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W. R. Dolmage

Are we in trouble?Are we in trouble?

“We’re in trouble, Mr. Brooks. Billy Bradford has been using his detention time to study law.”

“We’re in trouble, Mr. Brooks. Billy Bradford has been using his detention time to study law.”

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W. R. Dolmage

Parting Shots ThoughtsParting Shots Thoughts The Law is one area for which the old adage

"A little knowledge is a dangerous thing" has particular application. Always avail yourself of legal advice.

There is no necessary connection among what an individual may "want," what is "fair," what is "just," what is "right," and what is "law."

Legal Realism - No one knows what will happen in a courtroom.

The Law is one area for which the old adage "A little knowledge is a dangerous thing" has particular application. Always avail yourself of legal advice.

There is no necessary connection among what an individual may "want," what is "fair," what is "just," what is "right," and what is "law."

Legal Realism - No one knows what will happen in a courtroom.

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W. R. Dolmage

Constraints or Authority?Constraints or Authority?

ProfessionalCode of Ethics

ProvincialStatutes

Education Act

Federal Statutes Criminal Code,

YCJA

Local Board and School Rules

Collective Agreement

LINCCommon Law

Civil Liability for Assault

ConstitutionCharter

s.7, 12, 15

Sources of Teachers’ Authorityto Control and Discipline

Sources of Teachers’ Authorityto Control and Discipline

The EducatorThe EducatorIn The SchoolIn The SchoolThe EducatorThe EducatorIn The SchoolIn The School

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W. R. Dolmage

The Exercise Of AuthorityThe Exercise Of Authority

Sources of Authority statute, regulation common law:

In loco parentis social utility

Limits on the Exercise of Authority Assault - criminal and civil § 43 of the Criminal Code Self-Defense Law Reform Commission recommendations You be the judge

Sources of Authority statute, regulation common law:

In loco parentis social utility

Limits on the Exercise of Authority Assault - criminal and civil § 43 of the Criminal Code Self-Defense Law Reform Commission recommendations You be the judge

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W. R. Dolmage

. . . maintain . . . good order and general discipline . . . .

. . . maintain . . . good order and general discipline . . . .

“My project’s ready for grading, Mr. Big Nose . . . .

Hey! I’m talkin’ to you, squidbrain!”

“My project’s ready for grading, Mr. Big Nose . . . .

Hey! I’m talkin’ to you, squidbrain!”

IA LAB

Mr. Dolmage

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W. R. Dolmage

License?

License?

"Well, I'll be darned . . . I guess he does have a license to do that."

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W. R. Dolmage

Statutory Sources ofTeachers’ AuthorityStatutory Sources ofTeachers’ Authority

Education Act

§231 A teacher shall:(d) maintain, in cooperation with his colleagues

and with the principal, good order and general discipline in the classroom and on school premises;

(i) exclude any pupil from class for overt opposition to the teacher’s authority or other gross misconduct . . .

Education Act

§231 A teacher shall:(d) maintain, in cooperation with his colleagues

and with the principal, good order and general discipline in the classroom and on school premises;

(i) exclude any pupil from class for overt opposition to the teacher’s authority or other gross misconduct . . .

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Teachers’ Authority andthe Criminal Code

Teachers’ Authority andthe Criminal Code

Criminal Code, §43

a schoolteacher . . . is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.

Criminal Code, §43

a schoolteacher . . . is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.

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Statutory Sources ofPupils’ Duty

Statutory Sources ofPupils’ Duty

Education Act§150 In the exercise of his or her right to access to the schools . . .

every pupil shall:

observe standards approved by the board . . . with respect to . . . general deportment, obedience, courtesy and respect of the

rights of other persons;

be diligent in his studies;

conform to the rules of the school approved by the board of education . . . and submit to such discipline as would be exercised by a kind, firm and judicious parent.

