Published Dec 26, 2023 • 4 minute read
A file photo of the entrance to the courthouse on Elgin Street in Ottawa. Photo by Ashley Fraser /Postmedia
A special needs teacher was acquitted of assaulting an autistic elementary school student in his classroom after a judge found the teacher’s actions were justified and “reasonable under the circumstances.”
Robert Bender was acquitted of assault in a Dec. 20 ruling from Ontario Court Justice David Berg that came more than three years after the initial incident.
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Bender was at first charged with assault, harassment by threatening conduct and intimidation involving two alleged victims. Those other charges were withdrawn and Bender stood trial on the single assault count involving one student.
The judge found there were several “contradictory” versions of the December 2020 incident that emerged through the testimony of trial witnesses.
The name of the student, who was under 10 at the time, and names of the witnesses are shielded by a publication ban to protect the identity of the child.
According to an outline of the allegations, Bender was teaching a class of students with “significant behavioural problems” when the student in question, a “high-needs” child who had been diagnosed with autism spectrum disorder, began “acting out” in the classroom.
The judge found the accounts of the incident from three Crown witnesses contained “contradictory” evidence.
According to the judge’s own summary of the facts, Berg found that the child “became upset and began to act out” for reasons that were unrelated to any of Bender’s actions.
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Bender was teaching at the front of the classroom at the time when the child “became agitated” and began to pace back and forth at the back of the room.
The child was accompanied by an educational assistant, who testified that the child’s behaviour could rapidly escalate and “could go from 0-100 quickly.”
When the child became “dysregulated” — a professional term for “acting out,” the judge noted — he would begin pacing and swearing, and his behaviour could escalate to “physical aggression” against other students and staff.
The educational assistant testified that staff would try to move the student to another room when he exhibited similar behaviour, but said staff would not touch him unless he was being aggressive or hurting someone.
According to the judge’s summary, the educational assistant became concerned that the child was going to “attack” another student and called out to Bender for help.
The child approached another student near the front of the class who appeared to be the child’s intended “target,” the judge wrote.
“Now aware of the risk (the child) posed to the other child, Mr. Bender took two or three steps and grabbed (his) 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.”
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Bender then released the child’s arm.
The child “sank to the ground” before running out of the classroom, where he “acted out violently for an extended period of time,” Berg wrote.
The judge said there was no dispute over the fact Bender grabbed the child by the wrist and pulled him away from the other child.
“The issue before me is whether that application of force is justified,” Berg wrote.
Crown prosecutor Anne Fitzpatrick argued that Bender’s actions “were motivated by anger and/or frustration” and that Bender grabbed the student’s wrist in a “punitive and retaliatory” manner.
Berg disagreed.
“While there is some evidence before me that Mr. Bender looked angry, that is not the same as saying that his applying force to (the child) was motivated by anger,” the judge wrote. “It is clear that Mr. Bender’s actions here were in reaction 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 (the child) had been removed from the vicinity of the other child.”
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The judge noted that educators had developed a “behavioural management plan” (BMP) for the child that mandated when and what manner of physical force could be applied.
“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,” Berg noted.
The judge wrote that non-compliance with the school board’s directives “does not necessarily turn a teacher’s actions into a criminal assault.”
Berg ruled that the force Bender applied “was by way of correction” and did not exceed the amount force deemed reasonable in the circumstances.
The use of force was at “the lower end of the scale,” and Berg found it was reasonable for Bender to pull the child away from the other student.
“He had to be moved away from his target,” the judge wrote. “Mr. Bender did so and then released him approximately five steps away. Mr. Bender’s action were, I find, reasonable in the circumstances.”
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