Canada: Cure For The Hangover: Criminal Investigation Issues For Teachers And School Districts — Part 1

I INTRODUCTION

I have been defending teachers charged with various criminal offences for 28 years. In this article, I will discuss considerations that apply to teachers and school districts in situations where a teacher is accused of criminal misconduct and cleared, either by way of the police or Crown deciding not to lay a charge or by way of an acquittal after a trial. While defending teachers is similar, in many ways, to defending others with respect to various criminal charges, the scenario facing criminal defence counsel for a teacher differs from that presented by the "standard criminal file" in a general criminal practice in many respects.

In particular, criminal defence counsel can be unfamiliar with the impact of a criminal charge on a teacher's life in general. They can be unaware of the consequences of a criminal allegation to the education system or the potential reaction of that education system to it. In the average criminal case, defence counsel is not significantly involved in interfacing with an accused's employer throughout the process, other than to collect evidence for the defence case. Unfortunately, this can result in steps being taken or a strategy being adopted in the defence of a teacher that are unnecessarily incompatible with the teacher's case in other arenas, especially with respect to employment issues.

While my goal is to end up with an analysis of the situation once the teacher has been cleared or acquitted, a full understanding of that situation requires a discussion of the criminal justice process (and the related consequences to teachers and school districts) leading up to that point.

II. TEACHER CRIMINAL DEFENCE RETAINERS

A. INTRODUCTION

The standard scenario involves a teacher being accused of a criminal offence in relation to his or her teaching duties. Such retainers have much in common with standard criminal defence matters.

However, there are a number of factors that make teacher files unique and different from the run-of-the-mill criminal file. The fact situations involve factors unique to teacher situations. The more the defence counsel is aware of these factors, the more effective counsel will be in presenting a defence. This affects both the issues of guilt/innocence and sentence. In particular, there is one defence that is unique to a teacher or parent criminal case — the application of s. 43 of the Criminal Code of Canada.¹ Defence counsel is also usually more directly involved in the multi-front war facing an accused teacher than is true in the standard criminal case where counsel's retainer is essentially restricted to the conduct of the criminal proceedings.

B. SIMILARITIES WITH THE STANDARD CRIMINAL DEFENCE RETAINER

The elements of the offence charged are the same for any criminal accused, teacher or non-teacher. The burden of proof is on the Crown to prove each and every element of the offence beyond a reasonable doubt. Defences available to a non-teacher accused are available to teachers, such as self-defence.² Also available to teachers are the defence of property (personal or real), including dwellings³ and prevention of an assault.⁴

In passing, I note that a common misunderstanding held by civil practitioners, including those who represent school districts, is that self-defence is not available to an accused who strikes the first blow. In fact, the majority of self-defence cases involve an accused who did strike the first blow. By definition, the accused finds him or herself in a situation where he or she must strike to prevent death or bodily harm occurring to him or her. In these situations, if the accused had failed to strike first, he or she would have ended up being the victim (injured or deceased) and the other party would have become the accused in a criminal proceeding. In addition, criminal procedure, as set out in the Criminal Code or other statute is the same for all accused.

C. THE DIFFERENCES

The differences between a teacher criminal defence file and a standard criminal defence file can be summarized as follows:

1. Defence counsel is faced with a multi-front war, involving more than merely the defence of the criminal proceeding;
2. The factual context of an offence alleged to have been committed in a school environment is unique in many ways;
3. The availability of the "teacher/parent defence" pursuant to s. 43 of the Criminal Code;
4. Funding of the defence and/or pursuit of remedies where the teacher is exonerated; and
5. The teacher's transition back into the school environment after verdict. I will discuss each of these in turn.

1. The Multi-Front War

(A) Introduction

A teacher accused of a criminal allegation is looking at four types of consequences that might flow therefrom:

1. Criminal investigation and possibly prosecution.
2. Civil action for damages.
3. Employment issues.
4. Professional misconduct investigation and possibly proceedings.

Defence counsel must take care to ensure that positions or steps taken on one front do not work to the teacher's disadvantage on any other front. Failing that, the strategy should prioritize which fronts are more important when faced with having to choose amongst options that do not work in the teacher's favour on all fronts, and to minimize the damage done to the teacher's position in those other fronts. Although many accused persons might face a similar multi-faceted set of potential consequences when investigated or charged with a criminal offence, in the standard criminal defence retainer, counsel is usually only directly involved in the criminal investigation or proceedings and the other fronts are left to the accused (perhaps with other counsel) to deal with.

(B) Criminal Investigation/Proceedings

Of course, defence counsel must assist the accused teacher through all of the stages of the criminal investigation and any proceedings that result therefrom. Defence counsel has a large role to play before a decision is made by the police or Crown as to whether or not to lay a charge. I generally have to advise the accused as to whether or not to submit to a police interview and to accompany the teacher at the police interview, if possible. Defence counsel can also become proactive in identifying and gathering the evidence at a very early stage. This can include the retainer of a private investigator to go out and locate, then interview, witnesses. The information gathered can assist counsel in advising the teacher on other issues, such as whether or not to submit to a police interview and in dealing with the employer school district. It can also provide potential ammunition for counsel to use in attempting to persuade the authorities to close the file without laying charges.

