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Lifting the Veil and Closing the Loopholes:
Teacher Misconduct, Professional Standards and
Regulatory Reform
Paul W. Bennett
*
Teacher misconduct and regulating the teaching profession has become a
critical public policy issue, especially in the wake of national reports on child sexual
assault and the spread of online sexual harassment. Five Canadian provinces,
British Columbia, Ontario, Saskatchewan, New Brunswick and Alberta, have all
implemented a variety of regulatory reforms and Manitoba is engaged in
establishing a teacher registry and an independent oversight body. Some
provinces have also introduced mandatory criminal reference checks. This article
provides a status report on recent initiatives, analyzes expert advice provided
through the media and courts and delves into current trends in teacher discipline
policy and practice. It identifies the legal ‘‘loopholes” in current models and outlines
three potential policy options for affirming professional standards, monitoring
teacher conduct and weeding out that reasonably small, but ever-present,
‘ proportion of teachers found to pose a risk to students.
—
L’inconduite des enseignants et la re
´glementation de la profession enseignante
sont devenues une question de politique publique cruciale, en particulier a
`la suite
des rapports nationaux sur les agressions sexuelles d’enfants et la propagation du
harce
`lement sexuel en ligne. Cinq provinces canadiennes, la Colombie-Britannique,
l’Ontario, la Saskatchewan, le Nouveau-Brunswick et l’Alberta, ont toutes mis en
œuvre diverses re
´formes re
´glementaires, et le Manitoba s’est engage
´a
`e
´tablir un
registre des enseignants et un organisme de surveillance inde
´pendant. Certaines
provinces ont e
´galement introduit des ve
´rifications obligatoires des ante
´ce
´dents
criminels. Cet article pre
´sente un rapport d’e
´tape sur les initiatives re
´centes, analyse
les conseils d’experts fournis par les me
´dias et les tribunaux et se penche sur les
tendances actuelles en matie
`re de politique et de pratique de la discipline des
enseignants. Il identifie les « lacunes » juridiques dans les mode
`les actuels et de
´crit
trois options politiques potentielles pour affirmer les normes professionnelles,
surveiller la conduite des enseignants et e
´liminer cette proportion raisonnablement
faible mais toujours pre
´sente d’enseignants qui pre
´sentent un risque pour les e
´le
`ves.
1. INTRODUCTION
Winnipeg high school football coach and teacher Kelsey McKay is the most
recent public face of teacher misconduct in Canadian schools. Since April 2022,
*
Director, Schoolhouse Institute, Adjunct Professor of Education, Saint Mary’s
University, Halifax, Nova Scotia, and author of The State of the System: A Reality
Check on Canada’s Schools (Montreal: McGill-Queen’s University Press, 2020).
the veteran teacher, age 52, has been charged with 30 counts of sexual abuse
during his time at Vincent Massey Collegiate over a period of more than two
decades.
1
Ten former students, now adults, have come forward to police
reporting that, when they were in their teens, he had lured, harassed, and then
sexually assaulted them at his home. It was just the latest example of the hidden
truth and sad consequences of teacher misconduct in Manitoba
2
and elsewhere
from province-to-province across Canada.
3
Five Canadian provinces, British Columbia, Ontario, Saskatchewan,
Alberta, and New Brunswick, have all responded to teacher misconduct by
introducing a variety of professional discipline policy measures,
4
but Manitoba is
fairly typical of the remaining provinces and territories. Crimes of teacher
misconduct have remained (up until May 2023) ‘‘shrouded in mystery and not
centrally tracked,” which, according to Winnipeg Free Press investigative
1
‘‘Winnipeg high school football coach accused of sexual abuse charged with 6 new
offences”, CBC News Manitoba (14 October 2022), online: <https://www.cbc.ca/news/
canada/manitoba/kelsey-mckay-coach-teacher-sexual-abuse-new-charges-
1.6616535>.
2
Katrina Clarke, ‘‘Truth and hidden consequences”, Winnipeg Free Press (23 September
2022), online: <https://www.winnipegfreepress.com/breakingnews/2022/09/23/truth-
and-hidden-consequences>.
