Chapter IV: The Law
The conduct of teachers in relation to their students is, to a great extent, regulated by law. Similarly, the duties and obligations of others, including fellow teachers, principals, school boards, police and social workers, to address suspected or proven sexual misconduct (and the consequences for breaching these duties and obligations) are also regulated by law. This chapter explores the following questions: Do these laws adequately define, and protect against, sexual misconduct towards students? Do they do so in a way which is compatible with the rights of those suspected of misconduct to fully defend themselves? To what extent are these laws fully resorted to, to prevent sexual misconduct? Do the applicable rules of procedure and evidence adequately reduce the exposure of victims to further trauma as witnesses or to re-victimization? To what extent can these rules better protect these victims in a way which is compatible with the rights of those suspected of misconduct?
The Report makes 45 recommendations on how the law can better address the problem of sexual misconduct in schools.
The Criminal Code sets out a variety of offences which criminalize sexual abuse by teachers against students. These include sexual interference, invitation to sexual touching, sexual exploitation, indecent acts and exposure, and sexual assault. The Report details the elements of these and other relevant offences.
Section 161(1)(b) of the Code provides that, where an accused is found guilty of certain sexual offences respecting a child under 14 years of age, the sentencing judge shall consider making an order prohibiting the offender from seeking, obtaining or continuing any employment or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards children under 14. Despite the fact that judges must consider whether to make such an order, the section has received relatively little judicial consideration since its enactment in 1993.
The Report concludes that perpetrators who commit the crimes listed in section 161 (together with additional recommended offences) should, in the interest of children's safety, generally be disqualified from employment, or from serving as volunteers in a capacity that involves being in a position of trust or authority towards children. The length and conditions of disqualification should depend upon the circumstances of each case. Evidence that the accused is a pedophile or a demonstrable risk to children, while relevant, is not a precondition to the imposition of a section 161(1)(b) order.
Section 161(1)(b) represents an important tool for enhancing public safety and student security. Prosecutors and sentencing judges need to be more mindful of its appropriate scope and application. Recommendations 1 to 4 address the deficiencies in the legislation and in its current use.
Ontario Human Rights Legislation
The Ontario Human Rights Code specifically addresses sexual discrimination, sexual harassment, sexual solicitations, advances and reprisals. Some of the Code's provisions are capable of being utilized by students seeking a remedy for sexual misconduct by their teachers but, in practice, understandably, are not resorted to. However, the Code has primacy over other Ontario legislation, over collective agreements between school boards and teachers' unions and, as such, will be interpreted and applied in proceedings that may result in a teacher being decertified, dismissed or otherwise sanctioned.
The Code sets standards for conduct which have fundamental importance to the school environment. It should inform the content of sexual harassment policies of school boards. Though this review is concerned with sexual abuse or harassment by teachers against students, students may sexually harass other students on a daily basis. A school environment which is not respectful of the rights of everyone to be free from discriminatory comments or conduct is more likely to condone sexual abuse or harassment by teachers and students. The Report strongly encourages school boards to implement sexual harassment policies which regulate the conduct of teachers and students.
The Code's provisions and supporting jurisprudence clarify what sexual harassment is and are therefore fully analysed in the Report. However, the Code cannot exhaustively articulate the appropriate boundaries for teachers in their relationships with students. Conduct must be "unwelcome" to constitute sexual harassment under the Code. Certain conduct, such as sexual advances or highly sexualized comments by a teacher to a student, are completely inappropriate in the school environment, regardless of whether any student finds the conduct to be unwelcome. The Code represents an important starting point for defining the appropriate boundaries of teacher-student relationships.
Child and Family Services Act
Section 72 of the Child and Family Services Act imposes a statutory duty on every person to report reasonable suspicions of child abuse, including sexual molestation or exploitation, and the information upon which those suspicions are based, directly to a children's aid society. In addition, section 72 makes it an offence for certain professionals, including teachers and principals, to fail to so report. The Report analyses the difficult interpretive issues which this section presents.