In teacher cases, defence counsel usually has significant opportunity to interact with police and/or the Crown before a charge is laid. We can sometimes persuade them that there is no criminal case against the teacher. In the more minor cases, the authorities can be persuaded that the matter is more appropriately left to be dealt with at the school or school district level without having to become a criminal prosecution.

Defence counsel is also called upon to advise the teacher, if charged, on a number of issues including election (i.e., mode of trial), plea, defence strategy and sentencing. We then go on to prepare for and run preliminary inquiries, trials and appeals.

Once the criminal aspect of the matter is concluded, by way of a police decision not to charge or an acquittal, counsel can assist a teacher in considering remedies against other parties (which is discussed in more depth below).

In my opinion, the criminal front is the most important of all. Where the strategy called for in the defence of the criminal matter is inconsistent with that on any of the other fronts, the considerations relating to the criminal case are trump.

It is only in the context of the criminal case that an accused can be jailed or given a criminal record. Logically, it is better to be an unemployed teacher on the street than an unemployed teacher behind bars.

Defence counsel, in general, are often questioned about how they can "defend the guilty". Sometimes the accused teacher is guilty of the offence charged (or a lesser and included offence) and sometimes he or she is innocent. Either way, defence counsel is ethically allowed, indeed obliged, to zealously represent the accused.⁵ The Law Society of Alberta is currently in the process of replacing the current Code of Professional Conduct with a Code adapted from one drafted by the Federation of Law Societies of Canada, Rule 4.01(1) of which carries forward this principle and reads as follows:

The Commentary to Rule 4.01(1) goes on to provide as follows:

Thus, even in cases where the accused admits guilt to counsel, there are many ways in which counsel can meaningfully represent and assist the accused — the lawyer is not required to speak to sentence or end the retainer.⁷

As the commentary notes, if the accused has made admissions to defence counsel, including an admission of guilt, counsel's options regarding the defence are limited so as to preclude the calling of an affirmative defence that is inconsistent with the client's admissions. Counsel cannot suggest that somebody else committed the offence, but can still argue that the Crown has not proven its case beyond a reasonable doubt on the reliable evidence. Defence counsel can still question the court's jurisdiction, challenge the admissibility and reliability of the Crown's evidence and raise any available Charter or technical defences. As A.M. Cooper notes, there are two bases upon which criminal defence counsel can continue to represent an accused who is known to be guilty, beyond merely assisting on sentencing issues.⁸

First, defence counsel have a recognized role in the system. It is not their place to prosecute or judge the client — that is up to the Crown prosecutor and judge (or jury), respectively. When one defends the guilty one is defending the system, i.e., the time-honoured principle that the accused is entitled to be acquitted unless the prosecution can prove the accused's guilt beyond a reasonable doubt, on admissible evidence, before a court of competent jurisdiction.

Second, defence counsel are bound by legal and ethical boundaries (noted above) in carrying out their duties. In addition to the prohibition from leading evidence to contradict the client's admissions noted above, Rule 4.02 of the Code of Conduct⁹ (about to be promulgated in Alberta) provides that, inter alia, defence counsel must not:

1. abuse the tribunal's process with cases brought purely out of malice or to injure the other party.
2. knowingly assist or permit a client to do anything dishonest or dishonourable.
3. knowingly attempt to deceive a tribunal, lead or rely on false evidence, misstate facts or law, suppress what ought to be disclosed, assist in fraud or criminal conduct.
4. deliberately refrain from putting binding legal authority that is directly on point before the tribunal (even if the other side missed it).
5. dissuade a witness from giving evidence or to be absent.
6. needlessly abuse, hector or harass a witness.
7. when acting for a complainant, attempt to gain the client a benefit by threatening criminal proceedings or to seek withdrawal/ dismissal of a charge.

In addition, counsel is bound by ethical rules regarding the handling of evidence per Rule 4.01(9):

The bottom line is that when the client has admitted guilt to counsel, counsel is left to a defence restricted to "you allege, you prove", Charter defences, technical defences (such as to jurisdiction) and arguments with respect to the admissibility of evidence.

(C) Civil Actions for Damages

Criminal offences often involve conduct and consequences thereof which give rise to potential liability for damages in civil court. For example, the teacher can be sued by the complainant for damages for assault and battery.

Where the accused is found guilty, he or she may be limited or even completely unable to defend allegations of fact in a related civil case. Section 26 of the Alberta Evidence Act¹⁰ provides that a finding of guilt and/or a conviction in a criminal case are admissible in a related civil case to prove that the defendant committed the elements of the offence. The conviction is to be given whatever weight the civil judge considers appropriate. The law is that while a criminal conviction is conclusive evidence of the teacher's guilt in the civil proceedings, it is entitled to very heavy weight where all of the evidence that bears on the civil liability issues was called (or could have been called) in the criminal case.¹¹ This does not apply where new evidence comes to light that was not available during the criminal case or where the elements of the offence charged do not cover all of the elements of the tort alleged in the civil case. These principles are based on the theory that the finding of guilt in the criminal case amounts to a finding that every element of the offence has been established beyond a reasonable doubt, which is more than enough to satisfy the civil burden of proof on a plaintiff to prove the case on the balance of probabilities. Attempting to relitigate the issues in the civil case can be seen as an abuse of the civil court's process. This is a recognition that an acquittal does not amount to a finding of "innocence" but merely a finding that all elements of the criminal case have been proven beyond a reasonable doubt.