3
Sydney L. Robins, Protecting Our Students: A Review to Identify & Prevent Sexual
Misconduct in Ontario Schools, Toronto: Attorney General of Ontario, 2000 ‘‘Executive
Summary and Recommendations”; Janet French, ‘‘When teachers fail: Investigation
reveals cases of teacher misconduct”, Saskatoon StarPhoenix (27 June 2013) online
<https: //thestarphoenix.com/news/local-news/when-teachers-fail-investigation-re-
veals-cases-of-teacher-misconduct>; Paul W. Bennett and Karen Mitchell, Maintaining
‘‘Spotless Records”: Professional Standards, Teacher Misconduct and the Teaching
Profession, Atlantic Institute for Market Studies, Policy Research Paper (March 2014)
online: https://www.aims.ca/ site/media/aims/Bennett.Mitchell2014-Maintaining%20-
Spotless%20Records,%20Final.pdf; Melissa Mancini, ‘‘Discipline for teacher miscon-
duct often handled in secret, Marketplace finds”, CBC News (7 April 2016) online:
<https://www.cbc.ca/news/canada/marketplace-secret-discipline-teacher-misconduct-
1.3525438>; Natasha Cochran and Lynn Lemisko, ‘‘Conduct Unbecoming? Teacher
Professionalism, Ethical Codes, and Shifting Social Expectations” (2021) 26:2 In
Education 51 online: <https://journals.uregina.ca/ineducation /article/view/476/1087;
Meghan Grant, ‘‘Assaulted ‘almost every day,’ says former student as 20 more detail
teacher Michael Gregory’s alleged abuse”, CBC News Calgary (19 January 2022) online:
<https://www.cbc.ca/news/canada/calgary/michael-gregory-teacher-calagry-sexual-
abuse-lawsuit-affidavits-1.6320828>.
4
Bennett and Mitchell, above note 3 at 7-8; Cochran and Lemisko, above note 3 at 52-53;
Sheehan Desjardins, ‘‘Abusive teachers could be ‘falling through the gaps’ in current
system: Alberta education minister”, CBC News Edmonton (26 January 2022) online:
<https://www.cbc.ca/news/canada/edmonton/teacher-disciplinary-database-
1.6325597>; Government of New Brunswick, Education and Early Childhood
Development, Registry of Suspended and Revoked New Brunswick Teachers’ Certificates
online: <https:// www2.gnb.ca/content/gnb/en/departments/education/k12/content/
registry.html>.
98 EDUCATION AND LAW JOURNAL [32]
reporting, creates ‘‘an incomplete picture of how educators abuse students or act
inappropriately” inside and outside of school.
5
Leading child protection advocates and education researchers tend to agree
that the relative absence of data, the haphazard approach to investigations, and
the secrecy of proceedings leave students vulnerable to harm.
6
Contemporary
professional codes of ethics tend to support teacher freedom and autonomy,
while lacking ‘‘specificity” as to what constitutes ‘‘conduct unbecoming” a
teacher.
7
Those deficiencies also impede school administration from identifying
and tackling underlying systemic issues, which allows inappropriate and illicit
behaviour to persist undetected or unresolved for years.
A national watchdog organization, the Winnipeg-based Canadian Centre for
Child Protection, is slowly changing public opinion and altering the political
calculations.
8
Existing systems in Manitoba and, by extension, a majority of
Canadian jurisdictions, are, in the words of CCCP’s education director Noni
Classen, not only ‘‘unacceptable” but ripe for corrective legislative and
regulatory action.
9
Education researchers are also re-examining existing codes
of professional conduct, the ambiguity of current policy guidelines, and the
uneven patchwork of ethics curricula in ITE programs.
10
5
Clarke, above note 2.
6
French, above note 3; Andrew Wildes, ‘‘Manitoba’s rules need change, woman says after
teacher faced consequences for inappropriate relationship”, CBC News Manitoba (18
May 18 2022), online: <https://www.cbc.ca/news/canada/manitoba/winnipeg-student-
teacher-inappropriate-relationship-1.6450596#:~:text=Olivia%20Wilson%20-
says%20she%20was, High%20School%20and%20Vincent%20Massey>.
7
Cochran and Lemisko, above note 3 at 52-53 and 67-69.