§150 (1) Every pupil shall be accountable:

to the teacher for his conduct on the school premises during school hours and during such hours as the teacher is in charge of the pupil in class or while engaged in authorized school activities conducted in out-of-school hours;

§152 Every pupil shall be subject to the general discipline of the school.

Education Act§150 In the exercise of his or her right to access to the schools . . .

every pupil shall:

observe standards approved by the board . . . with respect to . . . general deportment, obedience, courtesy and respect of the

rights of other persons;

be diligent in his studies;

conform to the rules of the school approved by the board of education . . . and submit to such discipline as would be exercised by a kind, firm and judicious parent.

§150 (1) Every pupil shall be accountable:

to the teacher for his conduct on the school premises during school hours and during such hours as the teacher is in charge of the pupil in class or while engaged in authorized school activities conducted in out-of-school hours;

§152 Every pupil shall be subject to the general discipline of the school.

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W. R. Dolmage

Common Law Sourcesof Teachers’ AuthorityCommon Law Sourcesof Teachers’ Authority

The Doctrine of “in loco parentis” The rule is based on an implied delegation of parental authority.

HOWEVER, THIS IS CLEARLY PROBLEMATIC. What if there is an express withdrawal of permission? Will the teacher require red & blue tags? It's OK to touch pupils with blue tags, but not red tags?

Fortunately, In loco parentis is no longer the only operative principle in the context of making and enforcing school rules.

The Doctrine of Social Utility an alternative rationale based on the high social utility of

maintenance of order and discipline in school as a pre-condition for learning. From this perspective teachers act as agents of the state, as opposed to representatives of parents.

So . . . the upshot of the common law is that teachers have authority to

control and discipline, even to use “reasonable” physical force if necessary, even without parental permission.

The Doctrine of “in loco parentis” The rule is based on an implied delegation of parental authority.

HOWEVER, THIS IS CLEARLY PROBLEMATIC. What if there is an express withdrawal of permission? Will the teacher require red & blue tags? It's OK to touch pupils with blue tags, but not red tags?

Fortunately, In loco parentis is no longer the only operative principle in the context of making and enforcing school rules.

The Doctrine of Social Utility an alternative rationale based on the high social utility of

maintenance of order and discipline in school as a pre-condition for learning. From this perspective teachers act as agents of the state, as opposed to representatives of parents.

So . . . the upshot of the common law is that teachers have authority to

control and discipline, even to use “reasonable” physical force if necessary, even without parental permission.

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Limits on the Exercise of AuthorityLimits on the Exercise of Authority

Excessive disciplinary practices are controlled, primarily, through criminal & civil liability of teachers for assault. The same conduct can result in liability for civil or criminal assault - the

differences are in the legal implications (i.e. penal v. compensatory sanctions) and the standards of proof required.

Let's consider the criminal definition of assault. It can be simply defined as intentional application of force to a person without his/her consent without lawful justification

Without lawful justification - that brings us to §43 of the Criminal Code which tells us that certain persons are permitted to use force, providing that force is “reasonable under the circumstances.” But, what does this mean? The best we can do is comb the cases for indicators of reasonableness

(facts that courts tend to take into consideration in determining whether the force was reasonable or not).

In the great majority of cases over the years teachers have been exonerated under §43.

Excessive disciplinary practices are controlled, primarily, through criminal & civil liability of teachers for assault. The same conduct can result in liability for civil or criminal assault - the

differences are in the legal implications (i.e. penal v. compensatory sanctions) and the standards of proof required.

Let's consider the criminal definition of assault. It can be simply defined as intentional application of force to a person without his/her consent without lawful justification

Without lawful justification - that brings us to §43 of the Criminal Code which tells us that certain persons are permitted to use force, providing that force is “reasonable under the circumstances.” But, what does this mean? The best we can do is comb the cases for indicators of reasonableness

(facts that courts tend to take into consideration in determining whether the force was reasonable or not).

