Document 164313

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 4
Cited as 12 R.M.C.E.
MAY 2012
• CURE FOR THE HANGOVER: CRIMINAL INVESTIGATION ISSUES
FOR TEACHERS AND SCHOOL DISTRICTS — PART 3•
Brian A. Vail, Q.C., Field LLP
IV
POST-INVESTIGATION/CRIMINAL
TRIAL CONSIDERATIONS
A.
Introduction
Sooner or later, the criminal proceedings will
come to an end, by any one of a number of
different routes:
1. The police may conclude their investigation and (perhaps with consultation with
the Crown) decide not to lay any charges.
2. Once charges are laid, the Crown can
withdraw them. If this is done before the
• In This Issue •
CURE FOR THE HANGOVER:
CRIMINAL INVESTIGATION ISSUES FOR
TEACHERS AND SCHOOL DISTRICTS — PART 3
Brian A. Vail, Q.C................................................61
In association with
Catholic Principals’ Council of Ontario
plea or the calling of any evidence, the
Crown can withdraw the charge unilaterally; otherwise the consent of the accused
94
is required.
3. Where the accused elects to be tried by the
Court of Queen’s Bench and undergoes a
preliminary inquiry, he or she could be
discharged after the preliminary inquiry if
the Provincial Court judge concludes that
there is insufficient evidence upon which a
properly instructed Queen’s Bench jury
95
could convict. Given that this very low
threshold is easy to meet, this very rarely
occurs. Even then, the Crown has the power
to file a direct indictment to continue the
proceedings in the Court of Queen’s Bench
if the direct indictment is signed by the
Attorney General or the Deputy Attorney
96
General. Indeed, this occurred in the only
teacher case I defended where my client was
discharged after preliminary inquiry.
Risk Management in Canadian Education
May 2012 Volume 12, No. 4
RISK MANAGEMENT IN
CANADIAN EDUCATION
4.
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The Crown can enter a stay of pro97
ceedings at any point. Technically, the
proceedings are suspended for up to a
year after which the stay becomes
permanent if the Crown does nothing
further about them. In practice, this is
usually the end of the proceedings.
(a) The Crown can then re-activate the
same proceedings without filing a
new Information or Indictment, as
the case may be, by filing a notice
within one year of entering the stay.
ISSN: 1496-1431
(b) The Crown’s discretion to enter a
stay is virtually unfettered in that it
is not subject to judicial review
absent “conspicuous evidence of
improper motives or of bad faith or
an act so wrong that it violates the
conscience of the community, such
that it would genuinely be unfair and
98
indecent to proceed”. In effect, the
Crown retains the ability to “take its
ball and go home”.
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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
CONSULTING EDITOR
The Hon. Mr. Justice Marvin A. Zuker, Ontario Court of
Justice
(c) Unfortunately, this option can deprive the accused (whose name and
reputation have been tarnished by
the laying of the charge in the first
place) of the opportunity to call evidence to respond to the allegation or
clear him or herself in criminal
court.
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.
(d) In my experience, Crown prosecutors tend to prefer entering a stay, as
opposed to withdrawing the charge
or asking the court to dismiss, be62
Risk Management in Canadian Education
May 2012 Volume 12, No. 4
support a termination. See Adams v. Board of
Trustees of the Taber Roman Catholic School
101
District No. 54. A teacher of approximately
cause there may be a possibility of
further evidence coming forward in
the future and/or to avoid the clear
result of an acquittal in the context
of a possibility of civil action by the
accused against the complainant, police or Crown for malicious prosecution and/or negligent investigation.
16 years’ experience with no prior record of
problems was found guilty after a criminal trial
of assaulting a student. The judge granted him
an absolute discharge. The Board of Reference
found that the criminal judge “apparently had no
difficulty determining that the assault upon [the
student] was not of a serious nature” because
“had he felt otherwise, he would not have
102
granted a discharge to Adams”. After his termination, Adams did not seek reinstatement as
he found employment as a teacher elsewhere.
Nonetheless, the Board of Reference held that
the district did not have reasonable grounds to
terminate the teacher’s employment:
(e) In my experience, the prosecution
almost never files to re-activate proceedings once they have been stayed
by the Crown.
5. The court can enter a stay of proceedings
in the event of an abuse of process or extremely egregious breach of an accused’s
charter of rights. Judicial stays are extremely rare and are only to be entered in the
99
clearest of cases. Unlike the situation where
Assaults of any nature by a teacher upon a student are
regrettable and unfortunate, but they do occur occasionally. In cases where the assault was of a substantive or
serious nature, or consisted of a cruel, unusual, or sadistic
act, or the student was held up to ridicule or abuse in the
incident, or the teacher has completely lost face and
credibility as a result of it, the Board of Reference has not
hesitated to uphold a board of trustees decision to terminate on those grounds. But that is not the case here, it is
my finding that it would be unreasonable to uphold the
board’s termination of Adams’ employment on the meagre grounds that the Board has established. For that rea103
son the termination cannot be upheld.
the Crown enters the stay of proceedings,
a judicial stay brings the matter to an end
completely.
