacher’s desk was in the front left corner of the room. [ 10 ] On December 7, Ms. Joly was present in the classroom for her regular weekly visit.

When she arrived, M.S. was in the Oasis with one of the two educational assistants, Shari Fisher, so she joined them there. M.S. seemed calm. She remained with M.S. and Ms. Fisher for roughly 45 minutes. M.S. then indicated that he was ready to go into the classroom and the three of them then went there. Mr. Bender was at the front of the class reading to the other children. M.S. went towards his desk some 3 or 4 feet from the door; Ms. Joly stood just inside the classroom. M.S. was calm. She testified that the defendant then looked at M.S. and stated “You are not ready to come back”.

As a result, M.S. became agitated and began to pace back and forth, gave the finger to and swore at a student whom he did not like. That other student responded in kind. The student in question was on the other side of the classroom. Ms. Joly testified that one of the educational assistants, Emma Arsenault, then stated to Mr. Bender and the other assistant, Ms. Fisher, that they should evacuate the classroom, a technique used to diffuse a situation whereby the other children would be led out of the class leaving just the child whose behaviour was becoming problematic. It was her evidence that at that point, Mr.

Bender stated “No, M.S. can leave.” [ 11 ] At this point, M.S. was still pacing at the back of the classroom while the defendant was at the front; the classroom is roughly 30’ long by 19’ wide. Ms. Joly then described Mr. Bender crossing over to the back of the room with an angry expression on his face, taking M.S. by the wrist and dragging him out of the classroom while Ms. Fisher was standing by M.S.’s desk. She was not sure where the other assistant was situated at that point. She was certain that it had been Mr.

Bender who had crossed over to the back of the room and that it had not been M.S. who went to the front. M.S. went limp as he was being dragged. She basically described his feet as being pulled across the floor. She estimated that M.S. was dragged approximately 9 feet. As he was dragging M.S., Mr. Bender stated to Ms.

Joly who was standing at the door that he had to guide the child out of the class to which she responded that what he was doing was not guiding; the evidence before me is that ‘guiding’ has a very specific meaning at the School Board. Mr. Bender continued dragging M.S. out of the room and Ms. Joly followed. She observed the teacher release M.S.’s wrist and saw the boy go to the floor and then stand up. Mr. Bender returned inside the class and closed the door behind him. M.S. then began to kick at the door and scream. He eventually calmed down and then went to the Oasis-room.

She testified that she had remained outside the classroom after Mr. Bender went back inside and that she did not leave there until M.S. had calmed down and gone to the Oasis. Ms. Joly described herself as being very upset by what she had just observed. She sent messages to the school principal and her own supervisor and then went out to her car to sit and compose herself. She had a telephone conversation with her supervisor and then went back inside the school and formally reported the incident to the principal. [ 12 ] Ms. Joly’s evidence was that at the moment Mr.

Bender grabbed M.S.’s wrist, the boy was still being disruptive but was not a risk to himself or anyone else. She could not recall M.S. having hit or attempting to hit another child. As we shall see, this and many other parts of Ms. Joly’s testimony are not supported by the balance of the evidence that I heard at this trial. In fact, much of what she told the court was contradicted by the other two witnesses’ evidence. I note that Mr. Furgiuele put a series of Browne and Dunn questions to Ms. Joly concerning the contradictory evidence that he anticipated would be adduced through other witnesses, for example: Ms.

Fisher had not been working with M.S. that day and had not been in the classroom at the time of the incident, that M.S. had been aggressive with other children at the material time and that Ms. Arsenault had asked Mr. Bender for assistance in gaining control over M.S., that M.S. had walked up to the front of the class, etc. [ 13 ] The next witness was Shari Fisher, one of the two educational assistants who were assigned to the class. She described a setting different than that testified to by Ms. Joly. There was the main classroom, which Ms. Fisher referred to as the Learning Tree.

