1. law, govt and politics
2. law enforcement
3. police

General Editors: James P. Carwana, B.A., LL.B., and Bruce Hutchison, B.A., LL.B.
Consulting Editor: Justice Marvin A. Zuker, Ontario Court of Justice
VOLUME 12, NUMBER 3
Cited as 12 R.M.C.E.
FEBRUARY 2012
• CURE FOR THE HANGOVER: CRIMINAL INVESTIGATION ISSUES
FOR TEACHERS AND SCHOOL DISTRICTS — PART 2•
Brian A. Vail, Field LLP
III
THE OPENING ROUNDS
A.
Introduction
The allegations can come to the attention of the
police, the school district and ultimately the accused teacher in a number of ways. Often, there
is an identifiable incident at school that is perceived immediately to be a potential problem to
educators in the vicinity (such as other teachers,
educational assistants, school administrators,
students, etc.).
43
As an example, consider R. v. Jonkman. The
incident in question involved a substitute
• In This Issue •
CURE FOR THE HANGOVER:
CRIMINAL INVESTIGATION ISSUES FOR
TEACHERS AND SCHOOL DISTRICTS — PART 2
Brian A. Vail.......................................................37
In association with:
Catholic Principals’ Council of Ontario
teacher taking a disobedient student by the arm
and pulling him towards the door, to take him
outside and, if necessary, on to the office. The
student resisted, and ended up falling down. He
became visibly upset, which was noticed by his
regular classroom teacher, who returned to the
classroom moments later. That teacher reported
the incident to school administration.
In non-sexual incidents, it is not usually school
administration or the district that bring in the police. Most often, it is the student’s parent, angry
over the situation and dissatisfied with how it is
being handled by the school, who initiates criminal proceedings by reporting the matter to police.
Sometimes, the parents go to the police before
they even attempt to deal with the school or the
district about the incident. In such cases, the parents tend to be “out for blood” and do not really
care what school administration or the district do
about it. However, sometimes the parents do try
and deal with school and/or district administration regarding the matter initially but, when
they become disenchanted with the response,
they go to police (which could be because
Risk Management in Canadian Education
February 2012 Volume 12, No. 3
the parents’ position is emotional and irrational,
and the level-headed, calm school authorities
are not prepared to assist the parents in a witch
hunt).
RISK MANAGEMENT IN
CANADIAN EDUCATION
Risk Management in Canadian Education is published
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In the Jonkman case, the parent advised the
school principal on his first contact with her that
he was considering bringing in the police, but he
continued to deal with school administration for
several weeks after the incident. Although
school administration advised the father as to
what had happened, and kept him apprised of
how the complainant continued to do in school
after the event, the principal would not advise
the father as to what sanctions (if any) the district was contemplating against the substitute
teacher. Several weeks after the incident, the
father went to the police, claiming that school
administration was keeping him in the dark
when, in fact, school administration had only
refused to comment to him about what it considered to be a confidential personnel matter. In
short, when the parent perceived that he was not
going to get his “pound of flesh” from the
teacher via the school authorities, he decided to
go the police route.
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EDITORIAL BOARD
GENERAL EDITORS
James P. Carwana, B.A., LL.B., Coutts Pulver LLP,
Vancouver and Bruce Hutchison, B.A., LL.B., Genest
Murray LLP, Toronto
On the other hand, sometimes the allegations
arise from an incident that is not immediately
apparent at the school. Of course, this is a common theme where the incident is completely
fabricated by the complainant student. Especially in sexual matters, it can take some time
(even years) for a complainant to come forward,
for a variety of reasons. In such a case school
administration, the district and ultimately defence counsel can be denied the ability to identify and collect crucial evidence with respect to
the incident (such as school hallway video surveillance records, which are not typically kept
forever).
CONSULTING EDITOR
The Hon. Mr. Justice Marvin A. Zuker, Ontario Court of
Justice
EDITORIAL BOARD MEMBERS
Bonnie Ozirny, General Counsel, Saskatchewan School
Boards Association  Teresa Drijber, Ontario School
Boards’ Insurance Exchange  Kevin P. Feehan, Q.C.,
Fraser Milner Casgrain, Edmonton  Noella Martin,
Wickwire Holm, Halifax  Keith Thomas, Manitoba
Association of School Trustees, Winnipeg.
Note: This newsletter solicits manuscripts for consideration
by the General Editors, who reserve the right to reject any
manuscript or to publish it in revised form. The articles
included in Risk Management in Canadian Education reflect
the views of the individual authors. This newsletter is not
intended to provide legal or other professional advice and
readers should not act on the information contained in this
report without seeking specific independent advice on the
particular matters with which they are concerned.
38
Risk Management in Canadian Education
February 2012 Volume 12, No. 3
A common theme with respect to all of these
complaints is that there is an angry parent in the
mix. Especially with respect to the non-sexual,
minor assault scenarios, the parents may be unreasonably emotional and irrational. I submit
that this is obviously the case where the parent
reacts to the minor school incident by going to
police before even attempting to seek clarification or a resolution at the school level. In sexual
cases, the parents also may react the same way,
but, whether the allegation is true or not, one
can understand how the parents would adopt
this attitude in such cases.
made her allegations, she was in
trouble in the teacher’s class — she
had not turned in a number of assignments and she had been caught
cheating.
The district must keep in mind that not every
allegation is true, even those which result in a
criminal charge being laid. The presumption of
innocence is more than a motherhood statement,
it is a bedrock principle of the Canadian legal
and democratic system. There can be many reasons why false allegations are fabricated, including the following:
1.
Students can fabricate an allegation
avoid punishment or to get out of
trouble. This is a common theme, especially in non-sexual, minor assault scenarios. The student may be in trouble at
school or at home, and fabricates a story
to divert everyone’s attention from some
trouble that the student is in or which the
student perceives that he or she is about to
be in. I have been involved in several
cases where the student comes forward
with allegations at a time that a student
has missed or is about to miss a deadline
for handing in a major assignment; or, just
before an unfavourable report card.
(a)
2.
(b)
I was involved in another case involving a sexual allegation against a
principal after he had called police
into school to search the student’s
locker, upon a report from another
teacher and some students of having
seen the student in question store,
what appeared to be drugs in his
locker. The principal kept the student in his office pending the arrival
of police. Upon their arrival, the
student alleged that the principal had
propositioned him in the office.
(c)
As an aside, I note that these tactics
often succeed in terms of getting the
student “off the hook”. In the former
case, there was no evidence that the
late assignments were ever turned
in. In the later case, the police became so involved in investigating
the sexual allegation against the
principal, only to write it off as unfounded several days later, that they
did not get around to searching the
student’s locker for drugs for several
days. By the time they did, the
locker was clean.
Sometimes students fabricate allegations to attract position attention to
themselves and/or out of a desire
to impress their friends.
44
In R. v. Dubas, one of the factors
taken into account in rejecting the
evidence of one of the complainants
was the fact that at the time she
(a)
39
I was involved in a case (that did not
result in a charge being laid against
the teacher) arising out of the con-
Risk Management in Canadian Education
February 2012 Volume 12, No. 3
versations of several junior high
school girls at a pajama party. They
had begun to reminisce about their
experiences with the teacher. To impress each other, they each sought to
outdo the others with their own recollections. As the tall tales grew, a
parent overheard the conversation
and a police investigation was
initiated.
(b)
3.
4.
returned (or even firmly rebuffed), they
resort to accusing the teacher to get back
at him or her.
5.
It is common for a student to tell a
tall tale about a teacher with the desire of momentarily impressing his
or her friends, without appreciating
how seriously adults who come to
learn of it will react. Once the police
are involved, young complainants
are often reluctant to admit the lie,
for fear of what they perceive will
be the negative consequences to
themselves.
Some students fabricate an allegation in
an attempt to rehabilitate their own
reputation or, alternatively, to distract
attention from their own wrongdoing,
particularly in sexual cases. It is not
uncommon for a sexually promiscuous
teenage student, whose promiscuity is becoming known to friends and parents, to
come forward with an allegation against a
teacher so as to focus everyone’s attention
on the teacher and away from her own life
choices.
Sometimes a student will fabricate a
false sexual allegation out of revenge
because his or her affections for the
teacher have not been returned. It is
not unusual for young teenage students to
develop a crush on their teachers and,
sometimes, when their affections are not
40
Sometimes an allegation arises from
domestic turmoil within the student’s
home, such as parental separation or
divorce, abuse of the child in the home,
or a difficult child-parent relationship.
Sometimes students who do not feel
that they are getting sufficient positive attention from their parents at home will
fabricate a complaint against a teacher to
attract more positive attention or sympathy from parents.