Section 72 is designed to provide a moral and legal incentive to early reporting of suspected child abuse which, in turn, makes it more likely that such abuse will be identified and ended early. The legislation, particularly as recently amended, is intended to put the best interests of the child first. A standard of "reasonable grounds to suspect", a requirement that reporting be done "forthwith" and that there need only be reasonable grounds to suspect that "there is a risk" of future sexual abuse all support an approach that favours early, outside intervention. Putting children's safety first necessarily means that there will be cases reported to a children's aid society that ultimately, after investigation, will not warrant criminal or disciplinary proceedings. This is inevitable.
However, section 72 contemplates a limited scope for some preliminary evaluation by a school before a report is made. While the threshold is a low one, it does not contemplate the automatic reporting of any information communicated, regardless of its ambiguity or patent frivolousness. For example, sexual misconduct unrelated to abuse is not contemplated by section 72 and should be addressed within the school system. All of this assumes that any decisions not to report are made free from stereotypical notions about student unreliability or a failure to appreciate the kinds of grooming activities that may evidence a risk of sexual abuse. The education and training of educators as to the scope and application of section 72 is all important. Recommendation 5 is directed at clarifying who the assailant must be before the duty to report is triggered.
Once it has been determined that conduct is reportable (either to the police or children's aid society), it is the role of these authorities, and not school officials, to investigate the conduct. Chapter VI establishes the protocols for ensuring that official investigations are not compromised (and students not unduly traumatized) by schools.
The Education Act, the Teaching Profession Act, and the Ontario College of Teachers Act, 1996 all play a role in regulating the conduct of the educational community. The duties of educators and their school boards are, to varying degrees, defined in each statute or in the regulations thereunder. The legislative articulation of these duties is intended to inform educators as to the standards expected of them, and to form a basis for disciplinary proceedings against educators where there has been a significant breach of these duties. Disciplinary proceedings may be of two kinds: those relating to employment and those relating to professional status.
Though sexual misconduct would clearly constitute "just cause" for discipline as well as professional misconduct, the standards, as presently stated, provide little or no insight as to what sexual misconduct is. The regulation to the Ontario College of Teachers Act, 1996 represents the only specific reference in the three education-related statutes to sexual impropriety. It identifies "sexual abuse" as professional misconduct. Sexual abuse is not defined. The term "sexual abuse" is ill-suited to embrace the full range of sexual activity that should constitute professional misconduct. Though such conduct might be captured by the other heads of professional misconduct in the regulation, these heads of misconduct provide little guidance as to what sexual misconduct is.
Recommendations 6 to 11 provide for a definition of "sexual misconduct" to be included in the regulation to the Ontario College of Teachers Act, 1996 and to be elaborated upon in a Code of Ethics to be adopted by the Ontario College of Teachers. The definition (contained in recommendations 6.2 and 7.2) not only draws upon criminal and human rights law, but also specifically prohibits any sexual relationship with a student or a former student under the age of 18 and any conduct directed to establishing such a relationship. Commentary to the College's Code of Ethics should explain and provide illustrations of sexual misconduct and dispel misconceptions commonly held or advanced in response to allegations of misconduct. These are identified in the Report.
To ensure that codes of conduct are disseminated and made known to all interested parties, and are applicable to school volunteers and employees who need not be members of the College of Teachers, school boards should have policies that incorporate the minimum standards of conduct that apply across Ontario. However, school boards are free to impose higher standards of conduct in their own policies and protocols.
Apart from establishing what sexual misconduct is, a number of interested parties urged the review to address related conduct, such as gift-giving, writing personal letters, driving students home, and allowing students to stay at teachers' residences. Some of these activities, such as writing notes of a personal nature, may manifest sexual harassment or conduct leading to a sexual relationship between teacher and student and, therefore, would already constitute sexual misconduct. Other activities may be entirely appropriate or inappropriate, depending upon the circumstances. The challenge is to create rules that do not inhibit normal social interaction between teachers and students, but enhance a nurturing environment while protecting students.
