Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Rema Myers Peters
Before: Justice Borenstein
Heard on: September 18 and November 15, 2013
Reasons for Judgment released on: December 3, 2013
Counsel:
- Ms. R. Juginovic for the Crown
- Mr. W. Thompson for Rema Myers Peters
BORENSTEIN J.:
Overview of Charges
[1] Rema Myers Peters is charged with one count of assault and two counts of assault with a weapon.
[2] She is 54 years old. She has worked as a teaching assistant with special needs children for 25 years. She does not have a criminal record.
[3] She is alleged to have assaulted two special needs children in her class, both of whom are approximately 9 years old. Both children have autism. One is verbally non-communicative. The other has very limited oral communication skills. These assaults allegedly occurred at the very beginning of the school year in September 2012.
[4] Specifically, Ms. Myers Peters is alleged to have assaulted Jason B. on September 5, 2012 by pushing him while yelling that he should get his coat and backpack on.
[5] She is also alleged to have assaulted Dwight M. on two occasions.
[6] First, she is alleged to have thrown a pen at his chest in anger on September 7th.
[7] She is also alleged to have assaulted Dwight a second time, on September 11, by hitting him on the thigh with a wooden pointer in order to get him to comply with her direction.
[8] These last two assaults resulted in charges of assault with a weapon.
[9] Only two witnesses were called at this trial.
[10] The Crown called one witness, Ms. Carly Smith, the teacher in that class who testified as to her observations. Ms. Myers Peters testified in her defence as the sole defence witness. She denied committing these offences.
Background
[11] Ms. Smith was a relatively new teacher having taught or volunteered for approximately three years. This was her first year teaching at this particular school. She was teaching a junior class which consisted of seven students, all of whom were developmentally delayed. Ms. Myers Peters was her teaching assistant.
[12] Jason and Dwight were two students in that class.
[13] Dwight and Jason, like the other students in that class, required considerable assistance throughout the day. Sometimes, this would involve repeated short instructions, often guiding them to a task or helping them by using hand over hand techniques.
Ms. Smith's Evidence
September 5th Assault on Jason B.
[14] Ms. Smith testified that the students were told to line up and get their jackets and backpacks on at the end of the day. Most of the children lined up near the coat rack to get ready. Jason needed more help in this regard. He was standing near the coat rack rocking back and forth. He was not getting ready.
[15] Ms. Smith testified that Ms. Myers Peters shouted at Jason telling him to get moving. She then pushed him and pushed his backpack into him. Jason reacted by putting his hands in front of his face. Ms. Smith added, that was a normal reaction Jason had to Ms. Myers Peters. Ms. Smith went over and helped Jason get ready.
Assaults Against Dwight M.
September 7th Allegation
[16] Ms. Smith testified that she heard Ms. Myers Peters call Dwight a "stupid twit" on the first day of school because he was unable to complete an assignment. She rejected the defence suggestion that what she actually heard was Myers Peters calling Dwight a silly twit.
[17] According to Ms. Smith, Dwight was at his desk. He removed his shoes as he would sometimes do. Myers Peters yelled at him to stop but Dwight would not listen. Myers Peters threw a pen at Dwight hitting him in the chest. That is the first assault with a weapon charge.
September 11th Allegation
[18] Four days later, Dwight was sitting on the floor and refused to get up. Myers Peters was yelling at him. She then picked up a wooden pointer from the blackboard and hit Dwight on the thigh. Dwight yelled out and then stood up. Ms. Smith could not describe the amount of force that was used.
[19] Ms. Smith testified that she believed Myers Peters used that pointer to intimidate Dwight in order to ensure compliance. She had seen Myers Peters hold the stick by her side. Dwight would comply with Myers Peters' directions.
[20] In cross-examination, Ms. Smith testified that she found teaching stressful as there was not enough adult support at the beginning of the year. By October, there were three adults assisting the seven children.
[21] Ms. Smith conceded that she did not speak to Ms. Myers Peters about her conduct when it occurred, including the pointer incident, nor did she report it to the principal or the parents or to anyone else. She knew she was legally required to report any abuse. She stated that she felt overwhelmed, afraid and unsure how to handle the situation. She advised the principal of these allegations in late September as a result of an unrelated incident. The police were then notified. In October, Ms. Smith went on stress leave for the balance of the year as a result of the stress she suffered witnessing these incidents.