8
Canadian Centre for Child Protection, Child Sexual Abuse by K-12 School Personnel in
Canada (Winnipeg, MB: CCCP, June 2018), online: <https://protectchildren.ca/en/
resources-research/child-sexual-abuse-by-school-personnel-in-canada-report/>.
9
Clarke, above note 2; Katrina Clarke, ‘‘Alarm sounded over school divisions’ silence”,
Winnipeg Free Press (26 September 2022), online: <https://www.winnipegfreepress
.com/ breakingnews/2022/09/26/alarm-sounded-over-school-divisions-silence>; Ka-
trina Clarke, ‘‘Lack of transparency in Manitoba teacher dispute ‘disturbing’”,
Winnipeg Free Press (4 October 2022).
10
A. R. Monteiro, ‘‘Sociology of the Professions” in A. R. Monteiro, ed., The Teaching
Profession: Present and Future (New York: Springer Cham, 2015) 47; M. Schwimmer
and B. Maxwell, ‘‘Codes of Ethics and Teachers’ Professional Autonomy” (2017) 12:2
Ethics and Education 141, online: <https://doi.org/10.1080/17449642.2017.1287495>;
Elizabeth Campbell, ‘‘Professional Ethics in Teaching: Towards the Development of a
Code of Practice” (2000) 30:2 Cambridge J. Educ. 203; Elizabeth Campbell, ‘‘Ethical
Teaching and the Social Justice Distraction” in H. Sockett and R. Boostrom, eds., A
Moral Critique of Contemporary Education, NSSE Yearbook, Vol. 112, No. 1 (New
York: Teachers College Record, 2013) 216, online: <https://journals.sagepub.com/doi/
10.1177/ 016146811311501313>; Elizabeth Campbell, ‘‘Foreword” in Bruce Maxwell,
Nick Tanchuk, and Carly Scramstad, eds. Professional Ethics Education and Law for
Canadian Teachers (Ottawa: Canadian Association for Teachers of Education, 2018);
and Cochran and Lemisko, above note 3 at 63-69.
LIFTING THE VEIL AND CLOSING THE LOOPHOLES 99
2. HIDDEN CHILD EXPLOITATION IN SCHOOLS — AN ANALYSIS
OF THE MOUNTING EVIDENCE
Sexual abuse in schools is the lightning rod that is driving most recent
teacher discipline and professional standards reforms. The latest study published
by the Canadian Centre for Child Protection in November 2022 found, between
2017 and 2021, 548 alleged victims came forward to report sex abuse in schools.
It documented that 252 current or former school personnel — working in
Canadian elementary and high schools — committed, or were accused of
committing, offences of a sexual nature against at least 548 children. The
aggregate data, cobbled together from a review of disciplinary records, media
sources, and criminal case law, showed an increase in abuse reports since the first
report released five years ago. This new study also found another 38 current or
former school personnel were criminally charged for stand-alone child
pornography-related offences.
11
Prying loose data on teacher misconduct cases, especially those involving
sexual abuse of minors, is fraught with challenges and obstacles, so the reported
information is, at best, partial and, in many cases, fragmentary. The recent
Winnipeg Free Press investigation conducted by Katrina Clarke is a case in point.
The filing of some 70 Freedom of Information and Protection of Privacy
(‘‘FOIPOP”) requests, including one to each of 37 school districts, netted little,
but eventually the Manitoba Education Department revealed some data. Out of
some 16,000 active educators in Manitoba, the Department disclosed that 31
teachers had been disciplined between 2016 and May 1, 2022, a period five and
one-half years.
12
Although the names of the teachers were kept confidential, Manitoba
Education provided a breakdown by year and by identified offence. Of those 31
cases, 20 teachers had their teaching licences cancelled by the province, two had
their licences suspended, one was suspended indefinitely, and eight ‘‘voluntarily
surrendered” their licences pending a hearing by the province’s certificate review
committee. About half of the cases were related to criminal matters, including
charges of sexual assault, luring, exploitation, and possession of child
pornography. The other half were classified as ‘‘professional misconduct”
without any further details.
13
Manitoba Education provided no information
about the threshold level for determining the severity of the cases or the time it
took to secure a decision on the cases.