6. The accused can be acquitted or convicted
after trial, which may be upheld on appeal.
Where the accused is convicted, the situation is
usually rendered academic. If a teacher is convicted of an indictable offence, the district is
100
entitled to terminate without notice. Additionally, a finding of guilt for even a summary conviction offence against a student often provides
the district with grounds to terminate, such that
a resignation is submitted and the district need
not investigate or litigate further.
Damages were awarded against the district.
For the balance of this section of the article, I
will be discussing the situation where the
teacher is acquitted.
Upon acquittal, the teacher has just very publicly been through the meat grinder. The landscape of his or her life, even after a victory in
criminal court, will have been devastated as if
by a nuclear attack. A teacher will have ex-
However, it should be noted that not every assault on a student for which a teacher is found
guilty in summary conviction proceedings will
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Risk Management in Canadian Education
May 2012 Volume 12, No. 4
pended a great deal of economic, physical and
psychological resources. In these situations, the
teacher is often left emotionally devastated. He
or she may have an understandable fear of going
back into the classroom because he or she
knows that, even though innocent, they can be
charged and put through this process. The
teacher appreciates that it can happen again.
action brought against him or her and the district
by the complainant.
It should be noted that teachers who are acquitted may have remedies of their own to pursue,
including the following:
1. A criminal charge can be brought against
the complainants for public mischief
105
(falsely initiating a criminal charge), per106
jury (for lying in court), giving inconsistent
107
108
evidence, fabricating evidence, or
109
obstruction of justice.
Even with an acquittal, the teacher’s agony is
not necessarily over for good. From a practical
point of view, acquittals can be of various types,
falling anywhere on a continuum. On one extreme, there are cases where the court acquits,
indicating that although there appears to be
something to the allegations, they have not been
proven beyond a reasonable doubt and the benefit of that reasonable doubt must be given to the
accused. On the other extreme of the continuum
are cases where the court acquits the teacher in
language that totally exonerates the teacher and
104
proclaims his or her innocence. Acquittals can
be expressed such that they fall anywhere between the two extremes. In jury trials, the jury’s
acquittal is not accompanied by reasons of any
kind and, unless the matter is appealed and
commented upon by the appellate court, the
world is left to speculate as to the basis of the
jury’s acquittal.
(a) Unfortunately, Crown all too often
neglects or refuses to pursue any of these
options.
(b) Although the teacher can lay a private
charge, by appearing before a justice of
the peace and swearing out a private
110
Information, once the private Information is issued, how the charge proceeds (if
at all) is beyond the ability of the teacher
to control. In the first place the court determines whether or not the accused
complainant should be compelled to an111
swer in court by the issue of process.
Even then the continuation of a prosecution against the complainant is within the
discretion of the Crown, as is the case
with charges brought by the police.
Accordingly, for all but the “total exoneration”
acquittal, the teacher may still be called upon to
litigate to maintain or re-acquire his or her employment status with the district by way of a
termination hearing and/or board of reference,
defending professional misconduct proceedings
before the Alberta Teachers’ Association
(“ATA”) or similar body, or defending a civil
2. The teacher may also pursue civil actions
for malicious prosecution and/or negligent investigation against the complainant, district,
police or Crown (as discussed in more detail
below). A civil action may also be brought for
defamation against any of these parties who
have defamed the teacher’s character.
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B.
May 2012 Volume 12, No. 4
tioning the teacher. In pursuing or trying to defend a termination, the district must prove, on a
balance of probabilities at the board of reference
(or arbitration), what the Crown could not prove
beyond a reasonable doubt at the criminal trial
and, further, that termination is reasonable.
Although, as noted above, the fact of an acquittal cannot, in and of itself, be admitted into evidence in civil proceedings, that fact will usually
become known to the trier of fact in civil
proceedings. The acquittal is often part of the
narrative of events for civil tribunals (board of
reference, arbitrators, or court) to consider. Indeed, it is an element that must be proven in
civil actions for negligent investigation and malicious prosecution. Although the fact of acquittal may be technically inadmissible in some
civil proceedings, from a practical standpoint it
will become the “elephant in the civil courtroom” that nobody wants to talk about. That
works in favour of the teacher. Settlement is always an option, especially in cases where neither
side is sure what the outcome will be after a hearing before a board of reference (or arbitrator).
Dealing with the District
Where a teacher has been cleared, he or she will
still have to deal with the district regarding the
employment situation. The teacher may seek
to be assigned back to duty or reinstated after
suspension.
Usually, the district will have to finish its own
investigation after an acquittal, taking into account what came out in the police investigation
and/or the criminal proceedings. As noted
above, school districts often suspend their own
internal investigations at some point during the
criminal proceedings to allow the police to proceed and await the outcome of those criminal
proceedings.