[22] Ms. Smith was asked how Myers Peters pushed Jason. She could not remember although she repeated that she pushed his backpack into him.
[23] It was suggested to Ms. Smith that another student often overturned bins near the coat rack. Ms. Smith agreed but did not recall him doing it that day.
[24] Ms. Smith rejected the defence suggestions that Myers Peters was sorting through old pens and throwing them into the garbage can or that Dwight got off the floor and ran to the door when Myers Peters blocked his path with the pointer causing the contact between the pointer and Dwight.
Rema Myers Peters' Evidence
[25] Ms. Myers Peters also testified. She is 54 years old. She has worked for the TDSB as a special needs teaching assistant for 25 years. She was suspended from her job as a result of these allegations.
[26] The school year began in September 2012 and it was hectic. The month prior, she underwent surgery. In September, she was still recovering from that surgery and was taking Tylenol for her pain. Her balance was wobbly and got worse throughout the day.
Allegations Respecting Jason B.
[27] With respect to the allegations concerning Jason B., she testified that she was guiding Jason to the coat rack standing behind him. Jason tripped over something and both she and Jason stumbled toward the ground. She did not push Jason and she did not shove his backpack into him. When she and Jason steadied themselves, she went to help another child. Ms. Smith came over and to help Jason put on his jacket.
Allegations Respecting Dwight
[28] With respect to Dwight, she did not call him a stupid twit. She called him a silly twit which is a term she uses even with her own children when they are acting silly.
[29] She denied throwing a pen at Dwight. She was throwing out old markers at the time. In cross-examination, she was asked why she would remember throwing out old markers given how insignificant that would be. She explained that was something she did every year and that she was tossing them into the garbage can some five to six feet away and that the children enjoyed watching her do that.
[30] With respect to the pointer incident, Myers Peters testified that Dwight was on the floor near his desk throwing balls into the air. Ms. Smith asked him to stop. He did not. Myers Peters also asked him to stop. Dwight became frustrated and ran toward the door. Myers Peters picked up the pointer which was on a desk near her and held it out to block Dwight's path thinking it would slow him down or stop him. Instead, he ran right into the stick which struck his thigh. Dwight reacted by touching his thigh. Myers Peters apologized to Dwight. He then sat down. She did not intend to make contact with the stick. She did not threaten him with the pointer.
[31] Ms. Myers Peters was cross-examined regarding how educational methods of dealing with developmentally delayed children have changed over the years. She was asked how to deal with an autistic child who does not follow directions. She explained that it might take those children more time to process requests and therefore instructions should be short and repeated if necessary. She may try to give the instruction in different ways. She may use a physical prompt to get a child to comply.
[32] She admitted that she would use a loud and firm voice at times but denied yelling at the children. She conceded that she could find the work frustrating at times.
[33] In cross-examination, Myers Peters testified that the pointer was ordinarily used to point to letters, shapes and colours near the blackboard. She agreed with the Crown's suggestion that Ms. Smith was the only adult who would therefore use the pointer.
[34] When asked why the pointer was on a desk near Myers Peters, she replied that the pointer would be moved around the room whenever she or Ms. Smith used it.
[35] She agreed that Dwight was afraid of the pointer. When asked why, she replied that Dwight did not want to be confronted in any way and, if he was challenged or told not to do something, he would become angry.
[36] She also explained that she thought he had life experiences that cause him to be fearful when an arm was raised or when he was being re-directed with an arm.
[37] She testified that she did not think he was afraid of the pointer.
[38] In cross-examination, Ms. Myers Peters testified that, after she apologized to Dwight, Dwight continued running to the door. She loudly told him to stop. He did and sat by the door where she let him remain there for less than five minutes until he calmed down. He then returned to his desk.
[39] That was the evidence called in this case.
Submissions
[40] Defence counsel submits that Ms. Myers Peters should be acquitted of all counts. Her evidence ought to be accepted or at least raise a reasonable doubt. Further, Ms. Smith was vague and uncertain in much of her evidence and did not raise or report the abuse when it happened.
[41] The Crown submits that Ms. Smith was credible and reliable and that Ms. Myers Peters' credibility was undermined in cross-examination. While Ms. Smith may have been a nervous witness, she was sensitive to what was happening with her students. Much of her evidence was corroborated in part by Myers Peters' evidence revealing that an incident had occurred with Jason at the coat rack, Myers Peters' admission that she was throwing markers and her admission of some incident with the pointer.
