Issues of Misconduct

AuthorJustice Marvin A Zuker
Issues of Misconduct
Justice Marvin A Zuker (retired)
As the world continues to ch ange at a rapid pace, educators in the twen ty-
rst centu ry face a wide variety of c hallenges. As teachers enter t he eld
of education, it is necessa ry that they come equ ipped with a body of know-
ledge that can help t hem to navigate through di erent elements of thei r
career. One of the most important areas that teacher s must be infor med
about is their lega l position within societ y, as well as the obli gations and
duties that go along w ith that position.
Unfortun ately, preservice educat ion programs for teac hers do not al-
ways, if at al l, cover the legal contex t and implicat ions of our education
system in Ca nada in enoug h depth to prepare educ ators for the legal ele-
ments of their role in s ociety. In Canad a, more specica lly according to
the Criminal Code of Canada, membe rs of certai n professions are deemed
to be in a “position of tr ust.” Due to their role in society, teachers a re most
often considered to b e in a position of trust. Working so closel y with chil-
dren, as wel l as being respon sible for the safet y and well-being of t hose
children , heightens teachers’ moral, e thical, and lega l obligations.
It is the unique re lationship bet ween teacher and s tudent that lega l-
ly obligates teachers to m aintain a duty of care tow ards those they teach.
Parents entr ust teachers to the ca re of their child ren while the parent s are
not present, and th is responsibi lity is not ta ken light ly withi n our legal
system. The Educat ion Act of Ontar io,1 for example, denes a nd explains
the paramete rs of what is referred to as “in loco parentis.” In simple term s,
1 RSO 1990, c E.2, as ame nded.
188 / Marvin A Zucker
teachers tak e on the role of the parent while st udents are under their c are,
subject, of cours e, to statutory considerat ions.
One of many Ontar io regulat ions perta ining to teac hers is “a teach-
er shall be res ponsible for eecti ve instr uction, tra ining a nd evaluation
of progress of pupils in t he subjects assigned to the te acher.2 Apart from
a teacher’s basic duties wit hin the classroom, the re are also “supervisor y
duties.” These duties are more closely l inked to the safet y of students and
remain wit hin the spect rum of responsibilit y.
It is importa nt to note that due to the n atural con nection betwe en
teachers and scho ol boards, stand ards of ethica l behaviour exte nd outside
the school sett ing. Teachers are seen to be repre sentatives of the sc hool
board for which t hey work and, therefore, have a responsibi lity to uphold
certai n values held by the board when t hey are out in the communit y. The
various duties a nd responsibil ities of teachers a re extensive and often
stretch beyond t he settin gs of the classr oom and school. For thi s reason,
teachers need to be awa re of what they may be held accountable for.
The “position of tr ust” has been referenced and a ssessed in the context of
our crim inal cour ts where teachers h ave been charged w ith actions not
acceptable for appropriate a nd responsible student–teacher relat ionships.
In 1984, the Commit tee on Sexual Assault aga inst Children and Youth de-
veloped the report S exual Oences against Children, ot herwise k nown as
the Badgley Repor t, in an eort to f urther protect ch ildren again st crimes
of a sexual nat ure.3 The committee felt it import ant to deem teachers a s
well as those i n other professions to be in a position of t rust or authority.
Although teac hers are seen today to hold a position of trus t within
society, Parlia ment did not ful ly accept the recom mendations put fort h
in the Badgle y Report. Instead, Parl iament wanted the eva luation of each
individua l case to be recognize d as an important pa rt of the process when
determin ing whether or not a person was in a position of t rust or author-
ity. Despite the fact t hat a position of tru st is present in most c ases in-
volving teacher a nd student relationships, Parl iament was careful not to
construc t a legal situation th at automatically held te achers in a position of
2 Operation of Schools — Gener al, RRO 1990, Reg 298, as amended .
3 Committee on Sex ual Oences aga inst Chil dren and Youths, Sex ual Oences
Against Children (Ott awa: Supply and Serv ices Canada , 1985) [Badgley Report].
Issues of Misconduct / 189
trust or aut hority without looking f urther into the u nique circumst ances
of each case. Of the ut most importa nce was the protec tion of child ren
against p ossible sexual predators. With the sa fety of children rema ining
an obvious prior ity, Parliament a lso set out to protect tea chers from any
legal unfa irness based solely upon thei r occupation.
The submission of t he Badgley Report resulted i n amendments to the
Criminal Code of Canad a.4 In var ious sexua l assault and se xual exploita-
tion cases involv ing teachers, the nature of t he relationsh ip between the
teacher and st udent is evaluate d within the context of a position of t rust
or authority; for ex ample, section 153(1) of the Code outlines the oence of
sexual ex ploitation as follows:
153.(1) Every person comm its an oence who is i n a position of trust or
authority t owards a young per son, who is a person wit h whom the young
person is in a re lationship of depe ndency or who is in a rel ationship wit h
a young person t hat is exploitative of t he young person, a nd who
a) for a sexual p urpose, touc hes, direc tly or indi rectly, wit h a part of
the body or wit h an object, any pa rt of the body of the you ng person;
b) for a sexual pur pose, invites, counsel s or incites a young person to
touch, dir ectly or indi rectly, with a pa rt of the body or wit h an object,
the body of any pe rson, including the bo dy of the person who so in-
vites, coun sels or incites and t he body of the young pers on.
The implication s of being found in a position of t rust can grea tly aect the
outcome of a crimi nal case. The den ition and interpret ation of being in a
position of trus t has been the central i ssue of several cases.
In R v Audet,5 the posit ion of trust was a central f actor. At a night club
in Campbellt on, New Brunswick, the acc used, Yves Audet, a twent y-two-
year-old physical education teacher, encou ntered a student he had previ-
ously taught. T he complainant ha d just celebrated her four teenth birt hday
and was accompan ied by two of her female cousin s. Both of the complain-
ant’s cousins were in t heir twenties and ha d purchased a few beers f or the
fourteen-year-old while at t he night club. Audet indicated surpr ise upon
seeing his u nderage student at the venue.
After spending the even ing together at t he night club, Audet’s male
friend, who had a ccompanied him, sugges ted that they all go to a cot tage,
4 Ibid. Criminal Code, RSC 1985, c C-46 [Code].
5 [1996] 2 SCR 171 [Audet]. See, more recent ly, R v Zhou, 2016 ONCJ 547, where the
accused wa s sixteen and t he complaina nt fourteen yea rs of age.

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