After an acquittal, the district’s conclusion of its
own investigation may be short and sweet. It
will have been appraised of a wealth of facts
from the police investigation and criminal proceedings such that it should be left with little, or
nothing, to do in completing its own investigation. Few, if any, stones will have been left unturned. The strength of a resounding acquittal is
also of great assistance in convincing the community that the teacher is innocent and any reinstatement justified, especially in a smaller
112
community. In R. v. Dubas, the district administration was present and observed all of
the criminal proceedings. They observed the
witnesses first hand and were in a position to
conclude their investigation and reinstate
Mr. Dubas very shortly after the acquittal.
Assuming that the district accepts that the
teacher is innocent, or alternatively, it concludes
that a termination cannot be justified, the goal of
both the teacher and district should be to reintegrate the teacher back into the classroom. This
involves either re-assigning the teacher to duties
(if he or she has been unassigned to duties) or
reinstating him or her after a suspension.
The teacher is not necessarily put back into the
school or position that he or she was in prior to
the criminal proceedings. Often, the teacher
wants to go back to his or her previous position.
On the other hand, if the acquittal is based on
reasonable doubt, the district may still have a
realistic option of terminating or otherwise sanc65
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The very fact of such a return proclaims his or
her innocence to the world. However, return to
the same position is sometimes not practical.
Notwithstanding even the best kind of acquittal,
there will be some in the school community who
continue to nurse the notion that the teacher is
guilty, and to openly advocate that, blaming the
acquittal on “those damn judges” or “those
damn defence lawyers”. Certainly, the complainants and their families may take this position after an acquittal. The fact is that a teacher
recovering from the criminal battle may have to
do more than just return to the classroom. He or
she may have to deal with difficulty from the
school community in the process. In such cases,
we often negotiate the teacher’s return to a different school, where the parental community has
less hostility and resistance.
When false allegations have been made, the
complainant has done a very bad thing and often
his or her parents have as well. They have
falsely accused a teacher of criminality. Allowing the fact of this culpable act to go unnoticed
is bad for teacher morale at the school in general. It is also dangerous in the sense that it
sends a message to other students (and their parents) who might consider making false allegations against teachers that there is no downside
in pursuing such a course.
Unfortunately, more and more we have been
finding that districts are letting teachers down in
the post-acquittal phase of a criminal matter. We
have seen this occur even where the district has
been supportive of the teacher (as opposed to just
being neutral) throughout the criminal investigation and/or proceedings. This is especially the
case where the police clear the teacher and close
their file without laying any charge at all.
In reintegrating the teacher back into the school,
messaging is critical. The goal of both the
teacher and the district should be to maximize
the odds that the teacher will be accepted back
by the school community. From a practical
standpoint, the school community (staff, students and parents) have to be satisfied that the
teacher is innocent and fit to return to work. As
noted above, the teacher’s placement back in
school after being cleared speaks volumes for
his or her reputation. It also evidences the district’s resolve that the teacher should be returned to teaching. This is to the advantage of
the district as much as it is for the teacher.
Unless the district can satisfy the community, its
personnel will suffer, and will go through grief
in dealing with that community, just as much as
the teacher will.
The parents of the complainant often want to
turn back the clock and go back to the “good old
days”. They want their child to return to the
classroom as if nothing had ever happened.
Realistically, once the teacher has been falsely
accused of a crime, they cannot get that genie
back into the bottle. The child has seriously
misbehaved, causing problems for both the
teacher and the district and, accordingly, it is
unfair and unrealistic for the parents of the
complainant to insist that things go back to the
way they were. I submit that for the district to
allow this to happen is both unfair and unwise.
All too often, once the teacher is acquitted the
district shifts from a neutral or even supportive
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mode to an appeasement mode. There is sometimes an overweening desire on the part of the
district to appease and accommodate the parents
at almost any cost. We have an increasing number of cases where the district focuses on “making peace” at the school without consideration
for the teacher’s interest, let alone the long term
interests of the district.
situation. The district had been supportive of the
teacher throughout the criminal proceedings
(and had not removed her from her position at
the school). Once the investigation was concluded, the parents insisted that the child be able
to return to school as if nothing had ever happened. Fortunately, the child was not enrolled in
any of the teacher’s classes, and accordingly,
she did not have to be in continual interaction
with the student thereafter. However, the district
actually insisted that the teacher speak with the
child to indicate that “there were no hard feelings” with respect to the false allegation so that
the child would not feel any shame or reluctance
in returning to school.
I was once involved in a southern Alberta case
where the teacher was cleared of an allegation
that he had non-consensual intercourse with a
teenage student during the lunch break. At the
time, the student was a ward of the province and
had been enrolled in the teacher’s special education class. When the forensic evidence (from a
gynecologist) established that the teacher could
not possibly have been guilty of the allegation,
the government wanted the child to be able to
re-attend the teacher’s class and the district was
prepared to allow that to happen, noting that the
teacher’s class was the only program offered for
that student in the district. It was only when the
teacher’s union threatened to launch a grievance
that the government and the district backed
down, and the child was moved to another municipality to attend a special education program
there.
