Cure For The Hangover: Criminal Investigation Issues For Teachers And School Districts Part 1
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.
TEACHER CRIMINAL DEFENCE RETAINERS
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.
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.
The differences between a teacher criminal defence file and a standard criminal defence file can be summarized as follows:
Defence counsel is faced with a multi-front war, involving more than merely the defence of the criminal proceeding; The factual context of an offence alleged to have been committed in a school environment is unique in many ways; The availability of the "teacher/parent defence" pursuant to s. 43 of the Criminal Code; Funding of the defence and/or pursuit of remedies where the teacher is exonerated; and 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 teacher accused of a criminal allegation is looking at four types of consequences that might flow therefrom:
Criminal investigation and possibly prosecution. Civil action for damages. Employment issues. 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:
4.01 (1) When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law, while treating the tribunal with candour, fairness, courtesy, and respect.6
The Commentary to Rule 4.01(1) goes on to provide as follows:
. . . In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer's duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties' right to a fair hearing in which justice can be done. . . .
The lawyer's function as advocate is openly and necessarily partisan. Accordingly, the lawyer is not obliged (except as required by law or under these rules and subject to the duties of a prosecutor set out below) to assist an adversary or advance matters harmful to the client's case.
The lawyer should never waive or abandon the client's rights, such as an available defence under a statute of limitations, without the client's informed...
To continue readingRequest your trial