(a)
The criminal justice system can
create a vicious circle in these situations, as the police authorities (including victim services units) tend
to instill in complainants the perception that they have been victimized
(more so than is the reality) and, together with the parents, visit upon
the child more positive attention
than he or she has previously
enjoyed. They become the centre of
attention.
(b)
Children sometimes play one parent
off against the other in a separation
or divorce scenario. It is not uncommon for an incident at school to
be dealt with rationally by the custodial parent but have the noncustodial parent engage in “chest
thumping” to make it clear to the
other parent (and the rest of the
world) that he or she is a good and
concerned parent.
(c)
There have been cases where I have
thought that the student’s false alle-
Risk Management in Canadian Education
February 2012 Volume 12, No. 3
gation was a cry for help in the
backdrop of a tumultuous family
situation.
(d)
6.
7.
Unfortunately, in such scenarios, the
student’s parents tend to actively
support and expound upon the complaint against the teacher to explain
away the perceptions of others as to
their own roles in the difficult family situation. The parents, aware that
the legal system is looking at their
family situation, want to appear to
the world to be good and concerned
parents.
Particularly in minor non-sexual assault cases, a police investigation is initiated by parents who may overreact to
a minor school incident.
As obvious as it may be, the fact that some people charged with crimes are indeed innocent is a
point that often needs to be hammered home
with the general public, and sometimes school
districts. There have been a couple of recent
cases that underscore this point.
47
Consider the case in R. v. Dubas. The accused
teacher was alleged to have groped two female
students. The first complainant’s evidence was
held to be “unreliable” without having to take
into account the evidence of Mr. Dubas and the
other defence witnesses. The court held that the
video surveillance imaging from the place and
time of the first complainant’s allegations established that what she alleged “certainly did not
happen”. Similarly, the second complainant’s
evidence was rejected as a “remarkable” allegation that gave rise to a “grave suspicion” (before
even considering the defence evidence). Her
allegation was that the accused teacher had
groped her in a school hallway between classes
when other staff or students might turn up unexpectedly and within view of the video surveillance camera. In rejecting the second complainant’s evidence, Fraser J. held as follows:
There have been cases where the complaint is made against the teacher by
the parents out of a desire to remove a
teacher with whom they are having disagreements about educational matters.
45
Consider the situation in R. v. Nawrot.
The parents of several young students
brought false sexual complaints against
the school principal after an unsuccessful
attempt to get the district to remove him.
In acquitting the teacher, Murray J. held as
follows:
. . . some of the parents of these children, at all relevant times and before that, were very actively and determinedly working for the removal or dismissal of the
accused from his position as school principal.
Would Mr. Dubas take a chance and touch [C1] inappropriately, knowing that such contact would be preserved on
48
video? I think not.
.....
As I say, all of these people lived in a very small community. The parents in question were determined to
get rid of the accused. They had been advised by a
lawyer that their grievances presented to the School
Board were insufficient to force his removal and that
proof of sexual misconduct would be the only thing
which would make his dismissal “stick”. It was suggested by the defence, and there is some reason to
46
believe it, from that time, the hunt was on.
This was not a case where the judge had a reasonable doubt about whether or not the accused
had committed the offences but, rather, involved
a complete rejection of the allegations made by
the complainants and the acceptance of the
teacher’s innocence. Judge Fraser expressed in
no uncertain terms the finding that the accused
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Risk Management in Canadian Education
February 2012 Volume 12, No. 3
teacher had not touched either complainant,
as alleged:
provable facts and could provide the Crown
with an opportunity to plan for the defence to
the extent possible.
I believe this accused, and I accept his evidence that at no
time did Mr. Dubas touch either young lady or at all. His recall of the events surrounding [C1’s] complaint is triggered by
the tragic family situation and the video. His description of
his career to October 2009 is entirely consistent with the
opinion held by the students, Ms. Benson, Ms. Vollrath and
Ms. MacMillan.
In particular, it must be noted that defence
counsel generally does not show his or her cards
at a preliminary inquiry, in situations where the
accused teacher elects to be tried in the Court of
Queen’s Bench. Theoretically, the preliminary
inquiry is intended to require the Crown to establish that there is sufficient evidence upon
which the accused should stand trial in Queen’s
Bench. The bar for committal for trial is set extremely low — the Crown need only tender sufficient evidence to establish that there is some
evidence upon which a properly instructed jury
53
could convict. In fact, since committal for trial
is usually a foregone conclusion, preliminary
inquiries are employed by the defence to gain
discovery of the Crown case and size up Crown
witnesses. Accordingly, at preliminary inquiry,
the case against the teacher often looks strong
because the defence does not aggressively crossexamine the Crown witnesses or challenge their
evidence (so as to be able to ambush the Crown
with the defence challenges at trial) and the defence calls no evidence of its own to support the
teacher’s side of the story. People observing the
preliminary inquiry will only get a partial,
skewed picture of the total evidence involved in
the case.
Based on the case law, my finding is that the denial of the
accused is credible. His evidence is worthy of belief.
As a result, Mr. Dubas, you are acquitted on the charges on
the Information before me. In my opinion, Mr. Dubas, you
have suffered a tremendous injustice. One hopes that this
decision will result in the continuation of a successful teaching career.
[Emphasis added]
49
Consider also a recent case involving Ottawa
teacher Jennifer McCalla, where the court also
expressed, in very clear terms, that the teacher
50
had been falsely accused of sexual allegations.
No matter how bad a teacher’s position may
look at first, police and school districts should
appreciate that the teacher might be shown to be
clearly innocent once all of the facts come to
light. In a criminal proceeding, that might not
occur until the actual trial.
It must be kept in mind that defence counsel often needs to keep his or her case close to the
vest until trial. For one thing, the Crown disclosure package (with all of the police evidence) is
usually provided to defence counsel pursuant to
trust conditions that prohibit the use of that information outside of the criminal proceeding
51
itself and the better view is that defence counsel is subject to an implied undertaking not to
make use of the Crown disclosure package out52
side of the criminal proceedings. More importantly, it is unwise for defence counsel to expose
the defence case prior to trial, as it may give rise
to the risk that Crown witnesses will tailor their
evidence to fit more closely with objectively
The mere allegation of criminal misconduct can
destroy a teacher forever, even if the teacher is
ultimately acquitted in criminal proceedings,
especially with respect to sexual cases. Not
every acquittal involves an express judicial finding of the accused’s innocence that is as clear as
54
55
was the case in Dubas or McCalla. It is not
uncommon for a judge to express the reasons for
acquittal in terms of their being a reasonable
doubt, which leaves room for the community to
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Risk Management in Canadian Education
February 2012 Volume 12, No. 3
think that the accused “probably did it, but it
just could not be proven”. The public may chalk
acquittals down to “those damn, sneaky defence
lawyers and those damn, spineless judges”.
Post-acquittal perceptions of this type are often
encouraged by attempts on the part of the unsuccessful complainants to further shore up their
own tattered reputations.
I submit that it is wise for school districts to
keep their options open in such cases, to allow
as much room as possible to maneuver in the
event of all the possible results of the criminal
investigation or proceedings. The district may
wish to consider minimizing statements or positions that can be attributed to it in a later civil
case that are inconsistent with the teacher’s innocence, which can impair the ability of the district to argue that point.
B.
Dealing with the police interrogation;
3.
Speaking to bail;
4.
Bringing the school district into the loop:
(a)
addressing the teacher’s status pending the
outcome of the criminal investigation or
proceedings; and
(b)
discussing messaging;
(c)
responding to the district’s investigation;
and
5.
evidence preservation.
1.
Initial Information and Advice
Defence counsel must give the client advice as
to what is about to happen and some prophylactic advice as to how to deal with it. The manner
in which this advice is given will depend on
whether or not the client is in custody. If the client is not in custody, counsel has the opportunity to do a relatively in-depth interview if the
client can get to a secure line. If the client is in
custody, the ability to get detail is far more limited. Police may be monitoring the call or the
client may be overheard. In that instance, counsel should not ask the client for his or her version of what did or did not happen, just what he
or she has been told the allegations are.
Defence Counsel’s Initial Tasks
A criminal retainer file usually comes in without
warning, requiring defence counsel’s immediate
attention. Typically, all other tasks must be
dropped while the initial matters involved in a
criminal defence file are attended to.
It usually starts with a telephone call that police
have contacted the teacher and want him or her
to come and give a statement, usually for later
that same day or the next. This almost always
involves a very short time frame. Alternatively,
the initial call may be that the teacher has been
arrested and is in custody. Police may or may
not have interviewed him or her already. The
issue of the bail will have to be addressed without delay.