The Report concludes that it would be unwise to create a province-wide policy that defines, for example, when a teacher can or cannot drive a student home from school. Answer may depend upon the locale, personal circumstances and exigencies that cannot be exhaustively articulated. Instead, recommendation 10 suggests that the College's Code of Ethics should state a teacher's duty to avoid activities that, standing alone, may not constitute sexual misconduct but would raise concerns in the minds of a reasonable observer as to their propriety. Considerations that teachers should be mindful of in evaluating the propriety of their activities are detailed in the Report. Each school board should, where desirable, refine these general principles through policies and protocols that address issues of particular concern and application to their community.
If sexual misconduct is to be effectively identified and addressed, students (and others within the school system) must feel secure in coming forward with complaints or other information about alleged sexual misconduct. In order to foster such a safe and supportive environment, Recommendation 11 suggests an anti-reprisal provision be included in the Ontario College of Teacher's Code of Ethics.
This section of the Report also focuses upon the duties and obligations of school boards, fellow educators, principals and supervisory officers to address known or suspect sexual misconduct by other school employees or volunteers. Recommendation 13 proposes that the College's Code of Ethics specifically provide that all members of the College (teachers, principals and supervisory officers) have a duty to protect students by intervening in cases of suspected sexual misconduct. The ways in which members are expected to intervene are outlined in the Report.
A significant issue that arose during this review was the interaction between a teacher's duty to report known or suspected sexual misconduct and a teacher's duty to a fellow teacher under section 18(1)(b) of the Regulation under the Teaching Profession Act. Under section 18(1)(b), a teacher has a duty to other teachers "on making an adverse report on another member, [to] furnish him or her with a written statement of the report at the earliest possible time and not later than three days after making the report." This section should have no application to cases of suspected sexual misconduct. However, the evidence before the review demonstrated that some teachers continue to believe that the "adverse report" provision does apply to such cases and, as a result, are inhibited in reporting their suspicions. Indeed, a number of teachers and a principal reported anxiety in reporting DeLuca, based, at least partially, upon their perceived duty to advise DeLuca under section 18(1)(b). As well, a mandated disclosure in writing to a party suspected of sexual impropriety could adversely affect the investigation or the emotional well-being of the complainant. Recommendation 12 is designed to clarify that section 18(1)(b) should have no application to reports of suspected sexual misconduct.
School boards are presently obligated to report certain conduct by teachers (such as convictions for sexual offences) to the Ontario College of Teachers. Otherwise, they are given wide discretion under the legislation. This unfettered discretion has resulted in inappropriate non-reporting of some cases. The Report identifies deficiencies in the present reporting obligation and, in recommendation 14, suggests changes that ensure that the College is appropriately notified of cases deserving review. Situations where a school board disciplines a teacher in its employ for engaging in sexual misconduct or where a teacher resigns during an investigation into allegations of sexual misconduct are specifically addressed. Recommendation 15 proposes a complementary amendment to the Education Act to ensure that school boards are fully informed by principals and supervisory officers of the information relevant to the boards' obligation to report. Finally, recommendation 16 ensures that the College is able to share information with a school board regarding the discipline of a member employed by that board.
Common Law and Civil Liability
Recent developments in the law relating to the doctrine of vicarious liability suggest that school boards may be at a greater risk of being held vicariously liable for the sexual misconduct of their employees. The financial consequences that may flow by way of compensatory or punitive damages when reasonable steps are not taken to protect students from such misconduct underscore the need for school boards to develop and implement effective policies or protocols to identify and prevent such misconduct in their schools.
Special Evidentiary and Procedural Considerations
Students who allege they have been the victims of sexual misconduct by their teachers may be called upon to testify about this misconduct or describe it in statements provided to investigators. These accounts may be required in both criminal and administrative proceedings.
It is now well recognized that providing evidence in a formal setting can be very traumatic for a child. The imposing atmosphere of a court or hearing room, the repetition of details of an event to strangers in public, cross-examination, face-to-face confrontation, and physical separation from a parent or trusted relative are some aspects of providing evidence which profoundly affect child witnesses. The search for the truth may also be thwarted if children and adults are treated in the same way.