In the great majority of cases over the years teachers have been exonerated under §43.

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What is (was?) “Reasonable” Force?What is (was?) “Reasonable” Force?

Force was used for the purpose of correction and without malice.

There was sufficient cause for the use of force. Force used was not cruel or excessive and left no

permanent mark or injury. Force was appropriate given the age and sex of the pupil. Use of force was not protracted beyond the child’s power

of endurance. Force used did not endanger life, limb, or health, or

disfigure the child. Force was administered to an appropriate part of the

pupil’s anatomy.

Force was used for the purpose of correction and without malice.

There was sufficient cause for the use of force. Force used was not cruel or excessive and left no

permanent mark or injury. Force was appropriate given the age and sex of the pupil. Use of force was not protracted beyond the child’s power

of endurance. Force used did not endanger life, limb, or health, or

disfigure the child. Force was administered to an appropriate part of the

pupil’s anatomy.

Adapted from, Bargen, P.F. (1961). The legal status of the Canadian public school pupil.

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NOW, Do We Know What Constitutes Reasonable Force?

NOW, Do We Know What Constitutes Reasonable Force?

We may have a better idea, but we don’t KNOW!We may have a better idea, but we don’t KNOW!

Florida Legislators Advocate Teachers Use

Stun Guns On Students

Florida Legislators Advocate Teachers Use

Stun Guns On Students

We don't know until the judge in a particular case tells us, in retrospect, whether what the teacher did was reasonable under the circumstances.

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Canadian Foundation for Children, Youth and the Lawv. Canada (Attorney General)

Canadian Foundation for Children, Youth and the Lawv. Canada (Attorney General)

¶ 37 Based on the evidence currently before the Court, there are significant areas of agreement among the experts on both sides of the issue (trial decision, paras. 17). Corporal punishment of children under two years is harmful to them, and has no corrective value given the cognitive limitations of children under two years of age. Corporal punishment of teenagers is harmful, because it can induce aggressive or antisocial behaviour. Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful. Corporal punishment which involves slaps or blows to the head is harmful. These types of punishment, we may conclude, will not be reasonable.

¶ 37 Based on the evidence currently before the Court, there are significant areas of agreement among the experts on both sides of the issue (trial decision, paras. 17). Corporal punishment of children under two years is harmful to them, and has no corrective value given the cognitive limitations of children under two years of age. Corporal punishment of teenagers is harmful, because it can induce aggressive or antisocial behaviour. Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful. Corporal punishment which involves slaps or blows to the head is harmful. These types of punishment, we may conclude, will not be reasonable.

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Canadian Foundation for Children,Youth and the Law

v. Canada (Attorney General)

Canadian Foundation for Children,Youth and the Law

v. Canada (Attorney General) ¶ 38 Contemporary social consensus is that, while teachers may

sometimes use corrective force to remove children from classrooms or secure compliance with instructions, the use of corporal punishment by teachers is not acceptable. Many school boards forbid the use of corporal punishment, and some provinces and territories have legislatively prohibited its use by teachers. This consensus is consistent with Canada's international obligations, given the findings of the Human Rights Committee of the United Nations noted above. Section 43 will protect a teacher who uses reasonable, corrective force to restrain or remove a child in appropriate circumstances. Substantial societal consensus, supported by expert evidence and Canada's treaty obligations, indicates that corporal punishment by teachers is unreasonable.

¶ 38 Contemporary social consensus is that, while teachers may sometimes use corrective force to remove children from classrooms or secure compliance with instructions, the use of corporal punishment by teachers is not acceptable. Many school boards forbid the use of corporal punishment, and some provinces and territories have legislatively prohibited its use by teachers. This consensus is consistent with Canada's international obligations, given the findings of the Human Rights Committee of the United Nations noted above. Section 43 will protect a teacher who uses reasonable, corrective force to restrain or remove a child in appropriate circumstances. Substantial societal consensus, supported by expert evidence and Canada's treaty obligations, indicates that corporal punishment by teachers is unreasonable.