Defence counsel has several initial goals to meet
during the initial information and advice session. First, he or she must find out as much as
possible about the allegations, which is usually
fairly minimal at this early stage.
Second, the client must be given a “heads up” as
to what is coming, so as to take his or her fear of
the unknown criminal justice system out of the
equation and to inform the client as to what to
do. The client must be advised of his or her
rights, primarily the right to remain silent. I advise clients to indicate to police that he or she
The initial steps that defence counsel must take
are as follows:
1.
2.
Obtaining initial information and providing initial advice;
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Risk Management in Canadian Education
February 2012 Volume 12, No. 3
has nothing to say at this time on the advice of
counsel. This is so as to buy time to allow defence counsel to find out what the allegations
are, what the police attitude about them is, and
to consult with the client on the question of
whether or not he or she should give police a
voluntary statement. Finally, counsel looks to
get details to assist his or her initial contact with
police and, if necessary, to prepare for a bail
hearing.
2.
about his or her position, there is no good reason
to advise the client to submit to an interview.
Even if what he or she has to say is exculpatory
and supported by credible evidence, it will not
deter police from laying a charge and the downside risks are significant. To the extent that the
accused gives police a statement at the outset,
there is a real risk that whatever he or she says
might be taken back to the complainant or other
Crown witness which, in turn, allows them to
tailor their evidence to meet any independently
provable points. For example, if the complainant
alleges that the offence took place at school on a
certain date and defence counsel learns that the
accused was not at school on that date (and can
prove it with documentary or other independent
evidence), police will undoubtedly go back to
the complainant for clarification on that point.
The complainant might then indicate that he or
she was initially “mistaken” as to the date and
specify a different date, so as to make his or her
evidence fit with independent indisputable facts.
If police have charged or are going to charge the
accused anyway, the defence is better off to
confront the complainant with that contradiction
at trial. Second, any evidence provided to the
police at the outset can only assist the Crown in
preparing to meet the defence at preliminary
inquiry or trial.
Police Interrogation
If defence counsel has the chance to speak to the
client before the client goes into the police station, it is preferable to find out from police what
they say the allegations are and the police position on release. Defence counsel can then give
the client advice as to whether or not he or she
should be agreeing to give police a voluntary
statement or voluntarily submit to an interview.
The considerations are simple in this regard.
The default position is that no statement is to be
given. However, defence counsel may consider
advising the client to voluntarily speak to police
if: (1) what the client would say is exculpatory;
(2) the client would present well; and (3) at the
very least, the police have an open mind about
whether or not to lay a charge.
The only reason to advise an accused that he or
she submit to a voluntary police interview is for
the purpose of attempting to persuade the police
that they ought not to lay a charge in the first
place. Often, the teacher’s side of things may
already be known to police (because the teacher
may have already provided some kind of initial
report to the school district) and teachers often
present as decent, law-abiding citizens, impressive to police.
Police should be advised promptly as to the decision as to whether or not a statement will be
provided. If one is to be provided, arrangements
can be made. On the other hand, once police
learn that a statement is not going to be provided, they will then go to the next step (which
is usually to make a decision on whether or not
to lay a charge and to either close their file or to
lay the charge).
In teacher cases, the accused is usually contacted by police and asked to come into the po-
If it appears that police have already decided to
charge the client or they are fairly negative
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Risk Management in Canadian Education
February 2012 Volume 12, No. 3
lice station. Until recently, it was fairly rare for
a teacher to be arrested outright. Most teacher
cases involve allegations of very minor assaults
or sexual allegations on the lower end of the
scale (such as minor groping). Sometimes the
allegations are that the teacher has had a sexual
relationship with the complainant where there is
no longer a continuing risk to the complainant
(because the sexual relationship is allegedly
over and/or the complainant’s parents and/or
police are in a position to ensure that it does not
continue). In the “good old days”, the police
would then take a statement and make a decision as to whether or not to charge the teacher.
When they did charge the teacher, they would
generally refrain from actually taking him or her
into custody, as opposed to releasing him or her
with a Promise to Appear, Appearance Notice or
Undertaking to compel his or her subsequent
attendance for photographing and fingerprinting, and attendance in court.
Unfortunately, the Supreme Court of Canada
has very recently articulated the law with respect to in-custody police interrogations so as to
57
create a very draconian situation in Canada.
The Court has essentially given the police a
blank cheque in terms of interrogating suspects
with some degree of aggression and even some
deceit. As long as police advise an accused of
his or her right to counsel and allow him or her
even a minimal opportunity for legal consultation before the interrogation, they can then go at
him or her as long as they want, and pretty
much as hard as they want, without the right to
have counsel present. The right to reconsult
counsel during interrogation is so limited as to
be non-existent. The courts are not to evaluate
or second guess the quality of the preinterrogation legal advice that the accused received, on the basis that this would intrude upon
solicitor-client privilege. Accordingly, even a
telephone call of a few minutes’ duration with
duty counsel in respect of an allegation of first
degree murder would qualify. The majority of
the Supreme Court felt that the right to counsel
during interrogation would bring criminal investigations to a halt. The minority noted that the
right to counsel during interrogation has existed
58
in the United States for almost half a century.
The New York Times reports that the United
States has the highest adult incarceration rate in
59
the world. Accordingly, with all due respect,
the suggestion that allowing accused persons the
right to legal counsel during police interrogation
would prohibit criminal investigation defies
logic.
Unfortunately, this appears to be changing in
sexual cases. It is becoming more and more
common for police to simply take the accused
teacher into custody right at the outset. They
still tend to telephone him or her and ask him or
her to come down to the police station for that
purpose. It is still extremely rare for the police
to go out to where the teacher is and actually
make an arrest without prior warning.
Police are very skilled at interrogation. Unlike
television dramas (where police are often shown
as slapping suspects around to get them to give
statements), police are forensically trained to use
relatively unobjectionable techniques to get a
56
suspect to open up and talk. Accordingly, intense pre-interrogation legal advice is called for
and, in my respectful submission, the presence of
legal counsel during a police interview with
one’s client is necessary if it can be achieved.
My (admittedly cynical) belief is that the increasing tendency to arrest teachers outright
with respect to sexual allegations is due to a
growing attitude of political correctness and/or a
police reluctance to question the allegations of a
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Risk Management in Canadian Education
February 2012 Volume 12, No. 3
sexual complainant (or their families), coupled
with the recently-clarified rules for police interrogation in Canada.
3.
It seems to me that this new police approach of
starting out with an arrest in sexual cases is not
necessarily the wisest course for police. By pursuing this course, they pass up the opportunity
to get a voluntary statement. Once an accused is
arrested, defence counsel will almost certainly
advise them not to give police a statement under
any circumstances, as noted above. Additionally, an arrested suspect is more likely to heed
this advice. There is nothing like being put in
handcuffs to convince a suspect that the police
are not on their side and are not his or her
“friend”.
3.
Any other just cause, including where detention is necessary in order to maintain
confidence in the administration of justice
having regard to all of the circumstances
64
(the tertiary ground).
(a)
The Crown has the onus of establishing the need
to keep the accused in custody pending trial or,
failing that, what conditions should be imposed
60
on release. Pre-trial detention is to be the ex61
ception to the norm.
The three grounds upon which bail can be denied or limited are as follows:
2.
Where detention is necessary for the protection or safety of the public, including
any victim or witnesses, having regard to
all of the circumstances (the secondary
63
ground). This includes any substantial
likelihood that the accused will commit a
crime or interfere with the administration
of justice if released.
The apparent strength of the
Crown’s case;
(ii)
The gravity of the offence;
(iv) The potential for a lengthy
term of imprisonment.
Obviously, once a teacher is taken into custody,
securing his or her judicial interim release (bail)
becomes an immediate priority.
Where detention is necessary to ensure
62
attendance in court (the primary ground).
(i)
(iii) The circumstances surrounding the offences commissioned; and
Speaking to Bail
1.
There are four enumerated factors
that are included in what the court is
to consider in considering the tertiary ground:
(b)
Defence counsel often consider the
tertiary ground to be the “lynch
mob” provision, because the Crown
sometimes relies on the notoriety or
public outcry in a particular case,
including media attention.
(c)
An excellent exposition of the principles relating to the tertiary ground
65
are set out in R. v. B.(A.), The
court’s duty to be fair and objective
on bail applications “remains the
same despite shifting public opin66
ion”. The fears or anger of the
complainant’s family are not a factor to be considered with respect to
this ground, otherwise very few
67
people would ever achieve bail.