That said, in some cases, a civil judge may give a criminal or quasi-criminal conviction little or no weight. Examples are where the criminal offence was a minor one or where the accused was not represented by counsel or where it was reasonable in the circumstances for the accused to plead guilty of something to avoid the cost of a legal defence (not to mention the time or trouble involved) to respond to the case in criminal court.¹² For example, a major car accident involving serious injuries and property damage may result in one of the drivers being charged with a minor traffic offence, such as the failure to set out appropriate flares around a disabled vehicle. A civil judge might consider it reasonable for that driver to have pled guilty and paid a fine of a few hundred dollars with respect to that offence, as opposed to hiring counsel (for far more money) and attending at least two court dates (sometimes in a remote part of the province) to defend the traffic charge. In such cases, civil judges, being human, have a tendency to want to decide things for themselves after investing the time and effort of hearing days or weeks of evidence in a civil case. The civil court may also give little or no weight to a criminal conviction where the elements of the offence charge do not completely overlap or cover the elements that the plaintiff has to prove in the civil case.¹³

On the other hand, an acquittal in the criminal case does not assist the accused in a related civil case, legally speaking. Indeed, the fact of the acquittal may not even be admissible evidence in the civil case.¹⁴ However, in practical terms, an acquittal is not totally valueless to the accused in the civil case. The fact that there was no conviction allows the accused to defend liability on all issues in the civil case. The acquittal can also cause a complainant to think twice about pursuing a civil remedy. Finally, it is difficult (if not impossible) to prevent the civil judge from learning of the acquittal (as it may play a role in the narrative of events necessary for the court to consider) and an acquittal cannot but prejudice the mind of the civil judge in favour of the defendant.

Although a civil case for damages may be available, it must be remembered that not every complainant is "in it for the money", i.e., pursuing some financial or civil gain. In my experience, such a motive usually plays no part in a complainant making the allegations in the first place. Where the teacher is not guilty of the allegations, the complainant's motivations for making a false accusation are usually different (e.g., revenge, rehabilitation of the reputation, the desire for positive attention or sympathy, etc.).

Indeed, it is common for a student to make allegations about a teacher in hopes of seeing a teacher embarrassed or even fired, without even appreciating the seriousness with which adults will treat the matter and without fully appreciating the firestorm that they may be igniting. I have been involved in many cases where student complainants have been genuinely taken by surprise when a remark made to a parent results in the involvement of police, lawyers and courts. Unfortunately, once children feel that they have committed to the lie in the first place, they feel unable to recant once the matter "goes viral" and becomes a full-blown criminal case.

That said, during the course of the criminal proceeding, the prospect of a civil claim (and financial reward) often comes to the attention of the complainant and, indeed, may ultimately assume a priority for them over time. Friends or family often suggest the possibility of a civil action as events play out.

Sometimes, the option of a civil case is discarded by the complainant and his or her family if a teacher is ultimately found guilty in criminal proceedings. To the extent that they were after a "pound of flesh", they are sometimes satisfied with the conviction and resultant career loss in disgrace suffered by the teacher. However, sometimes the fact of a conviction seems to encourage complainants to seek a civil penalty. Even then, complainants in such cases are often prepared to accept a settlement for less than what the claim is worth because (especially in sexual cases) much of what they are looking for is a recognition that they have been done wrong and some closure.

This does not mean that just because a teacher is acquitted or the police decide not to lay a charge in the first place that a complainant (and his or her family) will not resort to a civil action as Plan B. Indeed, to the extent that they were out for revenge or they do not feel that their case has been dealt with satisfactorily, this may be an option that they begin to consider in order to get their "pound of flesh".

However, in many, if not most, teacher cases, a claim for civil damages is not an option seriously considered by the complainant and his or her family. Minor assaults, where a student suffers only minor or transitory harm, do not have the potential for damage awards that justify paying a civil lawyer to accept a case on a contingency fee. A contingency fee of 35% of a few hundred dollars does not generally get a plaintiff's counsel excited about the case.

Complainants in school cases often consider the civil case as the last resort, because it is not a "free" way of attacking the teacher. In the criminal case, employment proceedings or professional misconduct proceedings, the complainant does not have to pay for the services of the prosecutors, investigators or others involved. Their pursuit of the teacher costs them nothing. However, considering a civil case against a teacher will cost them something (in terms of legal fees) and also gives rise to a possibility of having to pay costs to the extent that the teacher wins the civil case or, alternatively, does better in court than a formal offer made to the complainant (but not accepted).¹⁵ The fact is that in many teacher-student situations, where the incidents in question are fairly minor, many complainants and their families do not want to spend, or risk their own money, in pursuit of the teacher.

As far as the teacher's defence counsel is concerned, the possibility of a civil action in the future is an important consideration in making tactical and strategic decisions. Counsel should take care not to advance positions in the criminal case that might support a criminal defence but, at the same time, land the teacher "in the soup" on the civil side, unless absolutely necessary to win the criminal case. For example, a defence based on facts which establish professional misconduct for a teacher, while not amounting to a crime, might win the criminal case. Tendering such facts in the criminal case can only assist the district in attempts to sanction or terminate the teacher, or the Alberta Teachers' Association in investigating or disciplining the teacher.

