The Alberta Teachers’ Association

Introduction

Teachers are often placed in a position of trust with students. This relationship comes with certain legal parameters. On the rare occasion, a teacher’s breach of these legal obligations to their students can result in criminal investigations, charges and convictions under the Criminal Code. This Chapter provides legal, ethical and professional guidance for teachers with the aim of preventing criminal conduct and protecting teachers’ rights as Canadian citizens when the full power of the state comes down on them through the criminal justice system.

Offences

The Criminal Code offences most likely to arise in the teacher employment context are explained below.

Common assault

Historically, teachers were most likely to be charged for common assault under subsection 265 (1) of the Criminal Code. There are three elements of common assault: (a) lack of consent by the victim, (b) intention and (c) an application of force to the victim (or the threat of force that the victim believes will be carried out).

If a person consents to the application of force, any subsequent touching within the scope of that consent cannot amount to an assault. Such consent must be freely given, not coerced by the use of authority or by fraud. Provocation, such as insulting words or gestures, is not a defence. The application of force must be intentional. Accidental contact does not amount to an assault, whether or not it produces injury. By the same token, if there was any intent at all to make contact, the fact that injury was far more severe than intended is of no significance. It is not strictly necessary that there be an application of force. Mere touching with intent can amount to an assault.

Although section 43 of the Criminal Code can provide a defence in limited situations, this defence is limited to a context where a teacher applies force in order to protect children.

Sexual assault

Increasingly, teachers are more likely to be charged with a sexual offence.

Sexual assault is defined as conduct that includes all of the elements of common assault plus one additional element. This is that the assault is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated and/or so that the accused may gain some sexual gratification thereby. The sexual nature of the assault must be detectable by an objective standard. It is not necessary that contact be made with the victim’s sexual organs or that the assaulting party’s sexual organs be involved. The criminality of the touching, at law, focuses on the sexual integrity of the victim. In some circumstances, a pat on the behind can be a sexual assault if it is done to obtain sexual gratification or if it violates the sexual integrity of the victim.

Consent

As in the case of common assault, the lack of consent on the part of the victim is an element of sexual assault. However, consent is no defence in a sexual assault charge where the victim is less than 16 years old. The law does not allow a minor under 18 years of old to provide consent where the accused was in a relationship of trust or authority. Relationships of trust or authority are typically found between a minor and a teacher, coach, pastor or parent. Circumstances may allow a Court to infer a relationship of trust between a student and their friend’s teacher. In other words, if a relationship of trust exists, it is a crime to have a consensual sexual relationship between a teacher and a student. There would never be a time when consent between a teacher and student would be acceptable.

Sexual interference

This is a specific form of sexual assault where a person touches a part of the body of a person under 16 years old with a part of the body or an object for a sexual purpose.

Invitation to sexual touching

This also applies to persons under 16 who are “invited, counselled or incited’’ to touch the body of another person. It differs from sexual assault in that only the invitation, not actual touching, need occur.

Sexual exploitation

This offence is very similar to the two preceding ones, but applies specifically to any person who is in a position of trust or authority toward a young person.

Knowingly permitting prohibited sexual activity

This applies to an “owner, occupier or manager of premises’’ permitting such activity involving a person under 18. This opens up many areas where teachers may be at risk but particularly in cocurricular activities such as school dances and extended field trips.

Indecent exposure or act

A person doing an indecent act in public or exposing his or her genitals for a sexual purpose to a person under 16 in any place is guilty of an offence.

Luring

A relatively new provision under the Criminal Code, luring, involves online facilitation of the above offences. In other words, the person need not commit any of the above offences, but need only communicate with a person under 18 years of age by means of telecommunication, for the purpose of facilitating the commission of a sexual offence. In the age of social media, this offence is of broad application. Communications need, only on their face, suggest a luring to constitute an offence. Typically, words alone do not constitute a sexual offence. However, this offence means that something that is said to a student, of a sexual nature, may be an offence if communicated electronically. However, if it is not online then it will not be an offence.

Implications for Teachers

The above offences are very broadly defined. They can capture a wide range of conduct, from innocuous and caring gestures to sexual abuse.

If you are in a situation where boundaries may have been crossed with a student, it is important to be aware of the legal framework governing the consequences of such conduct. In rare cases, teachers may have intentions to pat a student on the back, to show support, but this is construed differently by a student.

Below are some considerations to hopefully avoid misconstruing of minor acts, and identifying the risk of more serious commissions before they occur.

The consequences of criminal charges are grave. Awareness and prevention are important: a conviction of a sexual offence will almost always lead to some jail time. In some cases involving minors, the mandatory minimum is a one year jail sentence.

Knowing the Framework

Many authorities, particularly those who frequently deal with cases of this nature, suggest that teachers should refrain from all physical contact with students. This runs counter to the beliefs of many teachers and some educational theorists that hugs and pats are important positive acts.

In turn, many students benefit from nurturing, positive relationships with teachers, especially where they are not provided with such an environment at home. Teachers are not to be discouraged from having positive relationships with their students, or to be afraid of providing this support to their students.

However, below are some behaviours to avoid when interacting with students, such as:

• Exchanging notes, comments, emails of a personal or intimate nature;
• Social media contact that is personal in nature;
• Making telephone calls of  personal nature or encouraging students to the same;
• Texting students directly without the approval of parents;
• Sharing sexually explicit images;
• Commenting on a student’s appearance;
• Meeting students outside school without the parents’ knowledge or consent;
• Dating students;
• Making physical contact of a sexual or intimate nature (even massaging, kissing, hugging or tickling);
• Unnecessary touch and, where touch is necessary or positive, seek consent first;
• Favouritism towards students, especially students of one gender;
• Becoming overly involved and invested in a student’s personal life;

Finally, teachers should document any significant discipline of students. Such documentation should be retained in your permanent personal files as many cases of accusations have been made years later. 

Unless a teacher has special training or assignment in counselling, avoid counselling students who display signs of sexual, emotional or mental vulnerability. In these situations, a teacher should avoid dealing with a student alone. At minimum, teachers should consult regularly with the teacher counsellor in the school or with someone else with expertise in this area and keep a record of such consultations.

When a Student Comes to You

Because many teachers have trusting relationships with their students, you may encounter a scenario where a student discloses an incident of sexual abuse or other incidents where they were victims of a crime. Students’ complaints are not to be discounted, but most teachers are not trained to counsel or investigate such incidents. Therefore, teachers should refer these issues to their school’s counsellors. Where a school does not have a counsellor, teachers are advised to call Member Services for direction.

Where you believe a child is presently at risk, you have a positive duty to  report it using the Child Abuse Hotline: 1-800-387-5437 (KIDS).

What to Do If You Are Accused

If you are accused, you should remember the following:

• You have the right to remain silent. You should say:” I will cooperate but I will remain silent until I talk to a lawyer.” Any comments or statements you make may be used against you later. You are required to identify yourself (name, address and birthdate) to the police. Beyond that you should not volunteer any information or respond to any questions until you have sought and received legal advice.
• As a teacher, you have access to necessary legal advice on matters relating to your work. To get it, contact the Association as soon as possible.
• In the meantime, avoid discussing the situation with anyone else (other than your legal spouse). Discussing it with other persons may put them in the position of being called to testify against you.
• Do not attempt to contact any of the complainants or witnesses involved.
• Do not panic. It is highly stressful to be charged with a criminal offence and have your liberty at stake.  Staying calm and listening to advice will at least avoid making it worse.

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