There was another classroom called the Paradise Room and then a small middle room which was referred to as the Oasis. [ 14 ] She was of the opinion that Mr. Bender and M.S. did not have a great relationship. She testified that there were times when M.S. would not listen and Mr. Bender would become “threatening.” Ms. Fisher gave examples of this ‘threatening’: “I will call your dad” and “I will take the game away”.

Section 264.1 Criminal Code is clearly not engaged here. [ 15 ] She testified that in the fall of 2020, M.S. was having a difficult time at school. She explained that when he became dysregulated, M.S. would begin pacing, then commence swearing, then escalate to physical aggression against other students and staff and would also throw objects. She testified that M.S. could go from 0-100 quickly. When she would observe him beginning to dysregulate in class, she would try to remove him to another room.

She explained the techniques that she would use and stated that she should not touch him unless he was being aggressive or hurting someone. [ 16 ] Ms. Fisher testified that she was at work on December 7. She got M.S. from his mother who had brought him to school and then took him into the classroom; it was possible that she had first taken him into the Paradise room beforehand but she was not certain at the time she testified. Ms. Joly was in the classroom as was the defendant, Ms. Arsenault, M.S., and the other children.

One of those children, not M.S., became dysregulated and she took that child to the Paradise room. When she left the classroom, M.S. had been calm and the adults that I have just listed still there. It was her evidence that contrary to what Ms. Joly had told the Court, she had not been present when Mr. Bender allegedly assaulted M.S. In fact, she testified that Ms. Joly had come to see her in the Paradise room after the incident to tell her what had happened. [ 17 ] The last Crown witness was the other educational assistant, Emma Arsenault.

She recounted that the students in the 2020/2021 class were quite difficult. She did not feel that Mr. Bender had a good relationship with M.S. The example she used was there were times when M.S. asked to rejoin the class after being excluded and Ms. Arsenault felt he was ready, but Mr. Bender would sometimes refuse to allow him to do so. [ 18 ] Turning to the alleged events of December 7. Ms. Arseneault was working in the classroom when M.S. was brought in by Ms. Fisher at the start of the school day. He then sat at his desk near the door at the back of the class and Ms. Fisher sat with him. He was calm. Mr.

Bender was already in the classroom as was Ms. Joly. At some point, another student became dysregulated and Ms. Fisher left M.S. and took that student to another room. Once Ms. Fisher had left, M.S. stood up and began to pace at the back of the room. Ms. Arsenault had observed M.S. display this type of behaviour before and so decided to keep an eye on him because, she explained, he might dysregulate further and approach other students. She walked with him, keeping close. This went on for roughly 30 seconds. [ 19 ] While M.S. was pacing at the back of the room, Mr. Bender was talking with Ms.

Joly at the front and the other pupils were doing activities at their desks. There is no evidence before me from which I can infer that Mr. Bender was aware of what M.S. was doing at the back of the room. Suddenly, M.S. walked to the front left of the class, made a fist with one hand, and approached another student who was at their desk. Ms. Arsenault remained at the back of the class. M.S. was not saying anything but the witness told the court that M.S. would not say anything when he went into crisis. Ms.

Arsenault could not recall how close M.S. got to the other child, however, she was concerned enough that she asked for help by calling out “Mr. Bender, will you please help me.” I note that it was never explained to me why she did not go after M.S. when he walked to the front especially given her concerns about his potential behaviours at that point. She may have moved forward a bit, but it is clear that she did not follow him all the way to the front despite having walked with him while he was pacing at the back.

I note as well that during cross-examination, she agreed that she had told the police during a formal interview on June 14, 2021, that she had believed M.S. was going to punch another child and that for about a minute, “I tried to kind of block him away from the other kids” before calling out to Mr. Bender for assistance. She had been struck by M.S. in the past and testified that she could not always control him on her own. She was aware that he had struck other children in the past as well. [ 20 ] Ms. Arsenault testified that Mr.