In any event, defence counsel should make sure that admissions in the criminal case are carefully phrased and put into writing, such as in an Agreed Statement of Facts, for the trial or sentencing. This is an area where defence counsel can be very effective for a teacher who must admit to things in the trial or speak to sentencing. Often a plea bargain is struck whereby the accused agrees to admit only certain offences and to certain facts underlying those offences. Clear, written admissions leave no doubt as to exactly what the teacher admitted to, or was found guilty of, in criminal proceedings. The allegations admitted to are often far less what the complainant alleged, leaving the complainant in the position of having to prove more egregious facts alleged in the companion civil proceeding despite the finding of guilt in criminal court. For example, consider R. v. Eszczuk.¹⁶ In that case, the teacher was accused of fairly egregious incidents of fondling female students. In the end, he pleaded guilty to having patted students' backsides with no sexual intent, on the basis of a written Agreed Statement of Facts. He had been an overly-affectionate teacher who did not alter his style in the face of several warnings from administration. To the extent that any complainants seek to make the same allegations in the context of a civil case, they will have to prove any allegations more egregious than what Mr. Eszczuk admitted to on a balance of probabilities.

The potential of a civil case is also of concern to the school district. The reality is that the district will be the main target in any civil action, because of its relatively deep pockets. Acting rationally, the district should avoid doing anything at the outset of an allegation scenario, or throughout the course of the criminal proceedings, that limits or eliminates its options in defending a civil case down the road. For example, for a district to make statements that the teacher is, in fact, guilty may impair, if not eliminate, its ability to argue that the teacher did not "do the deed" in a civil case. This will be discussed in more detail below.

(D) Employment Issues

A teacher's employment with a school district will be negatively impacted by a criminal accusation or charge. As set out in more detail below, such allegations can result in suspension,¹⁷ termination¹⁸ and significant damage to the teacher's reputation. Defence counsel must recognize this from the start and either become involved on the employment front or retain co-counsel to do so.

In such cases, I end up working together with the Alberta Teachers' Association ("ATA"), which appoints a staff officer to oversee the defence. The staff officer authorizes disbursements (such as for private investigators, expert witnesses, etc.) and can also provide valuable input into the defence strategy and tactics. ATA staff officers are very experienced with the education environment and have a deep knowledge of all aspects of school environments and cultures, as well as the personalities involved (school administration, district administration, trustees, etc.).

Criminal charges against teachers are often treated differently by the authorities, because of the teacher-student relationship involved. Many of the non-sexual assault cases involving teachers generally would not attract police attention, if it were not for the teacher-student relationship.¹⁹

From the defence prospective, the potential impact of criminal proceedings on a teacher's career must influence the options chosen by the teacher in defending the criminal proceeding.

As is the case for many accused persons, the authorities will often be favourably disposed to consider non-custodial options in the form of a plea bargain with respect to a minor incident. In such cases, the police and/or Crown often look at such options as an "easy way out" whereby they make the complainant happy (because there is an admission of guilt and, therefore, validation for their allegation) while, at the same time, being acceptable to an accused (because it leaves no finding of guilt or criminal record and the defence legal fees involved will be minimal). However, these options are usually not palatable for an accused teacher who wants to retain his or her teaching career.

For example, police and/or Crown prosecutors are often amenable, if not downright eager, to agree to having the allegation deviated out of the criminal justice system into the Alternative Measures Program ("AMP"), provided for by the Criminal Code.²⁰ Under the AMP, the accused must make an informal (and theoretically confidential) admission of guilt and to certain conditions (which can include doing hours of community service work, undertaking counseling, or even simply paying a small amount to a charity). Once the conditions are fulfilled, the criminal charge is either not laid in the first place or is dropped.

This is not an option for a teacher who wants to consider his or her career. Although the admission of guilt involved is informal, it is usually made known to the complainant (and therefore the school district). The school district is then left dealing with a teacher who has admitted guilt to an offence against a student. This will generally bring the teacher's career to an end.

Another alternative is a discharge (conditional or absolute) pursuant to s. 730 of the Criminal Code. Technically, a sentencing can involve up to three steps:

1. A finding of guilt (by plea or judicial decision after trial);
2. The entry of a conviction; and
3. Imposition of sentence.

A discharge brings the process to a halt after the first step, without a conviction ever being entered or a sentence imposed. Thus, the accused ends up without a criminal record, because a "criminal record" is a record of criminal convictions.

Again, a teacher's decision to agree to a plea bargain that involves a guilty plea for an offence involving a student is not acceptable to a teacher who wants to remain employed as such. Additionally, most non-sexual assault cases involving teachers are so minor (as far as these crimes go) and the teacher has such a sterling reputation that the worst case scenario upon being found guilty after trial will often be no worse than a discharge, in any event. Thus, a Crown offer to accept a discharge by way of a plea bargain is not really offering much to the teacher. Accordingly, by running a trial in such cases a teacher at least retains the ability to pursue an acquittal, without a significant downside risk of a more serious penalty being imposed even if guilt is found.