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W. R. Dolmage

Dealing With DefianceDealing With Defiance

Stumpy didn’t know how he got in this situation, but with the whole town watching, he knew he’d have to play it out.

Stumpy didn’t know how he got in this situation, but with the whole town watching, he knew he’d have to play it out.

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W. R. Dolmage

R. v. LAUZON (23 May 1991),Ont. Prov. Div., Merredew Prov. J. [Unreported]

R. v. LAUZON (23 May 1991),Ont. Prov. Div., Merredew Prov. J. [Unreported]

The Facts: The gym floor, part 1. The locker room. The gym floor, part 2 (with audience). The gym floor, part 3 (the gym floor,

literally). Lauzon was charged with two counts of

assault; one for the incident in the locker room and one for the incident on the gym floor (part 3).

The Facts: The gym floor, part 1. The locker room. The gym floor, part 2 (with audience). The gym floor, part 3 (the gym floor,

literally). Lauzon was charged with two counts of

assault; one for the incident in the locker room and one for the incident on the gym floor (part 3).

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R. v. LAUZON (23 May 1991),Ratio Decidendi - Merredew Prov.

J.

R. v. LAUZON (23 May 1991),Ratio Decidendi - Merredew Prov.

J. The Judge would not hear evidence of the School Board’s “policies” as these do not matter in a criminal trial.

“Lauzon had no other option but to remove Sonier physically. The physical actions . . . were forced by Sonier and there is no evidence that Lauzon did anything other than use such force as was necessary to control Sonier. . . . the evidence discloses a teacher trying to control and remove a defiant, recalcitrant student.”

“Lauzon acted as he had to; I [Merredew J.] see no other alternative available to him. In the words of the precedents, he was righteous and used necessary force for correction.”

“That Lauzon was angry and upset is also clear; it is not surprising; however, I [Merredew J.] cannot find that his anger resulted in any action on his part which would weaken his section 43 defense; simply, he acted in correction in a proper cause; he did not use excessive force, notwithstanding that Sonier's resistance forced an escalation of their physical contest.”

“In the result, the accused is not guilty on both counts.”

The Judge would not hear evidence of the School Board’s “policies” as these do not matter in a criminal trial.

“Lauzon had no other option but to remove Sonier physically. The physical actions . . . were forced by Sonier and there is no evidence that Lauzon did anything other than use such force as was necessary to control Sonier. . . . the evidence discloses a teacher trying to control and remove a defiant, recalcitrant student.”

“Lauzon acted as he had to; I [Merredew J.] see no other alternative available to him. In the words of the precedents, he was righteous and used necessary force for correction.”

“That Lauzon was angry and upset is also clear; it is not surprising; however, I [Merredew J.] cannot find that his anger resulted in any action on his part which would weaken his section 43 defense; simply, he acted in correction in a proper cause; he did not use excessive force, notwithstanding that Sonier's resistance forced an escalation of their physical contest.”

“In the result, the accused is not guilty on both counts.”

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R. v. Haberstock (1970), 1 CCC (2d) 433R. v. Haberstock (1970), 1 CCC (2d) 433

NO!

The teacher was convicted at trial. However, on appeal it was held that the accused had reasonable grounds to conclude that the boys had engaged in conduct deserving of punishment and that the accused had an honest belief that the particular boy participated; the force was reasonable and the correction took place at the first reasonable opportunity.

Would this teacher be acquitted today?

NO!

NO!

The teacher was convicted at trial. However, on appeal it was held that the accused had reasonable grounds to conclude that the boys had engaged in conduct deserving of punishment and that the accused had an honest belief that the particular boy participated; the force was reasonable and the correction took place at the first reasonable opportunity.

Would this teacher be acquitted today?

NO!