Bender appeared to hear what she had said and walked two or three steps over to where M.S. was near the other student’s desk and grabbed M.S.’s wrist with one hand. In other words, he had been standing very close to M.S. when Ms. Arsenault had called out for his help. Mr. Bender then lifted M.S.’s wrist sufficiently that the boy’s centre of gravity was raised. However, M.S.’s feet did not leave the ground. Mr. Bender looked angry but, according to Ms. Arsenault’s initial evidence, did not say anything.

Then, during cross-examination, she seemed to suddenly remember that he had said “It is time for you to leave” when he took ahold of M.S.’s wrist.

[ 21 ] Mr. Bender walked four quick steps towards the back of the room still holding onto M.S.’s wrist. As a result, M.S.’s feet were dragged the distance. M.S. did not say anything. At that point, Ms. Arsenault called out to Mr. Bender “You need to stop and evacuate the room.” She explained that she said this because she felt that Mr. Bender was being aggressive and she felt concerned about M.S.’s safety. Mr. Bender released his hold of M.S.’s wrist at that point and responded “Well, I guess we have to evacuate the room now.” During all of this, Ms. Arsenault did not hear Ms. Joly say anything. According to Ms.

Arsenault, Ms. Joly remained at the front of the classroom and did not follow her and M.S. out of the class. [ 22 ] Ms. Arsenault’s evidence concerning the distance that Mr. Bender dragged M.S. was confused. She initially testified that he had taken four steps. She was taken in cross-examination to her police statement and accepted that she had told the investigating officer that it had been “kind of the full length of the classroom.

So I would say five or six steps.” Oddly, she then testified that it could have been from one to six steps but then, in re-direct, returned to the answer she had given Detective Archibald on June 14, 2021 in her police statement. It is clear to me that Ms. Arsenault cannot say with any exactitude the number of steps that Mr. Bender dragged M.S. However, I must remark that as the classroom was roughly 30 feet in length, even six steps would not be sufficient to cover “the full length of the classroom.” Mr. Bender took M.S.’s wrist somewhere near the front of the class but not right at the wall.

He then moved M.S. to somewhere near the back of the classroom but not out of it. Ms. Arsenault did not see him take many steps. I am unable to assign an exact number but five would seem to be in keeping with the general tone of her evidence. [ 23 ] Once his wrist was released, M.S. sank to the floor and stayed there for two seconds. He then got up and ran out of the classroom. Ms. Arsenault followed M.S. out into the hallway closing the door behind her. M.S. was in tears, red in the face and crying loudly.

He started to hit her and, as a result, she used the walkie-talkie that each staff member was equipped with to call for help. Despite help arriving, M.S. continued to act out violently for an hour or two and, if I have understood the evidence correctly, at one point went back into the classroom and tried to hit the other student. On that occasion, Ms. Arsenault was able to keep the two pupils apart. [ 24 ] The defence called no evidence. Finding of Facts [ 25 ] Ms. Joly’s evidence is so unreliable that I cannot give it any weight. Ms. Fisher was not present during the incident. I accept Ms.

Arsenault’s evidence as to what acts occurred as she was both credible and reliable. However, that is not to say that I adopt her

interpretation of the acts that she witnessed. First of all, I find that her view that Mr. Bender’s behaviour was ‘aggressive’ is predicated on what actions were acceptable to School Board policies and the Behavioral Management Plan. Secondly, I find that Ms. Arsenault tended to minimize the potential for harm posed by M.S. that day when he was acting out, being aggressive, or, as seems to be the preferred term of the witnesses, dysregulated. Ms. Arsenault testified in chief that M.S. had not hit anyone or tried to do so before Mr. Bender grabbed his wrist.

Clearly, however, she was very concerned that he would do just that at the moment she called out for help. In fact, she stated exactly that in a response during cross-examination. This is not to blame the child or criminalize his behaviours. However, jargon is not helpful to the Court when trying to understand what was going on in the classroom at the material time. [ 26 ] I find the following facts: a. For reasons unrelated to the actions of Mr. Bender, M.S. became upset and began to act out. At the point that he walked to the front of the classroom, Ms.