Importantly, the court is not to pander to the lynch mob or the media:
[17] The requirement to consider “all the circumstances” in section 515(10)(c) means that
46
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February 2012 Volume 12, No. 3
a judge must consider both recent events in the
community and the broader social context in
which the offence is alleged to have occurred.
One of the strengths of our legal system is that
judges are part of their communities. Judges are
not a hermetically sealed group living apart from
society. Judges, along with their families and
friends, work and live in the broader community
and we are neither oblivious nor indifferent to
important social issues. Judges are exposed to
the same media coverage of crime: we read the
same newspapers, we listen to and watch the
same radio and television programmes. As a result, judges share many of the concerns of the
broader community. In my view, it is entirely
appropriate for a judge to consider these
broader concerns when making the difficult assessment required under s. 515(10)(c). However, while our decision is to be informed by an
appreciation of such concerns, this does not
change the essential nature of our judicial task.
We must act objectively and dispassionately
and apply the law as enacted by Parliament and
interpreted by the appellate courts. We must
not do otherwise, even if our intention is to appease perceived public opinion. As Glithero J.
observed in R. v. Stevenson, [1998] O.J. No.
4390 (S.C.J.) at para. 34, “I would think it clear
that bail should not be denied simply because it
might be popular in the eyes of the public or
some significant segment of it.”
public often adopts a negative and even emotional attitude towards criminals or powerful
criminals. The public wants to see itself protected, see criminals in prison and see them
punished severely. To get rid of a criminal is to
get rid of crime. It perceives the judicial system harshly and the administration of justice
in general as too indulgent, too soft, too good
to the criminal. This perception, almost visceral in respect of crime, is surely not the perception which a judge must have in deciding
the issue of interim release. If this were the
case, persons charged with certain types of offences would never be released because the
perception of the public is negative with respect to the type of crime committed, while
others, on the contrary, would almost automatically be released where the public’s perception is neutral or more indulgent. The
criminal law and its application also has, and
must have, an educational value for the public. An informed public must understand that
the existence of the presumption of innocence
at all stages of the criminal process is not a
purely theoretical notion, but a concrete reality and that, despite what may happen, in its
perception, for certain inconveniences with
respect to effectiveness in the repression of
crime, it is the price that must be paid for life
in a free and democratic society. Therefore,
the perception of the public must be situated
at another level, that of a public reasonably
informed about our system of criminal law
and capable of judging and perceiving without
emotion that the application of the presumption of innocence, even with respect to interim release, has the effect that people, who
may later be found guilty of even serious
crimes, will be released for the period between the time of their arrest and the time of
their trial. In other words, the criterion of the
public perception must not be that of the
lowest common denominator. An informed
public understands that there exists in Canada a constitutionally guaranteed presumption of innocence (s. 11(d) of the Charter)
and the right not to be denied reasonable bail
68
without just cause (s. 11(e) of the Charter).
[18] In considering public opinion, “(c)ourts
must be careful not to pander to public opinion
or to take account of only the overly excitable.”
As Justice Trotter puts it in his authoritative
text, The Law of Bail in Canada, “Permitting the
detention of an accused on the basis of the public interest is not a warrant to judicially recognize and bend to public clamour or hysteria.” In
Hall, McLachlin C.J.C stated that the touchstone for s. 515(1)(c) must be “a reasonable
member of the community” who is properly informed about “the philosophy of the legislative
provisions, Charter values and the actual circumstances of the case.” Similar sentiments
were expressed with respect to the predecessor
to s. 515(10)(c) by Baudouin J.A. in R. v.
Lamothe (1990), 58 C.C.C. (3d) 530 (Que.
C.A.), at 541:
[Emphasis added by the court]
[Footnotes omitted]
With respect to the perception of the public,
as we know, a large part of the Canadian
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Risk Management in Canadian Education
February 2012 Volume 12, No. 3
Teachers tend to be good candidates for bail.
The allegations usually represent their first
brush with the law. They often have stable roots
in the community, excellent reputations and present small risk to the public if they are allowed
to remain at liberty pending trial. Unlike the
case with hardened criminals, teachers are going
to make bail and it is hard to force them to sit in
cells for a few days or a week while defence
counsel puts together a case for release. Also,
defence counsel can usually get reliable information to support a case for bail rapidly. Accordingly, defence counsel generally wants to
bring the bail hearing on the same day that the
teacher is arrested, mere hours after counsel is
retained. With teacher cases, the problem is not
getting the teacher out on bail per se, but in obtaining bail with reasonable conditions.
breach of the bail condition. Legally, this is not
the case, if the accused is in the same place as
the complainant for his or her own legitimate
69
reasons and not to bother the complainant.
Practically speaking, the accused should be advised to avoid being in the same location as the
complainant as it provides the complainant with
an opportunity to exaggerate the facts and fabricate an allegation of bail breach, which gives
rise to the potential for revocation of bail and
incarceration pending trial.
Sometimes police ask for other conditions restricting the ability of the accused to interact
with persons under 18, such that the accused be
prohibited from having any unsupervised contact with unrelated minors, or prohibiting the
accused from being in public places where minors are expected to be (such as schools, playgrounds, swimming pools, etc.). Such a bail
condition is the pre-conviction equivalent of
conditions that a court is entitled to impose only
after conviction for an offence involving an un70
derage victim pursuant to the Criminal Code.
In most cases, such conditions are unwarranted
and unjustified. However, police often ask for
this without thinking and/or out of a desire to
restrict the accused as much as possible. Unfortunately, a justice of the peace on a bail hearing
that usually lasts only a few minutes may be
overly prepared to accept such a condition without in-depth analysis. It must be kept in mind
that a bail hearing takes place right at the beginning of a proceeding before either the police or
the defence have the full factual picture.
If certain bail conditions are put in place, a
teacher can sometimes be legally prohibited
from attending at the school. Given the long
wait for trial dates, and the fact that bail conditions can significantly limit an accused person’s
freedom, it is imperative for defence counsel to
work hard to achieve the most minimal bail
conditions possible.
One bail condition that is almost always imposed is one prohibiting the accused from having any contact, direct or indirect, with the complainants. In some cases, where the accused
lives very close to the complainant’s residence
or in a small community where the accused is
almost certainly going to run into the complainant from time to time, defence counsel can often
have the “no contact” provision watered down
somewhat, so as to prohibit the accused from
only initiating contact.
Thus, it is up to defence counsel to be ready to
oppose the need for such conditions at the bail
hearing. We can stress that accused persons
have the right not to be denied bail without just
cause pursuant to s. 11(b) of the Charter or
:
Rights and Freedoms. As noted in R. v. Pearson
The police often consider the fact of an accused
being in the same room or place as the complainant as “contact” sufficient to constitute a
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Risk Management in Canadian Education
February 2012 Volume 12, No. 3
The Crown must establish the necessity of such
a condition in relation to the criteria for release.
Gary Trotter notes as follows:
[47] Section 11(e) guarantees the right of any person
charged with an offence “not to be denied reasonable bail
without just cause”. In my opinion, s. 11(e) contains two distinct elements, namely the right to “reasonable bail” and the
71
right not to be denied bail without “just cause”. . .
. . . the imposition of conditions must be approached very
cautiously. There may be a temptation at bail hearings to
right all wrongs and intervene in a substantial way in the accused person’s life. As such, the bail order begins to resemble
a probation order or a conditional sentence. At the pre-trial
stage this is improper. As Lamer, J.A. (as he then was) held in
Keenan v. Stalker [(1979) 57 C.C.C. (2d) 267 (Que. C.A.)]:
It must be emphasized that at the bail hearing
stage, the accused is presumed innocent. Accordingly, the current bail regime in the Criminal Code was intended “to encourage the release
of accused persons”, and thus “a corollary of
this principle is that an accused is to be released
72
in the least onerous manner possible”. The
onus is on the Crown or police to justify each
73
and every bail condition (except in reverse
onus cases pursuant to s. 515(6) that almost
never apply to teachers). In considering what
conditions to impose, courts are to adhere to the
“ladder principle” set in s. 515(2), which sets
out the ascending order of the types of release
available if the court is not prepared to release
74
the accused on his own recognizance. This
principle was recently summarized very well in
R. v. Anoussis:
Society did not intend to give itself the right to invade the
private life of the accused to the same extent that it recognizes it has in the case of someone whose marginality
(“marginalité”) has been proven beyond a reasonable
doubt.
Thus, in the determination of what conditions are appropriate, the proper role of bail conditions and their relationship
to the criteria for release must be kept in mind as a check
79
against overly intrusive conditions.
[Footnotes omitted]
4.