The heightened sensitivity to the difficulties that face children when called upon to testify has been reflected in a number of relatively new evidentiary and procedural rules that apply to various kinds of proceedings involving child witnesses.
There is also a new appreciation of how children's evidence should be evaluated for accuracy and reliability. Central to this appreciation is the removal of the stereotypical notion that such evidence is inherently unreliable or always less reliable than the evidence of adults and must be treated with special caution.
Some of this analysis also has application to complainants, whether adults or children, in prosecutions for sexual offences. As is the case for children generally, it is also recognized that sexual complainants are often deeply affected by their testimonial involvement and that certain stereotypical notions have been applied in the past to influence the assessment of their credibility.
The Report recognizes that special evidentiary and procedural rules that govern child witnesses and sexual complainants need to strike a balance between the interests of such witnesses and those of the adverse party. However, in administrative proceedings, greater accommodation can appropriately be shown to the interests of child witnesses and sexual complainants. This accords with the interests at stake in administrative as opposed to criminal proceedings.
The Report concludes that some administrative tribunals give inadequate consideration to the needs of child witnesses or sexual complainants by approaching the issue as though they were conducting a criminal trial. In some areas, special and more relaxed evidentiary and procedural rules apply to administrative proceedings, such as those found in sections 18.1 to 18.6 of the Ontario Evidence Act. These rules, which are not always known or understood, strike an appropriate balance between the interests of witnesses and responding parties, and should be utilized in administrative proceedings.
Indeed, several rules of practice adopted by the Ontario College of Teacher's Discipline Committee may be less mindful of the interests of child witnesses than the Ontario Evidence Act provisions.
Recommendations for change in this section of the Report are designed to address what evidentiary and procedural rules should apply to administrative proceedings in particular and, as well, to ensure that these rules are known to the parties and to the decision-makers and are adopted in practice. The chapter also revisits the stereotypical notions which need to be avoided in the assessment of credibility and reliability.
The Report notes that the above commentary assumes that students or former students need testify in administrative proceedings. Too little attention has been given to when, and to what extent, children or sexual complainants need provide viva voce testimony in such proceedings, particularly where they have previously testified in the related criminal proceedings. Recommendations address these issues, as well as the use generally to be made of evidence, findings of fact and reasons for judgment in related proceedings.
(i) Obviating the Need for Student Testimony
Generally, out-of-court statements cannot be introduced in a criminal case as proof of the truth of their contents. This is known as the hearsay rule. It reflects a well-established recognition of the dangers associated with out-of-court statements.
However, an out-of-court statement is admissible in a criminal trial where its admission is reasonably necessary to the determination of a fact in issue and where the circumstances surrounding the making of the statement provide sufficient indicia of reliability.
The same necessity/reliability exception has application to administrative proceedings such as disciplinary hearings before the Ontario College of Teacher's Discipline Committee or arbitration hearings under the Labour Relations Act, 1995. Indeed, the Report concludes that it is appropriate to apply a lower threshold of reliability and necessity in the administrative law context. This accords with the interests at stake in these proceedings. In striking the balance between competing interests, the rights of children or sexual complainants may acquire equal or greater prominence, particularly where the adverse party cannot lay claim to a right to make full answer and defence arising out of a potential deprivation of liberty. This position also accords with the very broad discretion conferred upon administrative tribunals to admit relevant evidence and the less formalistic approach adopted generally by such tribunals. This means, for example, that in administrative proceedings, a determination of reasonable necessity may be made with greater regard to the best interests of the child.
Further, where the reliability of a hearsay statement is particularly high, a compelling argument can be made that a determination of reasonable necessity can largely be dispensed with in administrative proceedings. The prior testimony of a witness taken under oath or solemn affirmation, who was cross-examined at an earlier proceeding by the party against whom the evidence is to be used, will often be highly reliable hearsay.