In another central Alberta case, a teacher
stepped in to stop what appeared to be a child
abduction in process at a school field trip. The
parent had signed authorizations for her child to
attend field trips in the past and must have
known that a special waiver form had to be
filled out if the family was to arrange transport
for the student back from the field trip, as opposed to the child returning on the district bus.
School administration was aware that there was
a marital dispute in process among the parents
in that family. A relative was sent to pick up the
child without the proper waiver having been
signed. The young man sent to pick up the student was told by the complainant’s teacher that
the complainant would not be released to his
care for security and liability reasons. When he
did not accept this, the supervising teacher became involved to reinforce this verbal message.
Later, when a parent noted that the student was
being led away by a stranger, the supervising
In a recent central Alberta case, a teacher was
falsely accused of groping an elementary school
student during a school field trip. Once the police became involved, the student acknowledged
the true details of what happened and everyone
(including the child’s parents) were satisfied
that the teacher had not misconducted herself.
Indeed, the parents acknowledged to the district
and police that they had over-reacted to the
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May 2012 Volume 12, No. 4
teacher intervened and was injured in the process. Police became involved and conducted a
full investigation, after which they concluded
that his actions had been entirely appropriate
and, indeed, laudable. They concluded that the
supervising teacher had every reason to believe
that a child abduction was taking place and had
acted appropriately. However, the teacher’s
problems with the district continued when the
school principal took the position that the
teacher ought to have allowed the third party to
take the student away from the field trip, even
though the principal acknowledged that the
school had policies in place to prevent noncustodial parents from removing the child from
school. The school went to great lengths to appease the parent and, as a result, encouraged her
to continue to agitate against the teacher. This
forced the school to continue to deal with this
“bleeding Kansas” for quite some time.
(b) Any district comments to the media
should be to the same effect.
3. Where there have been false accusations, I
respectfully submit that serious consideration
should be given to disciplining the complainant for having advanced a false complaint
against a teacher.
(a) Surely, making false criminal accusations against a teacher is an offence capable of attracting sanction for a student
at the school level. The discipline of students in these situations is important in
two respects.
(i) It underscores for the community
that the teacher has been exonerated.
(ii) It deters other students from falsely
accusing teachers — it shows them
that there is a downside to such a
course of action.
It is submitted that the following are steps that
should be considered:
(b) This is a step that is necessary to protect
the teacher in question and, indeed, all
teachers in the school from future false
complaints. To discourage false complaints also serves to insulate the district
from having to go through the same
process in the future.
1. The teacher should be returned to school, the
same school as before if that is practical.
2. The district should undertake messaging so
that the school community is informed of the
teacher’s return and of the district’s support
for that.
4. The student should be re-assigned so that the
teacher does not have to teach that student
again.
(a) One means of messaging is a district or
school letter home to parents. The district can take this opportunity to indicate
that the teacher has been cleared and that
the district has concluded that he or she
should be returned to the classroom. The
fact of an acquittal can be emphasized.
(a) It is almost always best to take the position that the teacher should not have to
teach the offending student again.
Teaching is stressful enough these days
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May 2012 Volume 12, No. 4
without the teacher having to watch his
or her back on top of that.
even after an acquittal, the district can
at least, “read the Riot Act” to them if
necessary.
(b) The complainant presents an obvious
risk to the teacher if placed back in his or
her class. Students have learning curves
and the complainant will have just had
an object lesson as to his or her mistakes
in fabricating one complaint such that he
or she should not be afforded an opportunity to try it again with the benefit of
that experience.
(b) At the very least, it must be made clear
that after the false complaint the student’s
school situation cannot go back to what it
was beforehand. Their child must live
with the consequences of his or her acts.
(c) I submit that it is in the district’s best interests that the complainant’s parents be
dissuaded from keeping the pot boiling.
Otherwise, the school community can
continue to be distracted from pursuing
legitimately live issues in the operations
of its schools.
(c) Sometimes the complainant’s parents are
only too happy to agree that the student
should be placed elsewhere but this is
not always the case, especially where the
complainant is in a special program that
is only available with the teacher or at
the school in question.
(d) As previously noted, the district may, if
necessary, consider issuing cease and
desist letters pursuant to s. 27 of the
School Act, to preclude the complainant’s parents or others from causing
problems for the school and the teacher.
(d) To the extent that this causes hardship or
inconvenience, it should be remembered
who is to blame for that — the complainant (and often his or her parents as
well) and not the teacher or the district.
If any party has to suffer for this, it
should be the offender and his or her
parents.
It is, I submit, unfair to the teacher for a district
to pursue appeasement policies. Districts cannot
expect teachers’ representatives such as the
ATA to sit idly by and allow the teacher to be
lost in the shuffle or thrown to the wolves after
being cleared of a false criminal allegation. If
the district will not protect the teacher and other
ATA members teaching in the school from the
complainant and others like him or her, the
ATA will be forced to do so. If the district is not
prepared to negotiate a fair resolution with the
ATA, they cannot expect to have any input into
what courses of action the ATA or the teacher
pursue thereafter.