The first order of business, in dealing with the
district in relation to a teacher criminal case, is
to bring it into the information loop regarding
the criminal proceeding. In most cases, the district is going to find out about the criminal proceedings in any event. This is especially so
where the incident in question is noticed by
other teachers, students or staff, where there is
media attention to the case or where bail conditions are imposed that limit the teacher’s ability
to tend at the school or interact with children.
However, sometimes the alleged incident did
not actually occur or, if it did, it did not occur at
school or otherwise come to the attention of the
district.
[23] The structure for interim release adopted in Part XVI has
been called the “ladder” principle. At its core this means, as already noted, that release is favoured at the earliest reasonable
opportunity and, having regard to the risk of flight and public
protection, on the least onerous grounds. The first option to
consider is release upon an undertaking without conditions (s.
515(1)). Second, if the prosecution considers that this will not
secure the aims of Part XVI it may seek to show cause for other,
non-monetary conditions (s. 515(2)(a)). Only in the last resort
should those conditions include a requirement for cash by deposit or recognizance by the accused or a third party (s.
515(3)). These are the steps on the ladder. Even then, however,
there is a progression in the types of cash conditions that may
be sought and imposed under paragraphs 515(2)(b) through (d)
and (e) and, again, the policy favours less onerous conditions
75
unless cause is shown for more onerous grounds.
There are numerous benefits for informing the
district of the criminal matter, and keeping it upto-date with respect to the status thereof:
[Footnotes omitted]
76
Bringing the District into the Loop
77
See also: R. v. Horvat; R. v. Thompson; and
78
R. v. Sharma.
49
Risk Management in Canadian Education
1.
February 2012 Volume 12, No. 3
The defence can establish a significant
degree of goodwill and trust with the
district, both in the context of any particular case and with respect to the defence counsel in general.
(a)
2.
I once defended a teacher charged
with respect to an out-of-school incident involving a family member
(who happened to be a student at
her school) that had not initially
been brought to the attention of the
district, because previous defence
counsel had not considered it necessary. The teacher initially went
on a stress leave. When I was retained, the stress leave was about to
expire in a couple of days and I
knew that the school district would
then want to consider the question
of whether or not the teacher should
be allowed to remain in her teaching position at school. I contacted
the superintendent who was quite
justifiably upset at being advised of
the matter with only two days left
in the teacher’s stress leave because
she felt that she was going to be
called upon to make a decision with
respect to potential suspension on
very short notice. In that case, we
assured the superintendent that we
would not be forcing the issue, but
would have the teacher remain
away from the school for a sufficient amount of time to allow the
district to consider the matter.
Goodwill was established with the
district at that point.
3.
50
Defence counsel can reduce the hassle,
expense and delay for both the teacher
and the school district.
(a)
In one case, I contacted the district’s
legal counsel at home during the
evening to advise of the teacher’s arrest and of the fact that police were
on the way to the school with a
search warrant. This was so that, in
addition to being aware of the case,
the district could make appropriate
arrangements to have staff available
at the school to admit police and allow the search to continue as required by the warrant. We could not
have prevented the search but the
teacher in such a case has nothing to
gain by making the process a longer
and more difficult one, such as by
allowing police to simply show up
at the school and have to wait for
several hours while the district is notified and finds people to attend at
the school and admit police.
(b)
I note that the saying “what goes
around, comes around” or “it works
both ways” applies. There have been
times where district counsel has
contacted me or the Alberta Teachers’ Association (“ATA”) regarding
a potential criminal allegation or arrest with respect to a teacher, enabling us to get working on the matter without delay.
This allows the district to address its
own public relations concerns with respect to the teacher’s criminal case. The
defence has nothing to gain by the district
being blindsided with news of the charge
and thus being forced to react quickly and
Risk Management in Canadian Education
February 2012 Volume 12, No. 3
without consideration to media inquiries.
Advising the district of the matter gives it
the opportunity to give calm consideration
as to how it should deal with public relations concerns. To the teacher’s benefit,
this increases the odds that the district will
react in a more considerate and reasonable
fashion and reduces the odds that the district’s public reaction will be panicked or
rushed in such a fashion that it will hurt
the teacher as well as the district.
4.
Once the district is advised of the matter, defence counsel may have some input into the district’s consideration of
what steps it has to take.
5.
Advising the district opens the lines of
communications between the defendant
teacher and the district, which should
be maintained throughout the criminal
matter as the district will be along for
the ride. This does not mean that the
teacher or defence counsel must agree
with the district’s position on every issue.
However, it allows the communication,
which can lead to compromise of benefit
to both sides on issues as they arise.
case. A vilified teacher makes the district that
employed him or her look bad and this also stirs
up the parental community, which may make it
difficult for the district to “do the right thing”.
A rational and principled approach in good faith
by both sides with respect to issues that arise is
beneficial. This helps to identify and narrow
those issues which are in dispute and increases
the odds of achieving the best results on issues
of common interest to both parties.
In defending a teacher in a criminal case, I am
not out to hurt the school district. I do not get
points in heaven for making the life of its personnel unnecessarily difficult. Working together, where possible, allows for the mercenary
interests of both the teacher and the district to be
achieved, insofar as is possible. Again, it does
not assist the teacher if the district reacts to a
teacher criminal case by doing something that is
ill advised. The defence does not gain if the district jumps off a bridge (metaphorically speaking), because in such cases the district often
takes the teacher along with it.
More specifically, defence counsel should bear
in mind that the district has its own obligations
and desires in terms of dealing with cases of alleged teacher crime and will take steps to deal
with same:
Both the teacher and the district should recognize that the other side has legitimate interests to
be concerned with from the beginning and
throughout the criminal process. On many issues, a compromise can be crafted so that one’s
client achieves what is necessary while the other
side’s needs are accommodated as well. Although the interests of the district and the
teacher are not identical on every point, there
are significant areas of common interest
throughout the life of a criminal file that both
sides should exploit. For example, neither the
teacher nor the district profits from extensive
negative media or community attention to the
51
1.
the safety of students, staff and school
property;
2.
the district’s reputation, primarily with the
parental community;
3.
the loss of the services of a valuable
teacher for at least a temporary period of
time;
4.
potential employment litigation regarding
transfer, suspension or termination; and
5.
potential civil action.
Risk Management in Canadian Education
February 2012 Volume 12, No. 3
Another important duty that districts must bear
in mind in such cases is their obligation to treat
their employee teacher fairly and reasonably
80
pursuant to the School Act and basic employment law. The district must appreciate that the
teacher may not be guilty of the allegation, that
he or she wants to ensure a continuing income
stream and the fact that a calm school environment fosters better investigation. Unfortunately,
this is a fact that is sometimes overlooked by
districts reacting to what is admittedly a difficult
situation, especially in the early days of a criminal file. Defence counsel should not be shy in
reminding the district of this obligation and the
fact that the teacher may be exonerated in the
end.
A.
Addressing the Teacher’s Status Pending
the Outcome of the Criminal Investigation
or Proceeding
The issue that often demands immediate attention at the outset of a teacher criminal file is the
question of the teacher’s employment status
pending the outcome of the police investigation
or criminal proceeding. The specific issue is as
to whether or not the teacher must be removed
from the school and, if so, on what terms.
Generally, neither the district nor the teacher
want the teacher to continue in the school pending the outcome of a criminal investigation or
proceeding. The district often has a legitimate
concern that the allegations might be true, such
that allowing business to continue as usual
might involve an unacceptable risk to students.
The district must take into account the possibility that the allegations are true and thus protect
school staff and students from exposure to a potential risk while, at the same time, taking into
account its duty to its employee teacher who
may turn out to be falsely accused. From the
teacher’s perspective it is a tough gig to be
working in a school environment with allegations swimming around them. The situation
creates distraction that could impair or even
preclude the teacher’s ability to carry on teaching effectively. The teacher is likely to find the
school environment stressful, even hostile,
while unproven allegations are out there. Teachers charged with offences are usually devastated
by the allegations, physically and emotionally,
affecting their ability to teach. Teaching is difficult enough without having to watch one’s back
as well.
Unfortunately, I have been involved in some
cases where the district has reacted to a teacher
criminal case by way of a negative, knee-jerk
reaction. Sometimes a district has taken steps
to effectively coat itself with Teflon, so as to
make its image look good at all costs, regardless of whether or not the teacher is guilty or as
to what impact this will have on the teacher.
Sometimes, the district will move to suspend
and then terminate as soon as possible without
waiting for the conclusion of a police investigation or criminal proceeding, so as to be able
to maintain to the public that the teacher’s connection with the district has been severed.
Again, I submit that this is not the wise course.