Three 12 year-old boys we observed shouting names at a teacher from a school bus as the bus was pulling away on a Friday afternoon. The words used by two of them were “SHORT RIBS”! On the following Monday, in the morning when the students returned, the teacher walked up to each of them in the schoolyard and slapped each on the face. The trial judge found that one of the boys had suffered a chipped tooth and that this particular boy had not called the name. Was the teacher found to be guilty of assault?

Three 12 year-old boys we observed shouting names at a teacher from a school bus as the bus was pulling away on a Friday afternoon. The words used by two of them were “SHORT RIBS”! On the following Monday, in the morning when the students returned, the teacher walked up to each of them in the schoolyard and slapped each on the face. The trial judge found that one of the boys had suffered a chipped tooth and that this particular boy had not called the name. Was the teacher found to be guilty of assault?

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R. v. Kanhai (1981), 60 C.C.C. (2d) 71R. v. Kanhai (1981), 60 C.C.C. (2d) 71

YES!Kanhai was not entitled to rely on the defense in s. 43 of the Criminal Code. To rely on s. 43 the accused’s honest belief that the conduct of the pupil was such as to deserve discipline must be founded on reasonable and probable grounds. In this case there were no reasonable grounds for such a belief.

YES!Kanhai was not entitled to rely on the defense in s. 43 of the Criminal Code. To rely on s. 43 the accused’s honest belief that the conduct of the pupil was such as to deserve discipline must be founded on reasonable and probable grounds. In this case there were no reasonable grounds for such a belief.

A physical education teacher, was charged with the common assault of one of his pupils. The evidence indicated that the victim, a 14-year-old grade 7 student did not run as required during a running test and was continually told by the accused to run. Towards the end of the test the accused indicated the pupil would have an “appointment” which meant a “talking to.” However, and despite the fact that the pupil exhibited no defiance or resistance, the accused grabbed the pupil by the hair and in taking him into his office banged (or rubbed) his head against the door. Was the teacher guilty of assault?

A physical education teacher, was charged with the common assault of one of his pupils. The evidence indicated that the victim, a 14-year-old grade 7 student did not run as required during a running test and was continually told by the accused to run. Towards the end of the test the accused indicated the pupil would have an “appointment” which meant a “talking to.” However, and despite the fact that the pupil exhibited no defiance or resistance, the accused grabbed the pupil by the hair and in taking him into his office banged (or rubbed) his head against the door. Was the teacher guilty of assault?

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R. v. Graham (1994)R. v. Graham (1994)

NO. . . But . . . ?NO. . . But . . . ?

A male teacher/principal with 24 years of experience was charged with assault after he “spanked” a nine-year-old female student who was distracting fellow students and who loudly and aggressively refused to follow directions relating to a math lesson he was teaching. The “spanking” consisted of a single slap on the buttocks which, it was claimed, was sufficiently hard so as to have left a “small red mark.” Was the teacher convicted of assault?

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W. R. Dolmage

The Case ForStudent Handbooks

The Case ForStudent Handbooks

Clear statement of students’ duties; Clear statement of policies re:

activities permitted and not permitted, in the classroom or on school property;

rules concerning possession or use of particular items, products, etc., ranging from particular toys, to drugs or alcohol, to weapons, at school or school sponsored activities;

the disciplinary process which will be followed and the sanctions which will be applied when infractions of school rules occur.

Clear statement of students’ duties; Clear statement of policies re:

activities permitted and not permitted, in the classroom or on school property;

rules concerning possession or use of particular items, products, etc., ranging from particular toys, to drugs or alcohol, to weapons, at school or school sponsored activities;

the disciplinary process which will be followed and the sanctions which will be applied when infractions of school rules occur.

The problem to be overcome is one of "vagueness." Students cannot be expected to obey rules that they are not aware of (i.e., rules must be in writing and must be accessible to students), or rules that are so vaguely worded that students cannot reasonably determine exactly what behavior is permitted or prohibited.