5. It should be made clear to the complainant’s
parents that the teacher has been exonerated
and that “whisper campaigns” or other rabble-rousing against him or her in the school
community will not be tolerated. If necessary, consideration may be given to issuing
cease and desist letters.
(a) Although it can be difficult to persuade
the parents that the teacher was innocent,
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May 2012 Volume 12, No. 4
I submit that an appeasement policy sets the district up for further trouble in the future. By not
sending a clear message that the teacher has
been exonerated and has the confidence of the
district to continue, the issues surrounding that
teacher will not die and the district will have to
continue to deal with it. Children learn by example and will realize that there is no downside
risk in falsely accusing the teacher. This is not
to say that in these situations the appeasing district has intended to hurt the teacher. It is more
accurate to say that these districts pursue an illusory peace with the complainant and his or her
parents without taking into account or caring
how that might affect the teacher. It is not that
they are “out to get the teacher”, it is just that
they are oblivious as to whether or not this
might put the teacher in a difficult position. It is
submitted that this is unwise.
C.
and been allowed to continue at school with no
sanctions being imposed upon them by the district. To the extent that the teacher is put back in
that school, he or she is at continual risk with
respect to further false allegations from that student and so are fellow teachers. In such cases,
while many members of the school community
may know who the complainant is and that the
teacher has been exonerated, the risk posed by
such a student to teachers of the school will not
be fully appreciated by all members of the
school community since publication bans are
almost always imposed with respect to the identity of a complainant in the course of the crimi113
nal proceedings. Indeed, even if the Crown
takes the unusual step of successfully prosecuting a complainant for offences involved in making the false complaint against the teacher, the
complainant is almost always a minor and there
are severe restrictions on the publication of his
114
or her identity. In all the circumstances, there
may well be some teachers at the school who do
not appreciate the risk that such a complainant
poses. At the very least, consideration may be
given to apprising all members of teaching staff
of a risk posed by that student.
The Teacher’s Options
If the teacher and/or the ATA perceive that the
district is not sufficiently supporting the
teacher’s reinstatement back in the school environment, they have options available to protect
the teacher and seek redress from those who
have done him or her wrong. All of these options have the potential to disrupt the operations
of the school and the district, including relations
between the district or school and the parental
community. The ATA would prefer to avoid
these options for that very reason. However, if
the district is not going to protect the teacher,
the ATA will.
1.
Defamation Actions
Complainants, parents and their supporters can
be sued for defamation of character where they
have published statements that damage the character of the teacher in the eyes of right thinking
people. The ATA has shown itself willing and
able to support a teacher’s case through to a
successful judgment in defamation against
115
parents.
There have been cases where the students have
made false criminal allegations against a teacher
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May 2012 Volume 12, No. 4
the form of a deliberate and improper use of the office of the
Attorney General or Crown Attorney, a use inconsistent with
the status of “minister of justice”. In my view, this burden on
the plaintiff amounts to a requirement that the Attorney
General or Crown Attorney perpetrated a fraud on the process of criminal justice and, in doing so, has perverted or
abused his office and the process of criminal justice. In fact,
in some cases this would seem to amount to criminal conduct: see, for example, breach of trust, s. 122; conspiracy re:
false prosecution, s. 465(1)(b); obstructing justice, ss.
139(2) and (3) of the Criminal Code, R.S.C. 1985, c. C-46.
Malicious Prosecution
An exonerated teacher may have a cause of action for the tort of malicious prosecution against
the complainant, the district, the police and the
Crown.
The locus classicus case setting out the elements
116
of malicious prosecution is Nelles v. Ontario:
[42] There are four necessary elements which must be
proved for a plaintiff to succeed in an action for malicious
prosecution:
The limited scope of the tort of malicious prosecution has been reiterated, in spades, by the
Supreme Court in a malicious prosecution case
117
against a prosecutor Miazga v. Kvello Estate.
(a) the proceedings must have been initiated by the
defendant;
The Court upheld the elements for the tort as set
118
out in Nelles. The Court held that the malice
involved required establishing an improper subjective intent on the part of the prosecutor that
goes beyond the prosecutor’s personal disbelief
119
in the guilt of the accused. Malice cannot be
inferred from an absence of belief by the prosecutor where there is reasonable and probable
120
cause to prosecute. See also Alevizos v. Mani121
toba Chiropractors Assn.; Franklin v. Toronto
122
123
Police Services Board; Lucas v. Faber;
124
Whatcott v. Schluff; Wilson Fuel Co. v.
125
Canada (Attorney General); Wong v. Toronto
126
Police Services Board.
(b) the proceedings must have terminated in favour of the
plaintiff;
(c) the absence of reasonable and probable cause;
(d) malice, or a primary purpose other than that of carrying
the law into effect.
