Court Information

Court: Ontario Court of Justice

Date: December 22, 2020

Before: Justice S.R. Clark

Heard: October 6, 7, 8 & 9, 2020 and December 16, 17, 18 & 19, 2020

Reasons for Judgment Released: December 22, 2020

Parties and Counsel

Between:

Her Majesty the Queen

— AND —

Sean Hume

Counsel:

• 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

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 to Ms. 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 the child? 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 to negative 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 secure compliance with instruction or direction. Furthermore, the child must be capable of benefitting from the educational value, meaning he was capable of appreciating its purpose. The purpose may be considered from the viewpoint of both the child and the educator. There is no definition in the Criminal Code as to what correction is, other than to make sure, one could argue, that it is not motivated by arbitrariness or capriciousness. In other words, correction is countenanced by the law because it is for the benefit of the child's education. S.43, therefore, is a justification. It exculpates one who uses force because it considers such an action not a wrongful, but rightful one, (R. v. Ogg-Moss, [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 from criminal 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 as stealing, 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 for other people, and orderly conduct cannot exceed what is appropriate in the circumstances. Thus, it is unacceptable when it breaches rules which, upon objective scrutiny are untenable, or indefensible. Note however, that the reference to "in the circumstances" also permits 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. Such matters as degrading, inhuman, or harmful conduct, corporal punishment such as slaps or blows to the head, discipline by the use of objects, and conduct stemming from loss of temper or abusive personality are obvious scenarios over which there would likely be no disagreement.

[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 outdoor play and learn program at recess and lunch, where students of all grades and ages are integrated and encouraged to make use of various items placed in the schoolyard, such as pots, pans, shovels, and tires. It allows for open-ended risky play, but is designed to develop the students' conflict resolution skills. Various items were placed in the junior playground area of the yard, but all students could use/play with them as long as it was safe to do so. It also required "active supervision" with teachers and other support staff assigned to be in the field 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. His history 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 by lashing 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 dispute that L. was a "high need/high maintenance" 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 little boy", 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