11
Canadian Centre for Child Protection, Child Sexual Abuse and Victimization by K-12
School Personnel in Canada (Winnipeg, MB: CCCP, November 2022), online: <https://
www. protect children.ca/pdfs/C3P_CSAinSchoolsReport2022_en.pdf> at 3-4.
12
Clarke, above note 2.
13
Ibid.
100 EDUCATION AND LAW JOURNAL [32]
Figure 1: Investigative Report Findings — Teacher Misconduct in Manitoba,
2016-2022
LIFTING THE VEIL AND CLOSING THE LOOPHOLES 101
Source: Katrina Clarke, Teacher Misconduct Series, Winnipeg Free Press,
September-October, 2022. Reprinted with the permission of the author and the
Winnipeg Free Press.
An earlier national investigation, conducted in 2015-16 by CBC-TV’s
‘‘Marketplace” yielded some problematic data on teacher license revocations.
Some 374 teacher certificates were revoked between 2005 and 2015 — an average
of 1.7 revocations for every 100 teachers.
14
Every province and territory had its
own disciplinary process, including for investigations and voiding certificates,
and there was no consistency based upon relative numbers of teachers in each
jurisdiction. One province without any public disclosure, Nova Scotia, reportedly
revoked licenses at a greater rate than those with more public processes. For
every 1,000 teachers, the average rates of revocation were Nova Scotia 4.2, P.E.I.
3.3, British Columbia 2.5, N.L. 2.3, Ontario 1.6, New Brunswick 1.5,
Saskatchewan 1.4, Alberta 0.7, and Manitoba 0.7. Neither Nova Scotia’s
certification registrar, Paul Cantelo, nor Mount Saint Vincent University
professor Robert Berard was able to explain the differences in rates between
Nova Scotia and other jurisdictions.
15
14
Melissa Mancini, above note 3; Jack Julian, ‘‘Nova Scotia revokes teacher licences at
high rate—secretly”, CBC News Nova Scotia (8 April 2016), online: <https://
www.cbc.ca/news/ canada/nova-scotia/marketplace-teachers-discipline-education-
1.3525956>.
15
Julian, ibid.
102 EDUCATION AND LAW JOURNAL [32]
Figure 2: Teacher Certificates Revoked, 2005-2015 — by Province, CBC
News, April 2016
Source: CBC News Investigates, CBC News Graphics, in Jack Julian, ‘‘Nova
Scotia revokes teacher licences at high rate—secretly”, CBC News Nova Scotia (8
April 2016). Reprinted with permission.
An April 2015 FOIPOP request by CBC Nova Scotia revealed that 65
teachers had their certificates cancelled or were suspended from 2000 to 2014.
Over that 15 year period, approximately 70 per cent of Nova Scotia teacher
disciple cases involved offences and allegations that were sexual in nature,
16
including sexual assault, sexual exploitation, sexual impropriety, sexual
relationships with students, inappropriate relationships, child luring, and child
pornography. The Nova Scotia Department of Education and Early Childhood
Development would not reveal the details of the cases, citing provincial privacy
legislation. No further details were provided on 18 other cases in which action
was taken by the registrar, except to say the cases ‘‘involved a diverse range of
misconduct.”
17
One of the provinces with the most lax approach, New Brunswick, remained
impervious to repeated attempts to secure improvements in teacher discipline and
oversight. In 2015, it reported the lowest rate of revoking licenses, but resisted
16
Blair Rhodes, ‘‘Nova Scotia has investigated 62 teachers for inappropriate conduct in 15
years”, CBC News Nova Scotia (15 April 2015), online: <https://www.cbc.ca/news/
canada/nova-scotia/nova-scotia-has-investigated-62-teachers-for-inappropriate-con-
duct-in-15-years-1.3033008#:~:text=In%20its%20figures%2C%20the%20Depart-
ment,ban%20from%20the%20original%20trial>.
17
Ibid.
LIFTING THE VEIL AND CLOSING THE LOOPHOLES 103
many attempts to secure more public disclosure and tighter regulation.
Fredericton parent Gina Merrill was featured in the April 2016 ‘‘Marketplace”
episode registering a complaint about abusive treatment received by her
daughter, especially after it was learned that the teacher-perpetrator had
simply been transferred to a school on the other side of town.