(E) Professional Misconduct Investigation/ Proceedings

If a teacher resigns or retires, or is suspended or terminated, resulting from "conduct that brings into question the suitability of the teacher to hold a teaching certificate", the school district is legally obliged to report the matter to various authorities.²¹ Specifically, the district is obliged to report:

1. to the Registrar at the Department of Learning;
2. to the Alberta Teachers' Association for a professional misconduct investigation pursuant to the Teaching Profession Act;²² and
3. for charter or private schools, a report must be made to the Minister of Learning pursuant to the Practice Review of Teachers Regulation.²³

In addition to cases where the district must make these reports, where allegations are made against the teacher or the District and others (including the complainant or his or her family), the District may have the option to report. For the district, this can involve situations where reporting is not mandatory under s. 109.1 of the School Act, such as where the teacher is accused but does not end up being suspended, terminated and where the teacher does not retire or resign.

Often, the ability to report a teacher to the ATA and the possibility of professional misconduct proceedings is something laypeople, outside of the education system (such as the complainant and his or her family) are often unaware of. However, if they do become aware of this option, it might be attractive to them. As is the case with a criminal investigation, it makes trouble for the teacher with the potential to negatively impact his or her career while, at the same time, it costs the complainant nothing. This is another "freebie" option with little perceived risk to the complainant of having to pay costs if the allegations should prove unfounded. This fact makes professional misconduct proceedings more attractive to complainants than civil action.

Counsel cannot act for either the ATA or the teacher with respect to professional misconduct investigations or proceedings in addition to representing the teacher in criminal, civil or employment proceedings. That would involve a conflict of interest. However, the teacher's counsel, defending a criminal case and/or an employment case, can write to the ATA in that capacity, and ask for a suspension of the professional misconduct investigation pending the resolution of the criminal case.

2. The Factual Context

School districts have developed rather clear methods of dealing with allegations of criminality against teachers, some of which is mandated by legislation and some of which is essentially tradition. The education system in general, and the district's or school's environment in particular, will have developed an institutional culture. Counsel acting for teachers should be aware of, and experienced in, these cultures, traditions and legal processes.

By contrast, most police and Crown prosecutors have little or no knowledge of these cultures, traditions and the legal backdrop in which schools operate. Many have done very few, if any, school cases. They simply have little or no experience with the educational environment. A growing exception has to do with concept of the school resource officer. Many police forces have appointed uniformed police members who operate in, or liaise with, a school or group of schools as part of their duties. Unlike the mainstream of police members, school resource officers do acquire some experience and knowledge with respect to the educational environment. The police/Crown lack of experience with the educational environment can have both good and bad implications for teachers accused of criminal offences.

This is usually a negative factor at the investigation stage, where allegations are being weighed and charges are being considered. Police tend to be more likely to charge a teacher in a situation where there is not a case, although they will go on to lose the trial when the defence puts in evidence of the facts relating to the school environment. Thus, a teacher can end up being charged, because the police/Crown analysis of the situation is flawed through ignorance of the educational context in which the allegations are made. Although the teacher may thus end up being exonerated at the end of the criminal proceedings, he or she is still put through the horror of having to go through those proceedings.

The police/Crown ignorance of the educational environmental is usually a factor favourable to the accused, once the matter becomes a charge and criminal proceedings are pursued. The Crown often ends up being unaware of, and unprepared to deal with, relevant evidence that disproves the accused's guilt that is known to defence counsel with experience in the educational environment (and with the assistance of the ATA).

A couple examples of police or Crown ignorance of the impact of the school environment have become commonplace: the existence of video surveillance (and recording) of school spaces and the fact that the "scene of the crime" is usually a highly public place.

These days, more and more schools are installing video surveillance cameras in hallways and other high traffic areas. Many of the systems are now digital, allowing video imaging to be stored for months (as opposed to hours or days). If a complaint is brought forward against a teacher promptly enough, digital imaging may be available that exonerates the teacher, but police may lay a charge simply because they are unaware of this possibility. Unfortunately, there has been at least one case where police were aware of digital imaging that exonerated the teacher from the outset, but charged him anyway.²⁴

Most alleged teacher assaults occur in very public places, i.e., in hallways or classrooms with dozens of other witnesses present. Even if the allegation is alleged to have occurred between classes without other witnesses actually being present, there is always the possibility that someone could come along at any second (unannounced) and/or the matter may be under review in real time or recorded by video surveillance.

This fact has two aspects:

1. If an allegation of activity that would constitute an obvious assault or sexual assault is made, the fact that none of the eyewitnesses have seen it is an important fact for the defence. Unfortunately, police can be a bit ignorant or, worse, disingenuous about this kind of evidence. Police may avoid interviewing any of these witnesses (with the exception of friends of the complainant which he or she brings to the police attention who can be expected to corroborate the complainant's story) so as to avoid burdening themselves with information that helps the accused.
   
   
   1. Any such evidence that comes to the attention of the police (whether it helps or hurts the accused's case) must be disclosed to the defence before election and plea.²⁵
   2. There have been cases where the police interview witnesses who admit having been present but maintain that they did not see any such assault or sexual assault, but police do not take a recorded statement or disclose this evidence to the defence, as required. Sometimes, if they do disclose the evidence, they do so by merely indicating that the witness "knows nothing about this". This is obviously not the same thing as a witness who says "I was there and I did not see it happen" where the defence is hoping to prove a negative, i.e., that the thing did not happen. The courts have been justifiably critical of this "see no evil, hear no evil" approach.
      