Arsenault became concerned that he was about to attack another child and called out to Mr. Bender. She did not attempt at that point to restrain M.S. herself but remained at or towards the back of the class. b. At the moment that she called out “Mr. Bender, will you please help me,” the defendant had been standing at the front of the class talking with Ms. Joly. He seems to have been unaware of what was going on at the back of the class. He and Ms. Joly were standing very close to the other student who appeared to be M.S.’s target and whom M.S. had approached. c.

Now aware of the risk M.S. posed to the other child, Mr. Bender took two or three steps and grabbed M.S.’s wrist, raised the boy’s arm thereby raising his centre of gravity and pulled him approximately five steps away from the other child towards the back of the classroom. He then released M.S.’s arm. d. M.S. sank to the ground and then got up and ran out of the class where, it seems, he acted out violently for an extended period of time. By the time his father came to collect him, however, he was sullen but not otherwise displaying problematic behaviours. e.

Some three years later, M.S. is attending Grade 6 in a mainstream academic program. In other words, he is no longer in a specialized class for pupils with behavioral issues. Relevant Law and Statute [ 27 ] It is not disputed that Mr. Bender grabbed M.S. by the wrist and pulled him away from the other child.

The issue before me is whether that application of force was justified. [ 28 ] We are thus dealing with s. 43 Criminal Code which reads: 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, …, who is under his care, if the force does not exceed what is reasonable under the circumstances.

In effect, the Crown here has to prove that the force applied by the accused to the pupil was not by way of correction or that the corrective force exceeded what was reasonable in the circumstances. [ 29 ] The leading case in this context is the decision of the Supreme Court of Canada in Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General) 2004 SCC 4 . The majority decision was given by the then Chief Justice McLachlin. When reviewing s. 43 , she stated the following with respect to what is meant by ‘the term ‘by way of correction’.

23 I turn first to the requirement that the force be “by way of correction”. These words, considered in conjunction with the cases, yieldtwo limitations on the content of the protected sphere of conduct. 24 First, the person applying the force must have intended it to be for educative or corrective purposes: Ogg-Moss, supra, at p. 193. Accordingly, s. 43 cannot exculpate outbursts of violence against a child motivated by anger or animated by frustration.

It admits into itssphere of immunity only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, controlor express some symbolic disapproval of his or her behaviour. The purpose of the force must always be the education or discipline of thechild: Ogg-Moss, supra, at p. 193. 25 Second, the child must be capable of benefiting from the correction. This requires the capacity to learn and the possibility ofsuccessful correction.

Force against children under two cannot be corrective, since on the evidence they are incapable of understandingwhy they are hit (trial decision (2000), (ON SC), 49 O.R. (3d) 662, at para. 17). A child may also be incapable oflearning from the application of force because of disability or some other contextual factor.

In these cases, force will not be “corrective”and will not fall within the sphere of immunity provided by s. 43. [30] With respect to the Supreme Court’s requirement that the corrective action cannot be ‘motivated by anger or animated byfrustration’, it has remarked that it is unrealistic to assume that parents may discipline their children, whatever the nature of the infraction, in a state of detached calm. Anger is part and parcel of correction of the child.

What is relevant is not whether the parent was upset, distraught, frustrated, annoyed orangry, but whether the parent is in control of his or her anger or emotions. R. v. T.I., [2003] O.J. No. 5940 (Ont. C.J.). See, as well, R. v. B.S., (ON SC), R. v. Hume, 2020 ONCJ 619. Thus, the presence of a strong emotion does not necessarily deny an accused recourse to s. 43. [31] As the Supreme Court stated, “the child must be capable of benefiting from the correction.” This capacity issue was explained inR. v. B.S., by the Ontario

Summary Conviction Appeal Court. [23] The concept of “being capable of benefiting from the correction” is broad. The Supreme Court of Canada referred to that conceptin connection with cognitive or learning capabilities. The facts of R. v. Ogg-Moss, (SCC), [1984] 2 S.C.R. 173 werereferenced by McLachlin C.J. to illustrate that the capability of a child to benefit from correction must be considered in determiningwhether a s. 43 defence can succeed.