18
From 2016 to
2017, after the show, the number of cases in which New Brunswick teachers were
found to have abused students or that revealed misconduct toward students
nearly tripled, according to the Fredericton Daily Gleaner.
19
Six years after a
teacher bullied her daughter, that same Fredericton mother, Gina Merrill, told
the Gleaner that she was ‘‘disgusted” to know teachers are still secretly shuffled
to other schools after districts decide they have committed misconduct.
20
It was
subsequently revealed that New Brunswick’s school districts spent some $813,043
on hidden proceedings investigating teachers accused of misconduct or abuse of
students in 2016 and 2017.
21
The eventual response to the growing scrutiny of teacher misconduct cases in
the Maritimes was to adopt a limited measure, extending the reach of vulnerable-
public-sector reference checks into the school system. In December 2018, Nova
Scotia’s Minister of Education announced the province’s teachers would be
required to undergo a mandatory criminal record check every five years and
proactively disclose whether they were the subject of any criminal
investigations.
22
Whether that measure is sufficient or necessarily effective has
been called into question.
23
Facing calls for an independent teacher regulation body, and after a change
in government, New Brunswick belatedly moved to introduce criminal reference
checks. Teachers are now required, once every five years, to comply with criminal
reference checks. Under Alberta’s more far-reaching 2021 Students First Act,
24
a
similar criminal record check was introduced to ensure ‘‘safety for students,”
‘‘confidence for parents,” and ‘‘accountability for teachers.”
25
In July of 2021,
18
Mancini, above note 3; ‘‘Teacher Discipline”, CBC-TV, ‘‘Marketplace” (6 April 2016),
online: <https://www.youtube.com/watch?v=XMWUuYGqu18>.
19
Katrina Clarke, ‘‘Teacher Discipline Series”, The Daily Gleaner (8 July 2018; 18 July
2018; 19 July 2018; 29 July 29 2018), online: <https://katrinaclarkejourno.wordpress.-
com/2018/07/>.
20
Katrina Clarke, ‘‘Costs of Teacher Discipline Series”, The Daily Gleaner (3 October
2018; 5 October 2018), online: <https://katrinaclarkejourno.wordpress.com/2018/10/
>.
21
Ibid.
22
Elizabeth McSheffrey, ‘‘Proposed law change could force N.S. school staff to get
criminal record checks every 5 years”, Global News Halifax (12 December 2018), online:
<https://globalnews.ca/news/4756305/nova-scotia-school-staff-proposed-criminal-re-
cord-checks/>.
23
Julia Rheaume and Heather Fansher, ‘‘Criminal Reference Checks: A Case of Creep?”
CAPSLE Newsletter (March 2023).
24
Education Statutes (Students First) Amendment Act, 2021, S.A. 2021, c. 19 [Students
First Act].
104 EDUCATION AND LAW JOURNAL [32]
New Brunswick amended the Education Act
26
to provide for the creation of a
Registry of Suspended and Revoked New Brunswick Teachers’ Certificates. Only
suspensions and revocations related to misconduct occurring after July 1, 2021,
are entered into the registry.
27
3. TEACHER PROFESSIONALISM AND REGULATION REGIMES
ACROSS CANADA
The vast majority of Canadian K-12 teachers adhere to professional
standards and daily demonstrate conduct befitting the reputation of their
profession. The incidence of misconduct remains relatively small given the sheer
number of teachers in Canada’s ten provinces and three territories. As the public
face of the school system, teachers also face regular scrutiny from students,
parents, and members of the public. Although some teachers violate professional
norms and engage in misconduct, it is important to bear in mind that criminal
allegations against so-called ‘‘rule-makers” are sometimes unfounded and
‘‘conducive to confabulation” in a dynamic school environment.
28
Recent
surveys have shown, however, that the incidence of teacher misconduct is
sufficiently frequent and serious to warrant a more coherent policy response.
What Ontario Justice Sydney L. Robins wrote in his landmark 2000 report
remains true today: ‘‘If our schools are truly to be safe and nurturing places for
children to learn and grow, the problem must be actively addressed, and every
effort made to protect our students.”
29
Teachers in Canada’s provincial school systems still claim to be members of
the ‘‘teaching profession.” Today the question ‘‘Is teaching a profession?” is all
too rarely asked and discussed in the public domain.