      
      1. For example, see R. v. S. (D.O.).²⁶ The complainant alleged that the accused raped her in a protracted, violent incident in full view of her best friend who was a few feet away. The police telephoned the friend but did not end up taking a statement or interviewing her, nor did they disclose to the defence that they had approached the friend or as to what the friend said. Defence counsel (not being a potted plant) tracked down the friend and called her as a defence witness at the trial to testify that she remembered seeing no such incident. In the process of acquitting the accused, the court commented critically on the police/ prosecution argument to the effect that the friend did not advise police of material evidence that required disclosure because she had, essentially, seen nothing. Noting that many sexual assault cases are credibility contests between the evidence of the complainant and that of the accused, the court held as follows:
         
         
         [22] In many cases of rape (or sexual assault as it is now called), the court is often faced with very little more than the word of the complainant against the word of the accused and credibility of each becomes of critical importance. Even in such situations, however one is not, in the last analysis, faced with having to choose which of two mutually contradictory stories is correct. Obviously if the accused is believed, he must be acquitted; however, even if there is some doubt as to the accused's version, the court must nevertheless acquit if it is not satisfied beyond a reasonable doubt that the crown's version of the facts (or any version of the facts within the wording of the Indictment as originally framed or as amended) is correct: D.W. v. R. (1991) 3 C.R. (4th) 302 (S.C.C.).²⁷
         
         
         The court noted that the fact that a witness claims not to recall seeing something is not mutual or irrelevant evidence in cases where the witness's inability to recall having seen something that she ought to have recalled is a fact that tends to weigh heavily in favour of the accused:
         
         
         [29] Before leaving W.P.'s evidence I feel I must make some comment on the role of the police investigation with respect to W.P.'s involvement in the case. As indicated, when W.P. was contacted by the police by telephone, she indicated, as she did in court, that she could not recollect seeing any incident of the nature described by C.J. As a consequence, no statement was taken from her; yet her evidence, I have found, was very valuable to a determination of this matter and, specifically, was valuable to the defence.
         
         [30] It is perhaps natural, if on questioning, a person says he or she cannot recall an incident, to assume that that person has nothing of value to add to the investigation and to discount that person's further involvement. There is, however, a great danger in this. The effect of being too quick in concluding that because a person cannot recollect anything specifically about a particular incident, the person's evidence is of little value, may be to reject relevant evidence that does not support the Crown's case. The fact that a person does not recollect may of course mean that he or she has forgotten but it could also mean, in circumstances where the witness had an opportunity to observe and would normally be expected to have seen something, that the incident did not happen. The Crown (and I use that term compendiously to include the police) have a duty in investigating an alleged crime, to attempt to uncover all reasonably available evidence that may have the effect of confirming the charge or exonerating the accused. Through the doctrine of disclosure that information then becomes available for the use of the defence and there may even be circumstances, where the Crown ought, in discharge of its duty, to call evidence damaging to its own case as part of the case for the Crown.
         
         [31] Where, as here, a lack of recollection occurs in the face of something which as a matter of common experience would likely make a lasting impression on the witness, if it in fact occurred, that lack of recollection assumes a greater importance than merely amounting to information from someone who has "nothing to add". Such lack of recollection may well contribute to a reasonable doubt. The accused is entitled to the benefit of that evidence. It is incumbent on the Crown to make that information available to the defence, and in some circumstances, to the court and not merely to discount or dismiss it simply on the assumption that the lack of recollection means that the witness has nothing to add. In my view, the greatest guarantee of an accused person's civil liberties, is not the court, defence counsel or even the Canadian Charter of Rights and Freedoms, but a competent police force dedicated to conducting a thorough investigation with an open mind and with a view to uncovering relevant evidence that bears on the truth or falsity of the allegations facing the accused.
         
         [32] There is obviously a great danger in merely acting on a complainant's statement and, as long as no-one else specifically contradicts it, proceeding on to court without further investigation to attempt to check out peripheral details. The fact that corroboration has been done away with in most sexual offences as a matter of law does not mean that cross-checking and verification of peripheral details by the investigators of crime can also be done away with.
         
         [33] Although I am not privy to all of the details relating to the contact with W.P. by the police in this case or the reasons why nothing further was done, (which might in the circumstances have made it reasonable for the police to have acted as they did) I am tempted to say that I am left with the nagging feeling that more perhaps could or should have been done in this case.
         
         . . . . .
         
         [35] As I have said, it is fortunate that she was made available to testify. Without further information, it would be inappropriate to make any further comment as to whether in the circumstances it was appropriate that the defence be left to its own devices to conduct its own investigation relative to W.P. or whether more should have been done by the police by way of follow up. My comments should be regarded on a more general level as they relate to the potential dangers inherent in this type of investigation.
         
         
   3. In such situations, the Crown is forced to argue that there may have been brief moments where a witness is not actually watching or paying attention to the situation, which leads me to a discussion of the second aspect.
      