Not only is it inflexible but, as detailed below,
the district can end up painting itself into a
corner and expose itself to a large damage
award in either civil court or at a board of
reference.
Fortunately, these types of cases have been the
minority in my practice. Many districts want to
“do the right thing”.
Sometimes the district considers it appropriate
not to take any steps to suspend or remove the
teacher from school. This is particularly so with
respect to minor allegations, or where they ap52
Risk Management in Canadian Education
February 2012 Volume 12, No. 3
pear to be unfounded on their face. Admittedly,
this is not the route that districts take in many
fact scenarios.
nal investigation or proceeding will impair its
ability to put the teacher back in the school in
the context of community perceptions if the
teacher is later cleared. Even if the district ends
up not liking the teacher in the end, it may be
faced with an order from a board of reference to
reinstate the teacher and, accordingly, the district should not take unnecessary steps that will
make its compliance with such an order difficult
or expensive.
Sometimes the teacher is legally prohibited from
attending at the school by the criminal justice
system, such as where certain bail conditions are
in place, as discussed above.
Accordingly, it is imperative at the very earliest
stage that defence counsel raise the issue of the
teacher’s status pending the outcome of the
criminal matter with the district and, if the
teacher is to be removed from the school, to negotiate the terms of that removal. Again, both
sides should address the other candidly and in
good faith so as to avoid litigation, a hardening
of positions or unnecessary publicity.
The district can usually remain essentially
neutral during the course of any criminal investigation. Canadians understand the concept of a
suspension with pay whereby the employer is
not prejudging the issue, either way. The district
can thus meet all of its own legitimate interests
and leave itself as much room as possible to
deal with the outcome of the criminal proceedings, whatever they may be.
Rationally, the district should want to keep its
options open so as to leave itself as much room
to maneuver as possible regardless of the outcome of the criminal investigation or trial process. I submit that the district should avoid any
comments or actions that could later be argued
to amount to admissions of liability or otherwise
tie the district’s hands in the defence of a subsequent civil action. If the district publicly refers
to the teacher as being guilty from the outset, it
will lose the ability to argue that the teacher
was, in fact, innocent in a subsequent civil case.
In the civil case, the district’s first line of defence will usually be that the teacher did not
commit the offence (in common cause of the
teacher) with the district’s fallback position being that if the allegations are true, it is not liable
(directly or vicariously).
The short term options for a district faced with a
teacher who has to be removed from the school
pending the outcome of criminal proceedings
can be summarized as follows:
1.
The teacher may be “unassigned from
duties”, except perhaps from central office or other duties that do not involve
contact with students. Indeed, this is
usually the status of the teacher initially
after the allegations come forward, while
the district engages in collecting even the
most basic information about what the allegations involve.
(a)
The district should also leave open the option to
put the teacher back in the classroom if the
teacher is ultimately exonerated. Public comments from the district to the effect that the
teacher is guilty during the course of the crimi53
As defence counsel, I am loath to
force a district acting in good faith
to commit to a suspension immediately, but prefer to allow it, with a
reasonable amount of time, to look
into the matter. Forcing the district
to “fish or cut bait”, by insisting that
Risk Management in Canadian Education
February 2012 Volume 12, No. 3
the it either put the teacher back in
the classroom or suspend him or her
81
pursuant to the School Act, is not
in the teacher’s best interests.
2.
The teacher may be suspended under
s. 105 of the School Act.
(a)
The superintendent can suspend a teacher
if he or she comes to the opinion that “the
welfare of the students is threatened by the
82
presence of the teacher”. The district’s
board can suspend the teacher if it has reasonable grounds for believing that the
teacher is guilty of gross misconduct, neglecting the teacher’s duty or refusing or
neglecting to obey a lawful order of the
83
district.
(b)
(c)
It is not in the teacher’s best interests to
have a suspension out there in the context
of defending the criminal case. After all,
that means that the superintendent has
formed the opinion that the welfare of students is threatened by the presence of the
teacher, or the district has reasonable and
probable grounds to consider the teacher
guilty of gross misconduct or neglect of
duty. At the very least, these grounds are
not beneficial in the context of defending
the criminal case.
(d)
In practice, the fact of a suspension (even
if a teacher is ultimately reinstated) significantly impairs the teacher’s ability to
ever seek employment for another district
in today’s employment environment. If
the district elects to suspend the teacher, it
becomes obligated to report the fact of the
suspension to the Department of Learning
and the ATA for professional misconduct
84
investigation.
(e)
A suspension can be appealed to a board
85
of reference but this is an option that is
usually unwise for a teacher to pursue.
Again, the teacher usually does not want
to go back to the classroom until the
criminal case is resolved, as noted above.
Also, unlike the case involving a termination, the district need only establish the
reasonableness of the suspension, not that
the teacher actually committed the crime
alleged, to justify a suspension. This is not
usually difficult to establish if the teacher
has been charged with a criminal offence.
If the teacher loses the appeal from the
suspension to the board of reference, his
or her contract may be terminated by the
86
Board of Reference.
Accordingly, a negotiation between the district
and defence counsel and/or the ATA can
address which option (suspension or being
unassigned to duties) should be chosen. There is
opportunity to persuade a district to leave a
teacher unassigned to duties, as opposed to going the suspension route. Either way, a negotiation can facilitate the paperwork necessary. It is
common for me to agree to accept and acknowledge service of a suspension letter on behalf of a
teacher.
More and more often, superintendents and
districts are ameliorating the language
employed in suspension letters so as to
leave open, the option of ultimately returning the teacher to the classroom. A
suspension letter can use language such as
“given the allegations, the possibility that
you might be guilty creates a risk” or “if
the allegations are ultimately proven to be
true, you could be a risk to the welfare of
students”.
These days, districts usually choose to leave a
teacher unassigned to duties or under suspension
54
Risk Management in Canadian Education
February 2012 Volume 12, No. 3
pending the outcome of criminal proceedings. I
submit that this is usually the wisest choice. The
outcome of the criminal proceedings will usually make the employment outcome clear or
significantly limit the issues. If a teacher is
found guilty, the district can usually expect a
resignation without the further hassle and expense of concluding its own investigation and/or
pursue termination proceedings, up to and including a board of reference. This option also
allows the district to leave the investigation of
the allegations to the police, who are better forensically trained and have more power (such as
the ability to obtain search warrants). The district will almost always benefit from the results
of the police investigation. In many cases, the
police keep the district informed of the evidence
they find. To the extent that the matter goes to
court, the district will have the benefit of observing the evidence that comes out during the
proceedings. Importantly, this reduces the
possibility that the evidence in the case will be
unintentionally tainted by an inexpert district
investigation. This is of particular risk in sexual
cases, as discussed below.
Bench, if that is where the trial ultimately proceeded. The Supreme Court of Canada has held
that eight to 10 months’ delay between the date
the charge is laid and the conclusion of Provincial Court proceedings (preliminary inquiry or
trial) is acceptable without violation of the accused’s right to an expeditious trial pursuant to
87
s. 11(b) of the Charter. However, in practice,
much longer periods have been allowed. These
days, so-called “law and order” politicians are
keen on pouring money into police resources
and prisons, while being niggardly with funds
for courtrooms, judges, prosecutors or court
staff.
In some cases, districts move to sever the employment relationship of a teacher as soon as
possible after an allegation comes forward,
without waiting for the outcome of criminal
proceedings. Sometimes this has been due to a
strong belief in the guilt of the accused and/or
an overweening desire to minimize negative
publicity for the district. Usually, the potential
cost of maintaining a teacher under suspension
or unassigned to duties pending the outcome of
criminal proceedings is not a significant factor
in such decisions.
Unfortunately, leaving the teacher unassigned to
duties or under suspension costs money, in
terms of the continuing obligation to pay the
teacher’s salary and benefits while the criminal
proceedings carry on. It is trite to note that this
may be worth it if the teacher is ultimately exonerated and the district is thereby able to regain
the ability to employ the teacher’s valuable services. In more recent years, the backlog in terms
of the amount of time necessary to bring a
criminal case to trial has been increasing. When
I began practice in 1982, it usually took about
three months to a Provincial Court trial or preliminary inquiry, followed by three to six
months to get the matter to trial in Queen’s
Again, taking this position at the outset is
fraught with danger for the district. Initial perceptions of the case may ultimately prove to be
very wrong and the teacher may ultimately be
exonerated in very clear terms, either by the police closing their file without charging or by a
strongly-worded acquittal. If the teacher is ultimately cleared, the district may be looking at a
board of reference with very poor possible outcomes. Terminating the teacher initially may
have whipped up the parental community such
that they will tolerate the teacher’s reinstatement, while the district might be legally obligated to reinstate the teacher by the board of
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February 2012 Volume 12, No. 3
reference. When districts come to negotiate a
resignation in that type of situation, it can expect to pay a very substantial settlement, indeed.