30
Almost three decades ago,
Robert Runte
´, an associate professor of education at the University of
25
Government of Alberta, Bill 85: Education (Students First) Statutes Amendment Act,
2021 (16 November 2021), online: <https://www.alberta.ca/assets/documents/edc-bill-
85-students-first-act-2021-fact-sheet.pdf>.
26
S.N.B. 1997, c. E-1.12, s. 31.01(1).
27
Government of New Brunswick, Education and Early Childhood Development,
Registry of Suspended and Revoked New Brunswick Teachers’ Certificates online:
<https://www2.gnb.ca/content/gnb/en/departments/education/k12/content/regis-
try.html>.
28
Brian A. Vail, ‘‘Mischief and Mayhem in the Schoolhouse: Allegations of Criminal
Misconduct in the School Environment.” Reprinted in ‘‘Teacher Appraisals and
Dismissals,” Lorman Education Services (2010) at 55-56, 89-91.
29
Ontario College of Teachers, ‘‘Sexual Misconduct and the Teaching Profession: The
College Prepares its Response to the Robins Report”, Professionally Speaking (March
2001), online: <https://professionallyspeaking.oct.ca/march_2001/sexlmiscon&-
teach.htm> citing Robins, above note 3.
30
Monteiro, above note 10; Dennis Kendel, For the Sake of Students: A Report Prepared by
Dr. Dennis Kendel on Current and Future Teacher Regulation in the Province of
Saskatchewan, A Report for the Saskatchewan Ministry of Education (September 2013).
LIFTING THE VEIL AND CLOSING THE LOOPHOLES 105
Lethbridge, posed that very question and came up with a surprising answer.
Surveying the changing nature of professionalism, he pointed out that the
dominant pattern had changed over the past hundred years from that of ‘‘the free
practitioner in a market for services” to that of ‘‘a salaried specialist in a large
organization.” By pretending that the old model still exists, he added, we are
‘‘blinding ourselves to how things really are” in the teaching field.
31
Within the modern bureaucratic state, teaching and the organization of the
teacher force have undergone transformation increasingly driven by teacher
unionism and provincial contracts, particularly since the 1960s.
32
With the rise of
the university-educated class, professions such as teaching are losing their
‘‘monopoly over particular bodies of knowledge,” and consequently their claim
to ‘‘special status as professions,” and also becoming ‘‘knowledge workers” faced
with staff reductions, limited mobility, isolation from policy-making, and
declining intrinsic rewards.
33
Teachers’ associations gradually accepted that
teaching could not achieve the prestige and status of a profession such as
medicine. Support for professionalism proved ‘‘fragile and vulnerable” and
constrained by union militants who presented an ‘‘intractable accountability
problem.”
34
Today’s teachers, organized school-to-school in union locals, might
better be described as what Amitai Etzioni once termed a ‘‘semi-profession.”
35
What is notably missing in most public debates is vocal teachers advocating for a
full-fledged profession recognized as having publicly accepted ‘‘self-regulatory”
powers.
36
The critical juncture in the transformation, it now appears, was the late-
1980s to mid-1990s, when provincial governments emerged committed to
broadening public accountability and public-sector management reform,
dubbed ‘‘neo-liberalism” by academic critics.
37
Two of Canada’s top
performing provinces, Ontario and Alberta, proposed to the teachers’
associations that they could become self-governing if the teachers agreed to be
represented by two different organizations — a professional college with
compulsory membership and a voluntary association responsible for collective
bargaining and working conditions. The teachers rejected the proposal to create
31
Robert Runte´ , ‘‘Is Teaching a Profession?” Reprinted from Gerald Taylor and Robert
Runte´ , eds.,Thinking about Teaching: An Introduction (Toronto: Harcourt Brace, 1994)
at 1-2.
32
Paul W. Bennett, The State of the System: A Reality Check on Canada’s Schools
(Montreal: McGill-Queen’s University Press, 2020) at 30-31.
33
Runte´ , above note 30 at 6-8.
34
Gary Sykes, ‘‘Reckoning with the Spectre” (1987) 16:6 Educ. Researcher 19; Alastair R.
