WARNING: This article contains an allegation of sexual assault.
Wes remembers picking up the phone and freezing as he listened to his son’s high school principal.
His son Matthew, then 16, was accused of sexual assault by a teaching 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. This means that he did not have the ability to understand what he was doing.
The CBC has agreed not to use the family’s last name to protect the boy’s future prospects.
The incident would change the routine Matthew had become addicted to, forcing Wes to argue with the police, hire a lawyer, and withdraw Matthew from school for the rest of the year.
“It’s been a struggle. At times you want to give up, but we’ve 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 the police, but when a situation like this happens, it goes away.”
On November 24, 2021, Matthew came home with two reports from Hillcrest High School in Ottawa instead of the usual single file. The supplemental 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 wasn’t entirely surprised by the description of Matthew’s behavior.
“Whenever he feels like he’s left alone or something, he’ll just go up and touch someone just to get some reaction,” Wes said, adding that his family had also noticed a similar pattern at home a few weeks earlier .
“Like he’s just going to give me a hug and he’s going to move lower than he’s supposed to,” Wes explained. “We never thought there was anything wrong with it at the time.”
Wes recognized that the touching was “inappropriate” so the family had begun working with Matthew to stop the behavior.
“We would always say, ‘no touching,'” Wes said.
For most people in Matthew’s orbit, this was a work in progress. Although the teenager was caring and compassionate, intellectually he was more than a decade behind his physical development.
Wes said the elementary school’s developmental disabilities program had seemed well equipped to handle his son’s special needs. Staff had successfully dealt with other behavioral problems in the past.
A recent change of teaching assistants meant that the boy was dealing with new staff.
A day after the principal called, the police informed the school they were investigating, and a week later an officer called Wes looking for Matthew.
Wes said the officer told him he was looking for Matthew to charge the teenager with sexual assault.
“I said, ‘No, you’re not going near my son,'” Wes recalled, prompting him to hire a lawyer.
“They don’t know who Matthew is, never came to see Matthew – if he even has the ability to do such a thing.”
Wes said the officer told him he was aware of Matthew’s disability, but still went ahead with the charges and all other details about the investigation would be withheld until that time.
“I find it very bizarre,” said Wes.
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 comment on the specific case, citing privacy concerns.
The family has also never learned the identity of the accuser.
In an emailed statement to the CBC, the force said it takes all complaints seriously and fully investigates them.
“If evidence supports it, charges will be filed. Other decisions about 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 recalled being given two options: send Matthew to a specialized school or agree to a new “safety protocol” 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 to by school staff.
“It was a group of people. And not one person stood up and said, ‘Hey, this is wrong… It’s 2022, this shouldn’t be happening.'” Wes said.
Matthew’s parents said they decided to visit two specialized facilities, but they didn’t feel like their son fit in. The parents eventually decided to withdraw their son from Hillcrest and homeschool Matthew for the remainder of the school year.
Wes said in a subsequent meeting with a school board inspector that he was told the staff had not followed proper school procedure.
In an emailed statement, the OCDSB said it could not discuss “individual staff or students or matters involving a minor and the justice system.”
Instead, the board provided a general explanation of its policy surrounding the use of “personal protective equipment” (PPE) in cases where “an employee could experience injury in the course of their work with a student.”
Standard measures include developing a “safety plan”, training, ensuring communication units are available to call for assistance when needed, and additional consultations with “multidisciplinary team members and specialist teams from central departments.”
“Under limited circumstances, after other reasonable measures have been considered and implemented, other types of equipment may be provided,” the OCDSB statement reads. “A range 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 that while it respects the right of individuals to make complaints when they feel violated, there are other ways for the school to handle 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 don’t [see a padded stick] as an appropriate method to make this a teachable moment,” LaChance said.
“At school and at home it must be repeated. There must be practice. … There must be constant reminders.”
LaChance also emphasized the need for empathy when dealing with teenagers with special needs. Those who cannot express themselves verbally often rely on action as a form of communication.
“Does this child have a 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.”
Difficult case to try criminally
In June, six months after Matthew was first accused of sexual assault, Wes said police offered to drop the potential charge to a warning. The father was happy, but he believes that a warning is still too far away.
I just want to [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 is not involved in this case, said that 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 reuswhich asks if the action has occurred, and while reawhich asks whether the person has the mental intention to commit the act.
“When you’re talking about a person with Down’s syndrome who has an operational capacity of five years… if I’m the police, I seriously question whether or not while rea can be made out,” DeMelo said.
“I’m not sure this case would ever have come 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 father.
“He’s got these teachers coming out, ‘Hey man, how you doing there?’ High-fiving them,” Wes said, adding that his now 17-year-old son is also doing better socially.
Wes said he is sharing his family history so a similar situation doesn’t happen to another child with a disability.
“I just want them to be recognized as a human being.”