By going this route, the district thereby robs itself by arguing the teacher’s innocence in defending subsequent civil actions, as noted
above. It is difficult to see any sense in a district
cutting off its ability to raise a defence that the
allegations were untrue in subsequent civil proceedings if that can be avoided
clear that the allegations are just that, allegations
that have yet to be proven.
(B)
Once the district has collected enough information to deal with the initial employment issues
regarding the teacher (i.e., to resolve the
teacher’s employment status pending the outcome of the criminal matter), and to take steps
to ensure the continued good operation of the
school, districts will often suspend their investigation pending the outcome of the criminal matter. The district can hold back and allow police
to investigate serious allegations first.
(C)
District Investigation
When an allegation is made, a school district
typically begins to undertake its own investigation into the situation, in keeping with its obligations to staff and students. Almost always,
there is some investigation done at the school
level by school administration.
Messaging
Throughout the course of a criminal investigation or proceeding involving a teacher, defence
counsel can and should interact with the school
district to attempt to agree on messaging, i.e.,
what positions the teacher and/or district will
take in public with respect to the matter. As
noted above, one of the reasons why I communicate with the district about a teacher allegation
at the earliest stage, is to give the district the
opportunity to consider its messaging in response to the case.
In serious cases (especially sexual ones), this is
the wisest course. If the district undertakes its
own investigation while the police are investigating, it may work at cross-purposes with the
police or, worse yet, contaminate the evidence
pool. Again, the district can expect to share in
what the police discover and/or benefit from the
evidence called in the criminal proceedings. At
the very least the district can thereafter build
upon that information and limit its lines of inquiry so as to avoid unnecessary and costly duplication in its investigation.
In such situations, districts usually send a letter
home to parents at the school in question. This
is to address understandable parental concern
about the matter, especially where the media is
engaged in sensationalist reporting. It can serve
to clarify certain facts so as to prevent the rumour mill from spinning out of control with increasingly exaggerated and inaccurate fears of
what is really involved. This also provides the
district with the opportunity to advise the community as to what steps it has been taking or
will be taking, and to ask how things might unfold. The district can do this without unduly
hurting their teacher’s position and, at the same
time, limiting the district’s options in subsequent civil or other proceedings in the event that
the teacher is ultimately exonerated. Most of
such letters home to parents usually make it
An investigation of criminal matters involving
children, is forensically difficult. With respect,
such investigations are beyond the forensic capabilities of most districts. When child witnesses are involved, there is a high possibility
that an incorrect approach, however well meaning, will contaminate the witness pool by influencing the memories of child witnesses. Police
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February 2012 Volume 12, No. 3
have better training to conduct such investigations. Most police forces have adopted protocols
88
for the interviewing of child witnesses. Criminal defence counsel should be alive to the potential for evidence tainting in such cases and can
raise it to question the reliability of the fruits of
the police or district investigations, calling expert evidence if necessary. Districts should be
interested in preventing contamination of the
evidence pool which may make it difficult to
sort out what really did or did not happen and
provides ammunition for defence counsel.
that the superintendent or trustees can get any
kind of feel for how credibly they present. The
teacher’s counsel is afforded little or no ability
to cross-examine witnesses or otherwise challenge district evidence. If the teacher exposes
the full details of the defence case at the termination hearing level, the details thereof are
likely to be brought to the attention of the police, Crown and complainants, such that the
Crown witnesses will be given the opportunity
to alter their stories at the criminal trial to fit the
independent, objective evidence before they
have to commit themselves to a story under
oath.
Once the police investigation and any subsequent criminal proceedings are concluded, the
district can then conclude its own investigation
with the benefit of police investigation and the
evidence from the criminal trial process. If a
teacher is ultimately convicted, this usually results in a resignation without the district having
to undertake further investigation or litigation. If
the teacher is acquitted, outstanding issues for
district investigation will be significantly reduced in scope, at the very least.
5.
Evidence Preservation
Another important task for defence counsel, especially at the beginning of a criminal matter, is
to take steps to locate and preserve evidence that
might become important in the investigation or
ultimate litigation. This includes, but is not limited to, contacting the district to take steps to
preserve evidence it has in its possession.
Of particular importance is school video imaging. Many schools now have video surveillance
systems for their hallways and other areas. In
this digital age, these records can be retained for
weeks or months. However, they are never kept
forever, and the length of time the records are
maintained depends upon the district’s software
and the available server memory space. Accordingly, once an allegation is made, if there is any
possibility that digital imaging may exist, defence counsel should immediately contact the
district and ask it to preserve that kind of evidence.
Where the district presses on with its own investigation, up to and including the bringing of
termination proceedings, the well-advised
teacher will only deny guilt and take the position to require him or her to state the details of
his or her case before the conclusion of criminal
proceedings is unreasonable. Termination proceedings have almost none of the procedural
safeguards involved in the criminal trial process.
They are typically not recorded, such that district witnesses can later testify to a different
story in the criminal case and there will not be a
transcript of the story told at a superintendent’s
or district’s termination hearing that leaves no
doubt as to what was said on the earlier occasion. Witnesses do not give evidence under
oath. Indeed, they need not attend in person so
Additionally, there are usually other district records that may relate to the investigation, especially documents relating to the district’s own
investigation of matters. Typically, school ad57
Risk Management in Canadian Education
February 2012 Volume 12, No. 3
ministration will conduct some investigation
into the incident, resulting in notes or statements
from the potential witnesses. In my experience,
districts do not generally destroy these documents for quite some time after the allegations
come to the fore. Typically, I ask the district to
collect such documentation and records with a
view to applying to the court for an order directing their disclosure in criminal proceedings. I
also inquire of the district’s counsel as to its position on disclosing such documents, to the extent that they have not already been disclosed to
police.
garding relevance and to balance the accused’s
right to a fair trial against the privacy rights of
the Crown witnesses, the complainant or others.
There may end up being legal argument by the
Crown and defence as to what should or should
not be released. The court may direct that some
or all of the records in question be disclosed, to
both Crown and defence. This process is well
summarized in R. v. McNeil:
[7] In O’Connor, this Court set out a two-part test for production of third party records. First, the applicant must demonstrate that the information contained in the records is
likely relevant. In the appellate context, it was therefore incumbent on McNeil to show that the targeted documents
were likely relevant to his proposed application to introduce
fresh evidence on his appeal from conviction. Second, if the
threshold test of likely relevance is met, the court may order
production of the records for its inspection. With the targeted documents before it, the court weighs “the positive
and negative consequences of production, with a view to determining whether, and to what extent, production should be
ordered” (O’Connor, at para. 137). The second part of the
O’Connor test essentially requires a court to conduct a balancing of the third party’s privacy interest in the targeted
documents, if any, and the accused’s interest in making full
91
answer and defence.
In criminal cases any documents, records or information that come into the hands of the police
or the Crown must be disclosed to the defence
for the purposes of making decisions with respect to election and plea and the ultimate de89
fence of the case per R. v. Stinchcombe [the
“Stinchcombe regime”]. However, where there
are material and relevant records or documents
in the hands of third parties, criminal law provides for procedures by which the Crown or defence can obtain access to those records. For the
Crown, the police have various powers, such as
search warrants, to obtain such records. From
the defence prospective, applications can be
made to the court to direct third parties to produce the documents. There are essentially two
regimes for defence applications for third party
document production.
For sexual cases, the process is governed by
ss. 278.1-278.91 of the Criminal Code follow92
ing upon R. v. Mills [the “Mills” regime]. The
Mills regime is similar to the O’Connor procedure, with the addition of certain rules and evidentiary presumptions that apply only to sexual
cases. This process is also well summarized in
R. v. McNeil:
[30] It is important to note that the common law likely
relevance threshold in O’Connor differs significantly from the
statutory likely relevance threshold set by Parliament for the
production of records containing personal information in sexual assault proceedings under the Mills regime (see s.