Students are sometimes requested to give testimony in both criminal and disciplinary proceedings. Occasionally, they may be called upon to testify both in grievance hearings and proceedings before the College's Discipline Committee. Each of these proceedings may themselves involve multiple interviews, formal statements and repeated testimony. Testimony may span many days. For those students who were victims of sexual misconduct by their teachers, the multiplicity of proceedings is at times unbearable, contributes to their emotional distress, interferes with counselling and delays well-being, discourages seeking legitimate redress for wrongs, and ultimately deters other victims from coming forward. A broader, principled approach to the admissibility of testimonial hearsay can better address these concerns in a way which is fair and not incompatible with the rules of natural justice.
Recommendations 18 to 22 address the admissibility of hearsay evidence in administrative proceedings. Recommendation 19 favours the admission of prior testimonial statements as evidence in administrative proceedings, subject to articulated pre-conditions and a residual discretion to exclude, that ensure fairness to all parties. Certain complementary amendments to existing legislation are also proposed.
The Report also addresses the evidentiary value of a finding of guilt, and the trial judge's reasons for judgment and sentence which relate to that finding, at subsequent administrative proceedings. Recommendations 23 to 25 outline the appropriate use of a Certificate of Conviction or Discharge, as prima facie proof that the crime was committed and the specific findings of fact contained in reasons for judgment or sentence, as prima facie evidence of those facts. Such findings of fact explain the finding of guilt and should be regarded as incidental to the Certificate of Conviction or Discharge.
Recommendation 26 addresses the use to be made of findings of fact, other than those which support a finding of guilt. Of course, even an acquittal does not foreclose subsequent administrative proceedings for two reasons. First, proof beyond a reasonable doubt represents a higher burden of proof than that needed to establish sexual misconduct in non-criminal proceedings. Second, conduct which does not amount to a crime may nonetheless constitute disciplinary misconduct. This recommendation suggests that findings of fact, other than those which support a finding of guilt, may be treated as prima facie evidence of those facts in the discretion of the administrative hearing. However, important factors informing the exercise of that discretion and ensuring fairness to the affected teacher are fully outlined in the recommendation.
(ii) Accommodating the Student Witness
This section of the Report examines in more detail the ways in which student witnesses may be better accommodated when they must give testimony. Again, applicable rules must be designed to accommodate the interests of such witnesses and the need to discover the truth in ways which remain consistent with the adverse party's interests.
Recommendations 17 and 27 to 44 specifically address existing and recommended evidentiary and procedural rules that may apply to child witnesses or sexual complainants such as the use of a screen and closed-circuit televised evidence, support persons, limitations upon personal cross-examination by an unrepresented adverse party, publication bans and in camera hearings and videotaped statements. These recommendations generally favour greater recognition of the best interests of vulnerable witnesses in applicable rules and through procedures that ensure that parties tendering such witnesses, administrative tribunals and the witnesses themselves are fully conversant with these rules. Considerable emphasis is also placed upon the desirability of early videotaped interviews of complainants and young witnesses by trained investigators.
(iii) Speculative Myths, Stereotypes and Generalized Assumptions
The perpetuation of stereotypes regarding child witnesses significantly impacts upon the identification and prevention of sexual misconduct in several ways. They may skew the investigative process and lead to an unwarranted conclusion as to the validity of a complaint. Similarly, they may distort the adjudicative process itself. The Report identifies six myths and stereotypes regarding children and sexual complainants: children and their accounts of sexual abuse are inherently unreliable; a student's allegation of sexual abuse is unreliable unless he or she made the complaint or disclosure shortly after the event; a student's allegation of sexual misconduct is unreliable if he or she has previously been involved in sexual activity (specifically addressed in recommendation 45); all teachers who sexually abuse young children are pedophiles; teachers only sexually abuse children in seclusion; and the psychological and emotional trauma associated with sexual abuse is absent where less physically intrusive abuse is involved.
The objective is to identify and thereby avoid assumptions which may not be borne out in individual cases. The objective is not to replace these stereotypes with equally rigid assumptions which operate to the detriment of the responding teacher.