      
2. It is very unlikely that a criminal would attempt such a thing in a public place, with such a high chance of being caught (quite apart from whether or not the witnesses who were there actually saw what he did for every second of the time). No criminal can predict with any degree of certainty that a witness would not see it or that the complainant would not cry out or otherwise draw attention to him or herself. For teachers, this fact can be given more prominence because the accused teacher has probably had many opportunities to get this or other complainants alone in a secluded place, where they could attempt such a crime with little or no chance of being caught.
   
   

There are many examples in the case law where the court has acquitted a teacher on the basis of the event having happened in a public place.²⁸

3. The Section 43 Defence

(A) Introduction

The defence provided by s. 43 of the Criminal Code is relatively unique to accused persons who apply force in their capacities as teachers or parents. Section 43 provides as follows:

A detailed analysis is beyond the scope of this article, however a few things should be emphasized.

The parameters of the s. 43 defence were recently outlined by the Supreme Court of Canada in Canadian Foundation for Children, Youth and the Law v. Attorney General In Right of Canada²⁹ [Canadian Foundation]. The Supreme Court ruled that s. 43 did not offend the Charter in the context of the modern interpretation of that section. The availability of the defence is based on the defence being able to establish two factors:

1. The force must have been administered by way of correction; and
2. The force must have been reasonable in the circumstances.³⁰

(B) "By Way of Correction"

For s. 43 to apply, the force must have been administered for the purpose of education, discipline or correction of the student and the student must have been capable of benefiting from the correction:

I submit that the fact that a teacher might have been angry or frustrated does not preclude the protection of s. 43, in and of itself. The defence will still be available as long as any anger or frustration was not the sole or primary reason behind the application of the force. The Ontario Court of Appeal (which the Supreme Court of Canada upheld on this point in Canadian Foundation) provided as follows:

This is only logical. If a student has done something to merit discipline or correction, a parent or teacher will undoubtedly experience some anger or frustration. If a child spills paint on the new living room carpet, one cannot expect a parent to have no emotion in response thereto, but the court can expect that the parent will not be primarily motivated by this anger or frustration in disciplining the child. See also R. v. Swan.³³ However, if the teacher's application of force to a student is motivated by anger, the first element of the s. 43 defence ("by way of correction") will not be established and the defence will fail, even in cases where the teacher is directing the student, as opposed to exercising corporal punishment.³⁴

(C) "Reasonable in the Circumstances"

In determining what is "reasonable in the circumstances", the Supreme Court looked at social consensus and expert evidence on what constitutes reasonable, corrective discipline.³⁵ The Court concluded that corporal punishment is not reasonable for children under two or over 12 years of age, or where it involves the use of a weapon (such as a belt). Importantly, the Court held that corporal punishment is no longer considered reasonable for teachers, although it may be reasonable for parents.

Thus, a distinction must be drawn between corporal punishment and physical contact for other purposes. Corporal punishment occurs where the force applied is intended to be the punishment itself, such as a spanking or the strap. However, where the force applied is not intended to be the punishment itself, it is not considered corporal punishment. For example, a teacher may take hold of student to direct him or her to a desk or the office. The Supreme Court held that the application of force to direct a student to a destination for educational or corrective purposes is allowed for teachers.³⁶ Accordingly, force falling short of corporal punishment is not automatically unreasonable for children two or over 12 years of age. The distinction between corporal punishment and the application of force for other purposes has been recognized in the subsequent case law.³⁷

The reasonableness of the physical contact in any given case is to be assessed on an objective standard, not the subjective view of the complainant, the witnesses, the police, the prosecutor or the judge.³⁸

The decision of Mazur and Brooks³⁹ is a case in point. The accuseds were two daycare workers who were charged with assault. The three-yearold complainant had a history of acting out, including screaming, throwing chairs, kicking tables and kicking people. The Director of the daycare had a history of being able to deal with this behavior from him but, on the occasion in question she had stepped out to run an errand. The complainant demanded that his diaper be changed. The accuseds pointed out to him that they were occupied with other children and asked him to wait a moment. He threw a tantrum, throwing chairs around, striking one of the accuseds. The workers told him that if he did not behave he would be taped to his chair. He persisted and they taped him to his chair using one strand of duct tape. He extricated himself. The accuseds did not immediately tape him back into his chair. It was only when he continued to throw chairs around that they again restrained him and taped him more securely to his chair. Shortly thereafter the Director returned and the boy was freed. All in all he had been taped to his chair for a total of approximately three minutes. He was not injured. The Director apparently concluded that in her opinion the use of the tape had been unreasonable.

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Footnotes

1 R.S.C. 1985, c. C-46.

2 Ibid., ss. 34-35.

3 Ibid., ss. 38-42.

4 Ibid., s. 37.

5 Law Society of Alberta, Code of Professional Conduct, Chp. 10, "The Lawyer as Advocate: Statement of Principle".

6 Law Society of Alberta, Code of Conduct (Draft, January 21, 2011), expected to be adopted by the Benchers to replace the current Code of Professional Conduct in the fall of 2011.

7 M. Proulx & D. Layton, Ethics and Canadian Criminal Law (Toronto: Irwin Law, 2001), Chp. 1 "Defending the Guilty", pp. 51 – 53, 74.

8 A.M. Cooper, "The 'Good' Criminal Law Barrister", Second Colloquim of Legal Profession Presentations (Ontario Judicial Education Network, March 2004), at p. 3-3.