Findings
[42] While there are two versions of events as to what occurred in that classroom, a criminal trial is not a contest between two parties where the more credible version prevails. The Crown has the burden of proving each of these allegations beyond a reasonable doubt. So while credibility is critical, so is the onus of proof.
[43] Since Ms. Myers Peters testified, I will begin with a consideration of her evidence.
[44] She has a long history of working as a teaching assistant with developmentally delayed children. She has spent much of her professional life working with vulnerable children and has expertise and experience in this field. She testified as to what she says occurred in that class. Unfortunately, however, as a result of the cross-examination, I do not believe her evidence.
[45] First, I found it odd that she would recall stumbling somewhat on September 5th or throwing markers into the garbage on September 7th. While the fact that she was charged would obviously sharpen her memory of relevant events, these allegations only came to light several weeks later. If nothing unusual happened on those dates, it is highly unlikely that she would recall such insignificant events.
[46] More problematic was her evidence with respect to the pointer. I do not consider significant, however, the contradiction in her evidence between her initial evidence that only Smith used the pointer with her later evidence that both she and Smith used the pointer. There is nothing odd about both using the pointer. Both she and Smith testified that Myers Peters used the pointer, in some fashion. I do not believe Myers Peters' initial response to the Crown that Smith alone used the pointer was an attempt to deflect or mislead the Court. I suspect she just agreed with the Crown's suggestion that, in light of the academic use of the pointer, it was Ms. Smith who would use the pointer.
[47] So, while that aspect of the evidence was insignificant, the cross-examination concerning Dwight's reaction to the pointer was not.
[48] Smith alleges that Myers Peters uses the pointer to intimidate Dwight to obtain his compliance. Yes, on her own evidence, she stuck the pointer out to slow or stop Dwight. More importantly, during the cross-examination, she conceded that Dwight was afraid of the pointer. When asked why, she explained that Dwight did not like to be confronted or challenged. What does that have to do with a pointer? Why would anyone challenge or confront a child with the pointer? It was that area of cross-examination and the explanations Ms. Myers Peters then attempted to give that undermined her credibility.
[49] With respect to Ms. Smith, I had no concerns with her credibility. There was nothing in her evidence that caused me to suspect that she was not trying to be truthful with the Court. She was a very nervous witness and was overwhelmed in the classroom. The fact that she failed to report these events immediately did not affect my view of her credibility or her ability to perceive the events in question. It did raise concerns about the reliability of her evidence; however, I think that failure was as a result of the fact that she was overwhelmed and was nervous.
[50] I have a reasonable doubt with respect to the assault charge concerning Jason. While I reject Ms. Myers Peters' evidence, her evidence does raise a doubt in my mind. Further, Ms. Smith was vague with respect to how this push occurred. She also conceded that the other student did sometimes overturn bins in that area. All of those factors cause me to have a doubt about that count.
[51] Turning to the assault with a weapon charges with respect to Dwight beginning with the pen incident, I reject Ms. Myers Peters' evidence for the reasons already given. I also think it is highly unlikely that she would remember throwing out markers into a garbage weeks earlier if nothing significant had occurred. However, despite not believing her in this regard, it does raise a doubt in my mind and she will benefit from that doubt. She will be found not guilty of that count as well.
[52] Turning to the assault with the pointer.
[53] I reject Ms. Myers Peters' evidence in that regard for the reasons already given. Not only do I reject her evidence on this count, I find it completely unbelievable and it does not raise a reasonable doubt in my mind. In addition to my earlier reasons, I fail to see how a child who ran into an outstretched pointer would then need to grasp his thigh. It would not hurt him at all. Further, Ms. Myers Peters gave contradictory evidence as to what happened immediately thereafter. Did Dwight sit right down or did he continue running and then have to be instructed to sit down by the door. I accept Ms. Smith's evidence with respect to this count as credible and reliable. Her failure to confront Ms. Peters or report the matter right away was an error in judgment likely attributable to the fact that she was nervous and felt overwhelmed.
[54] Given my view of the evidence, I have no choice but to find Ms. Myers Peters guilty of this offence. I do not know much about Ms. Myers Peters' background. She has devoted her career to helping vulnerable children for 25 years. I have heard that she was recovering from surgery and was in some pain at the time. I suspect those factors may have contributed to her frustration and her actions that unfortunate day.
Released: December 3, 2013
Signed: "Justice Borenstein"