(See John G. Fleming, The Law of Torts, 5th ed. (Sydney: Law
Book Co., 1977) at 598.)
[43] The first two elements are straightforward and largely
speak for themselves. The latter two elements require explicit discussion. Reasonable and probable cause has been
defined as: “an honest belief in the guilt of the accused based
upon a full conviction, founded on reasonable grounds, of the
existence of a state of circumstances, which, assuming them
to be true, would reasonably lead any ordinarily prudent and
cautious man, placed in the position of the accuser, to the
conclusion that the person charged was probably guilty of the
crime imputed.” (Hicks v. Faulkner (1881), 8 Q.B.D. 167 at
171, Hawkins J., aff’d 46 L.T. 130 (C.A.)).
[44] This test contains both a subjective and objective element. There must be both actual belief on the part of the
prosecutor and that belief must be reasonable in the circumstances. The existence of reasonable and probable cause is a
matter for the Judge to decide, as opposed to the jury.
Accordingly, until Hill v. Hamilton-Wentworth
127
Regional Police Services Board came along,
the only answer that defence counsel could give
to a criminal client asking about compensation
for an unjust prosecution has been “the universe
is unfair — suck it up!”
[45] The required element of malice is, for all intents, the
equivalent of “improper purpose”. It has, according to Fleming, a “wider meaning than spite, ill-will or a spirit of vengeance, and includes any other improper purpose, such as to
gain a private collateral advantage” (Fleming, op. cit., at p.
609). To succeed in an action for malicious prosecution
against the Attorney General or Crown Attorney, the plaintiff
would have to prove both the absence of reasonable and
probable cause in commencing the prosecution and malice in
3.
Negligent Investigation
Fairly recently, the Supreme Court of Canada
has recognized a tort of negligent investigation,
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May 2012 Volume 12, No. 4
theft by employees and commissioned a private
investigator to investigate. The private investigator erroneously named the plaintiff employee
as a thief, by confusing him with another individual. The defendant employer terminated the
plaintiff’s employment and turned the matter
over to the defendant police for criminal
investigation. The police did not conduct an
investigation of their own independent of the
employer’s investigation. They relied on the
employer’s investigation to arrest and charge the
plaintiff. The charges were dropped four months
later when the plaintiff’s defence counsel established to police that the plaintiff had been misidentified as the thief. The plaintiff sued his
employer, the private investigating firm and the
police for various torts, including wrongful dismissal and negligent investigation.
holding that the police owe a private law duty of
care to identified suspects to take reasonable
care in conducting investigations against them.
A complete analysis of this tort is beyond the
scope of this article, however, a few points
128
should be emphasized.
An acquitted teacher may be able to sue the police and other entities which have been involved
in the investigation giving rise to the criminal
proceedings against him or her. The advantage
that this cause of action has over that of malicious prosecution is that the plaintiff teacher need
not prove that the police acted maliciously or
with evil intent, merely that they were negligent.
The Crown cannot be sued for negligent investigation. In another context, the Supreme Court
has held that it is not the Crown’s role to investigate. Rather it is duty of police to investigate
and turn their results over to the Crown which,
in turn, conducts the prosecution and determines
what portions of the police investigation results
are relevant to the case and must be disclosed to
129
the defence.
The defendants (except the police) applied for
summary dismissal of the claims against them
(except for wrongful dismissal simpliciter) as
against the employer. The motions judge dismissed the plaintiff’s claims for negligent investigation. He appealed.
An employee may have an action for negligent
investigation against his or her employer, where
such investigation plays a role in forcing the
employee to successfully defend a criminal
prosecution. Certainly, private investigators are
agents of the employer and are exposed to liability in such cases. An Ontario case held that employers do not owe a duty of care to employees
to take reasonable care in investigating them as
a general rule.
The Ontario Court of Appeal reversed the dismissal of the case against the private investigator, but upheld the dismissal of the case for that
tort as against the employer. The court applied
the two-part test of determining whether or not a
duty of care exists in any given situation pursuant to the case:
[19] The test for determining whether a person owes a duty
of care to another as laid down in Anns v. Merton London
Borough Council, [1978] A.C. 728 (H.L.) has been accepted
by the Supreme Court of Canada in a number of decisions including Kamloops (City) v. Nielsen, [1984] 2 S.C.R. 2. The
test involves two questions:
In Correia v. Canac Kitchens, a Division of
130
Kohler Ltd. the defendant employer suspected
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Risk Management in Canadian Education
May 2012 Volume 12, No. 4
(1) Does the relationship between the plaintiff and the
defendant disclose sufficient foreseeability and proximity to
establish a prima facie duty of care?
Wallace where the reason for the dismissal was an allegation
of criminality. We can see no principled reason for so doing.
[74] The second reason that we would not recognize a duty
of care on Canac lies in the potential chilling effect on reports
of criminality by honest citizens to the police. Unlike Aston
[the private investigator], Canac was not in the business of
investigation. It was in many ways in the same position as
any other citizen who reports criminal activity to the police.
