An assault charge against Grade 3 teacher Robert Bender was dismissed in an Ontario court Dec. 20. Bender taught at Ottawa Carleton District School Board’s Behavioral Intervention Program and was accused of assaulting an autistic child, who was seven or eight at the time.
Justice David Berg dismissed the charge against Bender saying, “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.”
The Crown had argued that the student, called M. S. in the judge’s written decision, was incapable of benefiting from corrective force at the 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,” Prosecutor Anne Fitzpatrick told the court. “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.”
Justice Berg found that during the trial there were several contradictory versions of the incident. There is a publication ban on the name of the child and the witnesses.
At the time of the incident, court heard that Bender was teaching in front of the class and the child became agitated, pacing back and forth at the back of the classroom. The child would pace, swear, and sometimes getting physically aggressive against other students or staff when he would become agitated.
An educational assistant testified that staff would try to move M.S. to another room during these times but wouldn’t touch him unless he was hurting someone and being aggressive.
In this incident, the educational assistant feared M. S. was going to attack another student so she called for help from Bender.
At this point, Bender took two or three steps and grabbed the boy’s wrist, raised his arm, thus his centre of gravity. He pulled him approximately five steps away from the other child and towards the back of the classroom, wrote Justice Berg.
Once the boy’s wrist was released, M.S. sank to the floor for about two seconds before getting up and running out of the classroom. The educational assistant followed him into the hallway, closing the door behind. The boy was in tears, red in the face and crying loudly. Court heard that he started to hit the educational assistant so she used the walkie-talkie all staff member are equipped with to call for help. After help arrived, M.S. continued to act out violently for an hour or two and, 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,” said Justice Berg.
Bender’s use of force was at “the lower end of the scale,” ruled Berg, finding that it was reasonable for him to pull the child away from the other student.
“He had to be moved away from his target,” ruled the judge. “Mr. Bender did so and then released him approximately five steps away. Mr. Bender’s action were, I find, reasonable in the circumstances.”