L. Glegg, ‘‘Five Years of Teacher Self-governance: The British Columbia College of
Teachers” (1992) 7:2 J. Educ. Admin. & Foundations 46 at 47, 50.
35
Amitai Etzioni, The Semi-Professions and Their Organization: Teachers, Nurses, Social
Workers (New York: Free Press 1969).
36
Kendel, above note 29; Bennett and Mitchell, above note 3 at 9-10.
37
Bennett, above note 32 at 28, 57-60.
106 EDUCATION AND LAW JOURNAL [32]
the two entities. In 1987, British Columbia took the plunge over the objections of
the British Columbia Teachers Federation (‘‘BCTF”) and introduced legislation
to establish a College of Teachers with powers to certify, discipline, and
otherwise regulate teachers.
38
The government of Ontario followed suit,
adopting similar legislation and creating the Ontario College of Teachers
(‘‘OCT”) in 1997.
39
The College of Teachers in British Columbia did not succeed in disrupting
the status quo. From its inception, the body was essentially controlled by the
BCTF and actually perpetuated the common practice of ‘‘cleansing” the records
of bad teachers and ‘‘passing the trash” from one school to another.
40
In British
Columbia, the existence of such practices was well documented in a 2010 report
on the BCCT by former deputy education minister Don Avison. In that report,
he wrote that a former president of the Abbotsford District Teachers’
Association and member of the BCCT Discipline Committee was simply urged
to ‘‘clean up” his laptop when it was discovered to contain images of child
pornography. He also revealed that the BCCT had restored the teaching
certificate of a man convicted of sexually assaulting students and had granted
certificates to a man sentenced to six years in prison for narcotics trafficking and
to a former lawyer found guilty of forging court documents.
41
The whitewashing of teacher discipline records has long been regular fodder
for chatter inside education circles. It became more widely known on the West
Coast after a series of sensational stories stemming from The Vancouver Sun
education reporter Janet Steffenhagen’s April 2011 revelations that the BCCT
had failed to discipline teachers for infractions ranging from drinking alcohol in
the classroom to downloading child pornography at work.
42
Following the BC College of Teachers controversy, public conversations
about the state of teaching as a profession disappeared and teachers’ federations
continued to resist all attempts to put ‘‘professional standards” and ‘‘teacher
quality” on the Canadian education policy agenda. A survey of Canada’s
provincial school systems shows that variation in receptivity to engaging in such
38
Glegg, above note 34.
39
R. D. Gidney, From Hope to Harris: The Reshaping of Ontario’s Schools (Toronto:
University of Toronto Press, 1999); Bennett and Mitchell, above note 35.
40
Wetcoaster, ‘‘BCTF Influence — Whitewashes Teachers’ Disciplinary Records”,
Wetcoaster Blog, Aggregation of News Reports (10 July 2011); Janet Steffenhagen,
‘‘B.C. College of Teachers is no more”, Vancouver Sun (9 January 2012), online:
<https://vancouversun.com/ news/staff-blogs/b-c-college-of-teachers-is-no-more>.
41
Donald Avison, A College Divided: Report of the Fact Finder on the BC College of
Teachers (October 2010), online: <http://www.bced.gov.bc.ca/pubs/2010_factfinder_-
report_bcct.pdf> at 23-24, 30.
42
Janet Steffenhagen, ‘‘B.C. College of Teachers keeps some bad records spotless”, The
Vancouver Sun (5 July 2011); Katie Hyslop, ‘‘The Province cartoon compares teachers to
Hitler”, The Hook Blog, The Tyee (6 July 2011), online: <http://thetyee.ca/Blogs/
TheHook/ Education/2011/07/06/The-Province-cartoon-comparesteachers-Hitler/>;
Glegg, above note 33.
LIFTING THE VEIL AND CLOSING THE LOOPHOLES 107
public discussions is oddly related to whether teachers belong to a teachers’
federation or a teachers’ union. These organizations, such as the Nova Scotia
Teachers Union (NSTU), operate with an internal, members-only code of ethics
and are explicit in promoting teachers’ rights, with a whole range of protection
services.
43
Most Canadian teacher ethical codes are ‘‘aspirational rather than
regulatory” and, until recently, few provided ‘‘explicit guidelines” for
professional behaviour or competence.