9 Law Society of Alberta, Code of Conduct, (Draft, January 21, 2011), expected to be adopted by the Benchers to replace the current Code of Professional Conduct in the fall of 2011.

10 R.S.A. 2000, c. A-18.

11 Toronto (City) v. C.U.P.E, Local 79, [2003] S.C.J. No. 64, 2003 S.C.C. 63; Holt v. MacMaster, [1993] A.J. No. 501, 140 A.R. 235 (Q.B.); Cho v. Phimsrath, [2003] A.J. No. 344, 2003 ABQB 235.

12 For example, see Becamon v. Wawanesa Mutual Insurance Co., [2009] O.J. No. 478, 2009 ONCA 113.

13 Larson v. O'Brien, [2008] B.C.J. No. 512, 2009 BCPC 82; P.(A.) v. M.(L.), [2010] A.J. No. 625, 2010 ABQB 356.

14 Polgrain Estate v. Toronto East General Hospital, [2008] O.J. No. 2092, 2008 ONCA 427, rev'g [2007] O.J. No. 3791, 87 O.R. (3d) 55 (S.C.J.). To the contrary see Near North District School Board v. O.S.S.T.F., District 4, 2006 CarswellOnt 8669 (Ont. Arb. Bd.) and G. Hopkinson, "Can Findings Of Fact From Criminal Acquittals Be Relitigated In Other Forums?" (2008) 18 Educ. & L.J. 91, which, with respect, runs contrary to most of the decided cases.

15 Alberta Rules of Court, Part 4, Subdivision 5.

16 [2009] A.J. No. 1503, 2009 CarswellAlta 796 (Q.B.).

17 School Act, R.S.A. 2000, c. S-3, s. 105.

18 Ibid., s. 107.

19 Consider R. v. Jonkman, [2010] A.J. No. 898, 2010 ABPC 245 where the substitute teacher took a student by the hand to take him down to the office. The student fell and suffered some bruising to the arms. Such a minor altercation is not likely to attract police attention outside of a teacher-student or parent-child relationship.

20 Supra, note 1, ss. 717-717.4 and 721(3).

21 School Act, s. 109.1, supra, note 17.

22 R.S.A. 2000, c. T-2, s. 24.

23 Alta. Reg. 11/2010.

24 R. v. Dubas, unreported, September 17, 2010, docket no. 091322875P1 (Alta. P.C.), per Fraser P.C.J. Although the accused in that case was resoundingly acquitted, he was still put through the humiliating and lengthy ordeal of criminal proceedings that concluded in a trial.

25 R. v. Stinchcombe, [1991] S.C.J. No. 83, 68 C.C.C. (3d) 1; R. v. McNeill, [2009] S.C.J. No. 3, 2009 SCC 3.

26 [1992] N.J. No. 280, 103 Nfld. & P.E.I.R. 146 (S.C.).

27 Ibid.

28 R. v. Laughlin (No. 2), [1989] S.J. No. 701 (Q.B.); R. v. Nawrot, unreported, October 25, 1989, docket no. C0150104882 (Alta. P.C.), per Murray P.C.J.; R. v. Espinoza, unreported, December 5, 1989, Action No. 8901-1254/C1 (Alta. Q.B.); R. v. S. (P.L.), [1990] N.J. No. 188 (C.A.), at pp. 9-11; vard [1991] S.C.J. No. 37; R. v. Nand, [1989] A.J. No. 508 (C.A.); R. v. Wright, [1992] A.J. No. 409 (C.A.); R. v. Burke, [1996] S.C.J. No. 27, [1996] 1 S.C.R. 474, at para. 17; R. v. F. (K.), [2007] B.C.J. No. 2295, 2007 BCSC 1505; R. v. Annett, [2007] B.C.J. No. 1889 (S.C.); Ellis v. MacDougall, [2008] B.C.J. No. 665, 2008 BCSC 463; R. v. Dubas, supra, note 24; G. Oakes, "Accused Gets Benefit Of Doubt Of Lack Of Teen's Consent To Sex" The Lawyers Weekly, vol. 27, no. 23 (19 October 2007).

29 [2004] S.C.J. No. 6, 2004 SCC 4 [Canadian Foundation].

30 Ibid., at paras. 23-25.

31 Ibid.

32 [2000] O.J. No. 2535 (C.A.).

33 [2008] O.J. No. 975, 58 C.R. (6th) 126 (S.C.J.).

34 R. v. Jonkman, [2010] A.J. No. 898, 2010 ABPC 245.

35 Canadian Foundation for Children, Youth and the Law v. Attorney General in Right of Canada, supra, note 29, at paras. 37-38.

36 Ibid., at para. 40.

37 R. v. Swan, supra, note 33, at paras. 15, 18-21 and 23- 24; R. v. Bochar, [1994] O.J. No. 1153 (P.C.), at para. 25; R. v. W. (B.W.), [2009] A.J. No. 672, 2009 ABPC 145, at paras. 16-17.

38 Canadian Foundation, supra, note 29, at para. 40; R. v. Mazur and Brooks, unreported August 16, 2011 (Man. P.C.), per Guy P.C.J., at p. 3; R. v. S. (S.), [2011] N.B.J. No. 282, 2011 NBCA 75, at paras. 43 – 44.

39 Ibid.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.