In Ogg-Moss, a counselor of mentally challenged adults in a residential setting admittedly struck atwenty-three year old resident in his care on the forehead with a large metal spoon to punish him for spilling milk. The counselor knewthe resident would be incapable of remembering the alleged corrective force five minutes later because of the resident’s level of mentalincapacity.

No evidence suggested the Child in this case suffered from such difficulty. [24] The fact that a child will not immediately respond to correction or that the benefit of the correction is not directly visible does notmean that s. 43 is inapplicable. A positive benefit or consequence of correction is not always immediately obvious in children. [32] Later in Canadian Foundation for Children, the Chief Justice turned to what is meant by the term ‘reasonable under thecircumstances.

First of all, she pointed out at paragraph 30 that s. 43 does not provide a defence for conduct that causes harm or raises areasonable prospect of such and stated “[t]his limits its operation to the mildest forms of assault.” She then summarized (at paragraph 40)as follows: 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. Analysis [33] Were Mr. Bender’s actions by way of correction?

He had been unaware of what was going on with M.S. Ms. Arsenault had notintervened when M.S. moved towards the other child. She had called for help as it seemed that M.S. was going to assault that other child.Mr. Bender acted quickly to prevent that assault by grabbing M.S.’s wrist and pulling him away from his apparently intended target. Mr.Bender had little time to recognize what was going on and obviously his immediate concern was the safety of the other child.

Time wasof the essence and the fact that the School Board prohibits or disapproves of the grabbing of a student does not render the defendant’sactions here punitive as opposed to corrective. [34] Ms. Fitzpatrick asks me to find that Mr. Bender’s actions were motivated by anger and/or frustration. Thus, his grabbing of M.S.was punitive and retaliatory and Mr. Bender does not have recourse to a s. 43 defence. I disagree. While there is some evidence beforeme that Mr.

Bender looked angry, that is not the same as saying that his applying force to M.S. was motivated by anger and the evidencebefore me does not support a finding that Mr. Bender had lost control of his emotions. It is clear that Mr. Bender actions here were inreaction to a situation that had been brought suddenly to his attention and which required immediate action to protect another child.Moreover, the application of force was of short duration, caused no injury, and stopped as soon as M.S. had been removed from thevicinity of the other child. I see nothing punitive in M.S. being released from Mr.

Bender’s grip inside the class. Indeed, on the present

facts, it could be argued that it would have been punitive or excessive to have pulled him into the corridor; five steps having been sufficient to negate the danger to the other child. [ 35 ] The Crown submits that M.S. was incapable of benefiting from corrective force at that time. With respect, not only is there no evidence to suggest that that was the case, there is evidence upon which I find that he did have the capacity to learn from correction. For example, M.S. is presently in the regular stream in Grade 6.

The test is not whether M.S. was able to learn from corrective force at the very moment of its application. [ 36 ] I find that the application of force to M.S. by Mr. Bender was by way of correction. I turn now to the second part of the test in Canadian Foundation for Children; did the corrective force exceed what was reasonable in the circumstances? The application of force by grabbing M.S.’s wrist was at the lower end of the scale and is to be characterized as minor corrective force of a transitory and trifling nature. I find as well that it was reasonable for Mr. Bender to pull M.S. away from the other child.

While it is true that M.S. would not have been able to strike the other child with the arm being grasped by the defendant, M.S. had his other arm with which he could punch and his legs with which he could kick. He had to be moved away from his target. Mr. Bender did so and then released him approximately five steps away. Mr. Bender’s action were, I find, reasonable in the circumstances. Conclusion [ 37 ] I find that Mr. Bender’s actions on December 7, 2020 were by way of correction and also reasonable in the circumstances.

As his actions were thus justified under s. 43 Criminal Code , I find that the Crown has not proven the case against him beyond a reasonable doubt and I will dismiss the charge. Released: December 20, 2023 Signed: Justice Berg