Public policy favours encouraging the reporting of criminality
to the police. Someone not in the business of private investigation who honestly, even if mistakenly, provides information
of criminal activity should be protected: see Mirra v. Toronto
133
Dominion Bank, [2004] O.J. No. 1804 (S.C.J.).
(2) Are there any policy considerations that should neverthe131
less negate or limit that duty of care?
The court held that the argument for recognizing
a duty of care on the part of a private investigator is even stronger than with respect to po132
lice. It was held that the proximity and
foreseeability in this employer/employee case
established a prima facie case against the employer but that public policy conditions (considered under the second part of the Anns test)
dictated that such a duty of care should not be
recognized because Canadian courts lack the
jurisdiction to order reinstatement of an employee in a wrongful dismissal suit and the employer’s situation was considered analogous to
that of a private citizen, such that recognition of
such a duty of care would have a “chilling
affect” on reports of crime by honest citizens:
However, the same result would not necessarily
follow with respect to a teacher termination in
Alberta. The Correia case may be distinguish134
able on the basis that under the School Act a
board of reference does have the power to order
reinstatement of a teacher who has been wrongfully dismissed.
In addition, a more recent British Columbia decision has held that the public policies relied on
by the Ontario Court of Appeal in the Correia
135
case do not apply with respect to a district’s
actions against the teacher other than dismissal.
[72] The fundamental premise of the employer-employee
relationship in Canada is the right, subject to contractual
terms to the contrary, of either party to terminate the relationship. Thus, in Wallace [v. United Grain Growers Ltd.,
[1997] 2 S.C.R. 701], the Supreme Court of Canada rejected
the submission that an employer must have good faith reasons for dismissal or that there could be an independent action or head of damages for breach of such alleged duty of
good faith, either in contract or in tort. In our view, it would
be inconsistent to nevertheless recognize a duty on an employer not to conduct a negligent investigation regarding
an employee. To do so would be to do indirectly what the
Supreme Court expressly rejected in Wallace.
136
In Hildebrand v. Fox the teacher was alleged
to have assaulted a teaching assistant. The district retained a private investigator who
produced a report. Based on that report, the defendant superintendent issued a discipline letter
against the teacher without first allowing the
teacher to respond to the investigator’s report.
The teacher sued the superintendent for issuing
the discipline letter and for refusing to refrain
from sending a copy to the British Columbia
Teacher’s Federation. The motions judge
granted summary dismissal of the claim against
the superintendant.
[73] The Supreme Court, for policy reasons explained in
Wallace, has refused to recognize an action in tort for breach
of a good faith and fair dealing obligation. In this case, Canac
fired the plaintiff for cause. It concedes that it was wrong in
doing so and it may have been negligent. But, in our view, to
recognize a tort of negligent investigation for an employer
would be inconsistent with the holding in Wallace. It would,
in effect, carve out an exception from the broad holding in
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Risk Management in Canadian Education
May 2012 Volume 12, No. 4
The teacher’s appeal was allowed and her action
against the superintendent was reinstated. The
court held that while the Correia case does
stand for the proposition that an employer does
not owe a duty of care to employees for negli137
gent investigation leading to a termination,
this does not necessarily mean that a district
does not owe a duty of care to investigate properly with respect to other sanctions (such as the
issuance of a discipline letter), as opposed to a
138
termination.
solve the employment issues between them and
they will both face the potential for civil action. It
is in the interests of both to exploit the common
ground that they enjoy throughout the process by
opening and maintaining candid communication
in good faith. This also enables them, particularly
the district, to keep their options open so as to be
able to conduct a full and complete defence to
any companion civil action they might ultimately
face.
V.
favour of the teacher, the dust does not completely settle. The district must conclude its
investigation of the matter and the parties must
address the teacher’s reintegration into the school
environment (absent settlement). I respectfully
submit that the interests of both the district and
the teacher are best served by district support of
the teacher, as opposed to a policy of appeasement with respect to the complainant or others.
Even where the criminal matter is completed in
CONCLUSION
Criminal investigation, and even more so a
criminal prosecution, devastates a teacher’s life,
regardless of whether or not the criminal matter
ends in the teacher’s favour by way of closure
of a police file, the withdrawal of charges, a stay
of prosecution or an acquittal. Even with the
most resounding acquittal, teachers rarely recover their reputation completely. The very
process of an investigation or, worse yet, a
criminal trial, is a difficult ordeal for teachers.
Even with respect to less serious offences (such
as non-sexual physical assaults), the teacher’s
career is on the line.
This requires the sending of a clear message that
the teacher has been exonerated and that the district supports his or her reintegration into the
school. This message is not fully sent by the
mere reinstatement of the teacher, but also requires sanctioning the complainant student for
having brought the false complaint. If such a
message is not clearly sent, controversy in the
school community surrounding the teacher will
not die (and will remain a headache for the district) and other students may bring false complaints based on a perception that there is no
downside in doing so.