278.3(4) of the Criminal Code). As this Court explained at
some length in Mills, a range of permissible regimes can
meet constitutional standards. It was therefore open to
Parliament to craft its own solution to address the particular
concerns arising from disclosure of third party records in sexual proceedings. In doing so, Parliament “sought to recognize
the prevalence of sexual violence against women and children
For non-sexual cases, the procedure is governed
90
by R. v. O’Connor [the “O’Connor regime”],
which provides for a two-stage process. In the
first stage, the defence applies to the court,
proving the existence of the records and that
they may be relevant to the case. If the court is
persuaded on those points, the third party (in
this case the school district) will be required to
produce the records to the judge to review re58
Risk Management in Canadian Education
February 2012 Volume 12, No. 3
date, the district has been quite prepared to disclose this information, as long as a O’Connor or
Mills order is obtained. We are thus usually able
to proceed by way of an uncontested O’Connor
or Mills application. This is to be contrasted
with the situation in most criminal cases, where
an O’Connor or Mills application is a hotly contested one. These applications can only be heard
by the trial judge. In the teacher cases in which I
have been involved, the court has always been
somewhat surprised by the fact that they go uncontested. They cannot go by way of consent
order.
and its disadvantageous impact on their rights, ... and to reconcile fairness to complainants with the rights of the accused” (Mills, at para. 59). The following differences between the two regimes are particularly noteworthy.
[31] First, the likely relevance standard adopted by Parliament under the Mills regime is tailored to counter speculative myths, stereotypes and generalized assumptions about
sexual assault victims and about the usefulness of private records in sexual assault proceedings. Such generalized views
need not be countered at large in respect of all third party
records that fall outside the Mills regime. The general common law threshold of likely relevance under O’Connor is intended rather to screen applications to ensure the proper use
of state authority in compelling production of third party records and to establish the appropriateness of the application
so as to avoid squandering scarce judicial resources.
[32] Second, while the Mills regime retains the two-stage
framework set out in O’Connor, it differs significantly in that
much of the balancing of the competing interests is effected
at the first stage in determining whether production should
be made to the court for inspection. This reflects Parliament’s assumption that a reasonable expectation of privacy
exists in the types of records targeted by the statutory regime: see R. v. Clifford (2002), 163 C.C.C. (3d) 3 (Ont.
C.A.), at paras. 48-49. An equivalent presumption of privacy
does not attach in respect of all third party records that fall
outside the Mills regime. Hence, any balancing of competing
interests is reserved for the second stage of the O’Connor regime, when the documents can be inspected by the court to
better ascertain the nature of the privacy interest, if any. Because of these significant differences, it is important not to
transpose the Mills regime into the O’Connor production
hearing in respect of documents to which the statutory dis93
positions do not apply.
Accordingly, if defence counsel becomes aware
of the existence of such documents, the district
should be contacted to collect up and preserve
them (in the first place), and district counsel
should be asked about the district’s position on
disclosure. Where the district does not want to
oppose disclosure (and the Crown never has in
my experience), defence counsel should make
arrangements with the Crown prosecutor and the
court to arrange for the prompt appointment of a
trial judge and the setting of the O’Connor or
Mills application date well in advance of the
trial date, so that both Crown and defence have
an opportunity to review any such documents
sufficiently in advance of the trial as to be able
to prepare their respective cases. If the trial is to
proceed in the Court of Queen’s Bench after a
preliminary inquiry, a Mills or O’Connor application cannot be made until the accused is
committed to stand trial after the preliminary
inquiry and the Court of Queen’s Bench thus
acquires jurisdiction to try to appoint a trial
judge and try the matter.
In teacher cases, the school and district personnel often provide police with some of these records, such as the complainant’s class schedule,
attendance records, school administration’s
notes or even witness statements or summaries
of what the witnesses said. To the extent that
this material is produced to the police, it must be
disclosed to the defence counsel pursuant to the
Stinchcombe regime. However, those relevant
and material documents that the district does not
turn over to the police, can be obtained by the
defence through the O’Connor or Mills regimes.
In all the cases which I have been involved to
[Editor’s note: This article is based on a paper
presented at a Lorman Education Services
Seminar: Teacher Appraisals and Dismissals in
Alberta, Edmonton • 28 April 2011.
59
Risk Management in Canadian Education
February 2012 Volume 12, No. 3
Brian A. Vail is a partner, practising
in the Edmonton office of Field LLP.]
62
43
65
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
63
64
[2010] A.J. No. 898, 2010 ABPC 245.
66
Unreported (September 17, 2010), docket no.
091322875P1 (Alta. P.C.), at p. 30.
67
68
Unreported (October 25, 1989), docket no.
C0150104882, per Murray P.C.J. (Alta. P.C.).
69
Ibid. at pp. 2-3.
70
Supra note 44.
71
Ibid. at p. 30, lines 7-9.
72
Ibid. at p. 30, line 39 – p. 31, line 9.
73
K. Jackson, “Teen Alleges Teacher Touched Him During School Trip” Edmonton Sun (25 October 2010); M.
Gillis, “Teacher Cleared Of Sex-Assault Charges” Ottawa Sun (27 October 2010).
74
75
R. v. Little, [2001] A.J. No. 69, 285 A.R. 85 (P.C.).
76
R. v. Mercer, [1992] N.J. No. 339 (S.C. (T.D.)); R. v.
Smith, [1994] S.J. No. 38 (Q.B.); R. v. Little, ibid.; R. v.
Basi, [2011] B.C.J. No. 420, 2011 BCSC 314.
77
78
United States of America v. Sheppard, [1976] S.C.J.
No. 106, [1977] 2 S.C.R. 1067.
79
80
Supra note 44.
81
Jackson, supra note 50; Gillis, supra, note 50.
82
F.P. Inbau, J.E. Reid, G.P. Buckley, B.C. Jayne, Essentials of the Reid Technique: Criminal Interrogations
and Confessions (Sudbury, Mass.: Jones and Bartlett,
2005).
83
84
85
R. v. Sinclair, [2010] S.C.J. No. 35, 2010 SCC 35; R. v.
McCrimmon, [2010] S.C.J. No. 36, 2010 SCC 36; R. v.
Willier, [2010] S.C.J. No. 37, 2010 SCC 37.
86
87
88
Miranda v. Arizona, 284 U.S. 436 (1966).
A. Liptak, “in 100 U.S. Adults Behind Bars, New Study
Says” New York Times (28 February 2008)
<http://www.nytimes.com/2008/02/28/us/28cndprison.html>; A. Liptak, “U.S. prison population dwarfs
that of other nations” New York Times (23 April 2008)
<http://www.nytimes.com/2008/04/23/world/americas/2
3iht-23prison.12253738.html>.
89
90
91
Criminal Code, R.S.C. 1985, c. C-46, s. 515(1).
92
R. v. B. (A.), [2006] O.J. No. 394, 204 C.C.C. (3d) 490
(S.C.J.), at paras. 10-12.
93
60
Criminal Code, s. 515(10)(a).
Criminal Code, s. 515(10)(b).
Criminal Code, s. 515(10)(c).
Supra note 61.
Ibid. at para. 13.
Ibid. at para. 16.
Ibid. at paras. 17-18.
R. v. H. (C.A.), [2010] A.J. No. 1354, 2010 ABPC 375.
Criminal Code, s. 160.
[1992] S.C.J. No. 99, [1992] 3 S.C.R. 665, at para. 47.
G. Trotter, The Law of Bail in Canada, 3rd ed., looseleaf (Carswell) at §6.3.
Criminal Code, s. 515(1).
Trotter, supra note 72, at §6.3.
[2008] Q.J. No. 9260, 242 C.C.C. (3d) 113 (Que. Ct.
(Crim. & Penal Div.)).
[1972] B.C.J. No. 540, 9 C.C.C. (2d) 1 (S.C.).
[1972] B.C.J. No. 400, 7 C.C.C. (2d) 70 (S.C.).
2010 ABQB 722, at para. 17.
Trotter, supra, note 72, at §6.5(b)(i).
R.S.A. 2000, c. S-3, s. 107(2).
Ibid. s. 105.
Ibid. s. 105(2).
Ibid. s. 105(1).
Ibid. s. 109.1.
Ibid. s. 232(2)(c).
Ibid. ss. 105(10) and 138(1)(b).
R. v. Morin, [1992] S.C.J. No. 25, 71 C.C.C. (3d) 1.
J.C. Yuille, B.S. Cooper and H.H.F. Hervé, “The StepWise Guidelines For Child Interviews: The New Generation”, in M. Casanato & Pfaffin, eds., Handbook of
Pedosexuality In Forensic Science.
[1991] S.C.J. No. 83, 68 C.C.C. (3d) 1; R. v. McNeil,
[2009] S.C.J. No. 3, 2009 S.C.C. 3.
[1995] S.C.J. No. 98, [1995] 4 S.C.R. 411.
R. v. McNeil, supra, note 89, at para. 7.
[1999] S.C.J. No. 68, 139 C.C.C. (3d) 321.
Supra, note 89, at paras. 30-33.