WARNING: This article contains an allegation of sexual assault.
Wes remembers how he picked up the phone and froze as he listened to his son’s high school principal.
His son Matthew, then 16, was accused of sexual assault by an educational assistant, and she had gone on leave.
Matthew has Down Syndrome and his medical records, shared with CBC News, indicate he is non-verbal and has the emotional and mental capacity of a five-year-old. That means he did not have the ability to understand what he was doing.
CBC has agreed not to use the family’s last name to protect the boy’s future prospects.
The incident would upend the routine Matthew had grown to depend on, forcing Wes to argue with police, hire a lawyer, and pull Matthew from school for the remainder of the year.
“It’s been a battle. At times you want to give up, but we all worked hard to protect Matt, and that’s what we’re here for — he’s our son,” Wes said.
“I’ve always had a lot of respect for police, but when a situation like this happens, it disappears.”
On Nov. 24, 2021, Matthew came home with two reports from Hillcrest High School in Ottawa instead of the usual single file. The additional report says he had grabbed an educational assistant’s buttocks seven times.
A day later, the principal called to follow up, and Wes said he was not entirely surprised by the description of Matthew’s behaviour.
“Anytime he feels like he’s left alone or something, he’ll just go up and touch somebody just to get some reaction,” Wes said, adding his family had also noticed a similar pattern at home a few weeks earlier.
“Like he’ll just give me a hug and he’ll touch down lower than he’s supposed to,” Wes explained. “We never thought anything was wrong with that at the time.”
Wes acknowledged the touching was “inappropriate,” so the family had begun working with Matthew to stop the behaviour.
“We’d always say, ‘No touching,'” Wes said.
For most of the people in Matthew’s orbit, this was a work in progress. Though the teen was caring and compassionate, intellectually he was more than a decade behind his physical development.
Wes said the public school’s developmental disabilities program had seemed well-equipped to handle his son’s special needs. Staff had successfully dealt with other behavioural issues in the past.
A recent turnover of educational assistants meant the boy was dealing with new staff.
A day after the principal called, police informed the school they were investigating and then one week later, an officer called Wes looking for Matthew.
Wes said the officer informed him he was looking for Matthew to charge the teen with sexual assault.
“I said, ‘No, you’re not going anywhere near my son,'” Wes recalled, leading him to hire a lawyer.
“They don’t know who Matthew is, never came to see Matthew — if he even has that ability to do something like that.”
Wes said the officer told him he was aware of Matthew’s disability, but was moving forward with the charge anyway, and any other details about the investigation would be withheld until that time.
“I find that very bizarre,” Wes said.
Uncertainty and anxiety over potential criminal charges hung heavy over the family for nearly three months, Wes said, but eventually police relented.
Neither the Ottawa Police Service nor the Ottawa-Carleton District School Board provided CBC with comments on the specific case, citing privacy concerns.
The family has also never learned the identity of the accuser.
In an emailed statement to CBC, the force said it takes all complaints seriously and investigates them fully.
“If evidence supports it, charges are laid. Other resolutions to charges may be considered on an individual basis,” the statement read.
‘Safety protocol’ involved padded stick
The family wanted Matthew to return to class, and in January 2022, Wes said the school and police were working together to bring his son back to class.
He remembered being given two options: send Matthew to a specialized school, or agree to a new “safety protocol” in order to keep Matthew in the public school system.
That protocol involved a stick with padding on the end to keep Matthew away, Wes said, which was agreed upon by school staff.
“It was a group of people. And not one person stood up and said, ‘Hey, this is wrong … It’s 2022, that shouldn’t happen.'” Wes said.
Matthew’s parents said they decided to tour two specialized facilities, but didn’t feel their son fit in. The parents eventually decided to pull their son from Hillcrest and home-school Matthew for the rest of the school year.
Wes said in a subsequent meeting with a school board superintendent, he was told staff had not followed proper school procedure.
In an emailed statement, the OCDSB said it couldn’t discuss “individual employees or students or issues involving a minor and the justice system.”
Instead, the board provided a general explanation of its policy around the use of “personal protective equipment” (PPE) in cases where “an employee could experience harm in the course of their work with a student.”
Standard measures include developing a “safety plan,” training, ensuring communications devices are available to summon assistance when required, and further consultations with “multi-disciplinary team members and specialized teams from central departments.”
“In limited circumstances, after other reasonable measures have been considered and implemented, other types of equipment may be provided,” the OCDSB statement read. “A variety of PPE is available, including arm guards, shin guards, impact gloves or jackets.”
The statement did not mention sticks.
Not the right approach: advocate
Some legal and disability rights observers question the way police and school administrators handled the case.
The Canadian Down Syndrome Society says while it respects the right for individuals to lodge complaints when they feel violated, there are other ways for the school to address situations like this.
Executive director Laura LaChance said protective equipment, such as a padded stick, is a more common tool for children with autism who can become aggressive, but instead she suggested setting firm boundaries and reinforcing them.
“We do not [see a padded stick] as a suitable method for making this a teachable moment,” said LaChance.
“At school and at home, there needs to be repetition. There needs to be practice. … There needs to be constant reminders.”
LaChance also stressed the need for empathy when dealing with teens with special needs. Those who can’t express themselves verbally often rely on action as a form of communication.
“Is this child in the habit of hugging his peers?” she asked hypothetically. “What happens when a child with Down Syndrome is small and cute? But they grow up to be hairy boys. It’s not so small and cute anymore and it’s inappropriate.”
Hard case to try criminally
In June, six months after Matthew was first accused of sexual assault, Wes said police offered to take the potential charge down to a warning. The father was glad, but he thinks a warning is still too far.
I just want [a child with special needs] to be recognized as a human being.– Wes
“[Police] failed to do [their] job, the school failed to do their job,” he said.
Criminal lawyer Cassandra DeMelo, who is based in London, Ont., and not involved in this case, said even if police were to charge Matthew, it would be a difficult case to prosecute.
She said police and the Crown typically look for two elements: actus reus, which asks if the act occurred, and mens rea, which asks if the person has the mental intention to commit the act.
“When you’re talking about someone with Down Syndrome who has an operating capacity of five years old … if I’m the police, I’m seriously questioning whether or not mens rea can be made out,” said DeMelo.
“I’m not sure that this case would have ever gotten before a judge.”
New school, new hope
With the help of a school board superintendent, Matthew started attending a new school in September and it has made a “huge difference,” according to his dad.
“He’s got these teachers coming out, ‘Hey man, how are you there?” High-fiving them,” said Wes, adding his now 17-year-old son is doing better socially, too.
Wes said he’s sharing his family story so a similar situation does not happen with another child with disabilities.
“I just want them to be recognized as a human being.”