Throughout the process of a criminal investigation and any subsequent criminal court proceedings, the interests of the teacher and the employer
district will not be identical on many points.
However, throughout the process there are many
issues upon which the best interests of the
teacher are on the same ground as the best interests of the district. Additionally, at the
conclusion of a criminal investigation or prosecution, the teacher and the district will have to re-
Every competent educator knows that when a
student challenges the teacher’s authority in the
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Risk Management in Canadian Education
May 2012 Volume 12, No. 4
96
classroom, a failure to deal firmly, but fairly,
with the infraction at the outset only leads to
confusion in the minds of students as to the parameters of classroom conduct and invites continuing problems for the teacher in the future.
The same principle applies with respect to the
school community and the complainant in particular, following a teacher’s acquittal regarding
a criminal allegation. If the district does not
send a clear message in such circumstances, it
may be viewed as encouraging the conduct that
led to false allegations.
97
98
99
100
101
102
103
104
105
Additionally, the teacher has remedies against
those who are responsible for the initiation and
prosecution of a false complaint against him or
her. The complainants face the possibility of
criminal prosecution. Those who have maligned
the teacher’s reputation may be liable in defamation. There have been recent changes in the case
law to recognize the tort of negligent investigation for which the police and private investigators
retained by the district may be responsible, over
and above the long-recognized tort of malicious
prosecution pursuant to which complainants,
districts, police and Crown prosecutors may be
exposed to civil liability.
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
[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.
123
Brian A. Vail, Q.C. is a partner, practising
128
124
125
126
127
in the Edmonton office of Field LLP.]
94
95
R. v. Blasko, [1975] O.J. No. 1239,
29 C.C.C. (2d) 321 (H.C.J.).
129
United States of America v. Shepherd,
[1976] S.C.J. No. 106, [1977] 2 S.C.R. 1067.
131
130
75
Criminal Code, R.S.C. 1985, c. C-46, s. 577.
Criminal Code, s. 579 (under applicable summary
conviction matters by s. 795).
R. v. Power, [1994] S.C.J. No. 29, [1994] 1 S.C.R. 601,
at para. 12.
R. v. Conway, [1989] S.C.J. No. 70,
[1989] 1 S.C.R. 1659.
School Act, R.S.A. 2000, c. S-3, s. 109(2).
Unreported (July 11, 1985), per Yanosik J.
(Board of Reference).
Ibid., at p. 19.
Ibid., at pp. 27 – 28.
See R. v. Nawrot, unreported (October 25, 1989),
docket no. C0150104882, per Murray P.C.J. (Alta.
P.C.); R. v. Inglis, unreported (November 29, 1989),
docket no. 8901 1179-C1, per Quigley J. (Alta. Q.B.);
R. v. Dubas, unreported (September 17, 2010), docket
no. 091322875P1, per Fraser P.C.J. (Alta. Prov. Ct.).
Criminal Code, s. 40.
Ibid., s. 131.
Ibid., s. 136.
Ibid., s. 137.
Ibid., s. 139.
Ibid., s. 504.
Ibid., s. 507.1.
R. v. Dubas, supra, note 104.
See for example Criminal Code, s. 486.4.
Youth Criminal Justice Act, S.C. 2002, c.1, s. 110.
Angle v. LaPierre, [2006] A.J. No. 304, 2006 ABQB
198; affd [2008] A.J. No. 298, 2008 ABCA 120.
[1989] S.C.J. No. 86, [1989] 2 S.C.R. 170.
[2009] S.C.J. No. 51, 2009 SCC 51.
Ibid., at para. 4.
Ibid., at paras. 79-80.
Ibid., at para. 86.
[2009] M.J. No. 154, 2009 MBQB 116, at para. 63.
2008 CarswellOnt 7837, at para. 36.
[2008] S.J. No. 15, 2008 SKQB 25, at para. 20.
[2009] S.J. No. 69, 2009 SKQB 56, at para. 29.
[2009] N.S.J. No. 314, 2009 NSSC 215, at para. 89.
2009 CarswellOnt 7412 (S.C.), at paras. 81-85.
[2007] S.C.J. No. 41, 2007 SCC 41.
For those interested in following up on this tort, see
B.A. Vail, “Police Civil Liability to Suspects for Negligent Investigation after Hill”, Criminal Trial Lawyers’
Association Short Snapper Seminar, January 30, 2010.
R. v. McNeil, [2009] S.C.J. No. 3, 2009 SCC 3.
[2008] O.J. No. 2497 (C.A.).
Ibid.
Risk Management in Canadian Education
132
133
134
135
May 2012 Volume 12, No. 4
136
Ibid., at paras. 37-39.
137
Ibid., at paras. 72-74.
138
R.S.A. 2000, c. S-3, s. 138(1)(c)(i).
[2008] B.C.J. No. 2076, 2008 BCCA 434.
Ibid., at para. 35.
Ibid., at paras. 28-40.
Supra, note 130.
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