On November 24, 2010, a high school student, W.R., was acquitted of the assault and bodily harm of another student, M.R., despite admitting that he had, in fact, punched M.R.
At the relevant time, W.R. was a fifteen year old, grade 10 student. He weighed 125 pounds and he was soft spoken. W.R. also had a black belt in the martial art of jiu-jitsu. His mother noted that W.R. had suffered from stage 4 lymphoma at the age of nine.
M.R. was an older, larger student at the same school. M.R. and W.R. had never spoken. M.R. admitted to bullying students in the past, although not W.R. He admitted to making fun of people on the school bus by calling them degrading names. He justified his behaviour by claiming that everybody did it or perhaps the kids he made fun of had looked at him funny or “gotten under his skin.”
Approximately one month before the assault, M.R. had started bullying W.R. by bumping him in the shoulder or chest, staring him down and calling him names. M.R. would make fun of W.R.’s clothes, embarrassing W.R. in front of other students. M.R. would mutter things under his breath to his friends when W.R. was walking down the hallway. The bullying occurred at least twice per week, initially, and then escalated to the point that M.R. would bump, push, intimidate, or make fun of W.R. almost every time he passed through the hallway. W.R. described feeling frustrated, being “kind of stressed out” and getting headaches.
During the time that W.R. was being bullied, his parents noticed changes in his demeanour: he was quieter than usual and did not partake in dinner conversations. He was not eating well, he suffered from headaches and was more tired than usual, going to bed at 7:30 p.m. each night. He had even contacted his mother at work to ask her if he could take Tylenol for his headaches.
W.R. eventually told his parents what had been happening at school and they attempted to assist him by providing him with coping strategies, such as avoiding M.R., leaving earlier from school or taking different routes within the school. W.R. begged his parents not to alert school authorities because he did not want any pushback from his peers, or to be known as a tattle tale.
On the day of the assault, W.R. starting thinking about being bullied by M.R. and told his friend that he was going to stand up for himself. Neither W.R. nor M.R. knew the other’s name at that point in time, but W.R. knew what the individual who had been bullying him looked like. That day, when M.R. appeared in the hallway, W.R. anticipated the usual shoulder-bumping or other taunting. M.R. was walking down the hallway, challenging W.R. with an intimidating stare. As soon as M.R. got close enough, W.R. punched him in the face once, splitting M.R.’s lip. W.R. then jumped on M.R. to stop M.R. from hitting him back, at which point M.R. flipped him over and started punching him in the ribs, approximately 15 times.
W.R. was taken to the principal’s office, where he gave an inculpatory statement and was suspended. The statement was not admitted as evidence in youth court because the school had not ensured that W.R. was properly advised of his rights or permitted to have his parents present prior to giving a statement.
On the first day back at school after the suspension, other students at the school applauded W.R. The bullying stopped completely. It was noted by the youth court judge that while W.R. felt good about the applause of his peers, he was sick and felt bad when he heard that M.R. required stitches to his lip. W.R. lost 10 pounds from not eating in the weeks following the incident.
Sections 34 and 37 of the Criminal Code set out the parameters of the justification of self-defence to a charge of assault. Section 37 states that everyone is justified in using force to defend himself if he uses no more force than is necessary to prevent the assault or to avoid its repetition. Subsection 34(1) provides that an individual may only rely on section 37 where the force used is proportionate, or no more than is necessary to prevent an assault or avoid its repetition. The proportionality approach looks at whether the force used was reasonable in all the circumstances, including the accused’s subjective belief as to the nature of the danger or harm. Thus, the proportionality analysis involves both an objective component and a subjective component.
The Crown argued that W.R. was not entitled to rely on self-defence because M.R. had never punched him, and therefore the force used by W.R. was excessive. However, the judge found that W.R. had been assaulted repeatedly in the hallway at school by M.R. W.R. testified that he hit M.R. hard, and did not know how hard because he had never hit anyone in his life. He had not retaliated in the past, despite being bumped and pushed numerous times. W.R. was being bullied to the point that it was affecting his health, as evidenced by his parents’ observations in the changes in his eating and sleeping habits, as well as headaches.
Since the judge found, as a fact, that M.R. had repeatedly bullied W.R. and continued to do so at the time of the punch, satisfying the requirement that W.R. used force to defend himself, the only question was whether W.R.’s actions were proportional. In finding that W.R. acted in self-defence, by delivering a pre-emptive strike to prevent further abuse by M.R., the judge emphasized the totality of the abuse inflicted by M.R, including emotional and psychological harm.
The Court ruled that W.R., a soft-spoken youth and small in stature, had been subjected for months by blows and humiliating comments from M.R. Witnesses confirmed that W.R. told them that he was finally going to stand up for himself in order to prevent further blows. The judge stated that W.R. was entitled to do so. The Court concluded, “The one punch he threw was proportionate and reasonable in the circumstances.”
In the W.R. decision, Justice Nicholas noted that he frequently presides in youth court and has, in recent years, seen a significant increase in cases involving bullying, threats and violence on school property. He went so far as to conclude that bullying “is a growing social problem.”
The W.R. decision does not condone the use of violence against a bully. However, the circumstances of that case should alert educators to the fact that bullying may result, not only in psychological and emotional harm to the victim, but it may also lead to an otherwise law-abiding student turning to violence. While Justice Nicholas found that, in W.R.’s case, such use of violence was justified in self-defence, the possibility that this type of situation could escalate quickly, creating a dangerous situation, is a very real concern.
Canadian research consistently shows that bullying is linked to depression, poor school performance and anxiety, for both the victim and perpetrator. Experts advocate for anti-bullying programs customized to the particular characteristics and needs of the student population at the school.
Such programs must be adapted to the age and gender of children, as well as the circumstances around specific incidents, while involving parents, students and teachers.
Researchers suggest that the mistake that schools often make is to apply one solution to all situations, without adapting their methods to specific cases or unique school environments. Anti-bullying programs often speak vaguely about respect and diversity, without addressing the most common motivations, such as race and homophobia.
In addition, recent research suggests that educating bystanders to change their behaviour helps to reduce bullying. For example, teaching students to simply walk away rather than intervening or supporting the alleged perpetrator removes the audience and often stops the bully.