44
Unlike in Australia, Britain, and the
United States, Canadian provincial teaching profession law and regulations
focus exclusively on processes for weeding out teachers in cases of professional
misconduct and sexual abuse.
45
Given the relative absence of teaching
effectiveness standards, cases of incompetence are rarely brought forward.
46
Teacher seniority remains the only real criterion for determining staff reductions,
which strictly adhere to last in first out regulations and protocols (Roher, 2013).
More recently, Alberta joined the ranks of provinces with more robust
teacher regulatory regimes. In the wake of a highly publicized 2019 case of
teacher sexual abuse in Calgary, Alberta Education Minister Adriana LaGrange
made it her mission to make classrooms safer for students and to close the
loopholes in regulatory oversight.
47
In the process, Minister LaGrange removed
from the teachers’ union, the Alberta Teachers’ Association (‘‘ATA”), the ‘‘sole
responsibility for overseeing complaints of alleged unprofessional conduct and
professional incompetence” and determining ‘‘a teacher’s suitability to hold a
teaching certificate.”
48
Under the Students First Act,
49
Alberta introduced a new
teaching profession regulation model that is overseen by an Alberta Teaching
43
See Nova Scotia Teachers Union, ‘‘Nova Scotia Teachers Union Privacy Principles”
(2014), NSTU Code of Ethics (2013-2014), NSTU Teachers Rights, and NSTU
‘‘Benefits of Membership” cited in Bennett and Mitchell, above note 3 at 16-18.
44
Cochran and Lemisko, above note 3 at 69; Jerome G. Delaney, Education Law for
Teachers and School Administrators (Toronto: Brush Education, 2022): see chapter 16,
‘‘Teacher Misconduct.”
45
Vail, above note 28.
46
Christopher Sach-Anderson, ‘‘Incompetence,” a review paper by the Manager,
Investigations, Ontario College of Teachers (2003), private collection at 11-12; Sachin
Maharaj, Effective Management of Human Capital in Schools: Recommendations to
Strengthen the Teaching Profession, Canadian Council of Chief Executives (January
2014) online: <https://the business council.ca/app/uploads/2014/01/Effective-Manage-
ment-of-Human-Capital-in-Schools-January-2014.pdf> at 8.
47
Desjardins, above note 4.
48
Government of Alberta, Reforming Teaching Profession Discipline, online <https://
www.alberta.ca /improving-teacher-discipline.aspx>; Education (Reforming Teacher
Profession Discipline) Amendment Act, 2022, S.A. 2022, c. 7 (Bill 15, assented to 2022-05-
31); and Government of Alberta, Reforming Teacher Profession Discipline Processes (31
March 2022), online: <https://www.alberta.ca/reforming-teacher-profession-disci-
pline-processes.aspx>. These web sites provide comprehensive information regarding
Alberta’s legislative responses in 2021-2022 to the teacher discipline issue via the Students
First Act, above note 24, the Education (Reforming Teacher Profession Discipline)
108 EDUCATION AND LAW JOURNAL [32]
Profession Commissioner, bringing that province more in line with Ontario and
British Columbia, where arm’s length organizations oversee disciplinary
matters.
50
Setting, preserving, and enforcing professional standards still fall between
the stools in most provinces and territories. Where no provincial regulatory body
exists, professional discipline falls to regional school districts and is narrowly
circumscribed by the teachers’ organizations, particularly in Nova Scotia and the
other Maritime provinces. Out of the ten provinces, only four — Alberta, British
Columbia, Ontario, and Saskatchewan — have entrusted teacher quality
assurance to government entities independent of the teacher federations and
unions.
51
Que
´bec gives authority to the Minister and the Department of
Education to investigate and resolve individual professional misconduct matters
and any formal complaints. Even before Saskatchewan’s 2014 teacher registry
reform, its teacher federations were more open, public, and transparent in their
management of professional standards.
52
The education departments in the six other provinces take responsibility for
teacher certification and licensing regulations but depend heavily upon the
teaching organizations to maintain and enforce professional ethics and
standards. Nova Scotia, Prince Edward Island, New Brunswick, and
Newfoundland and Labrador maintain leaner provincial offices, whose role is
limited to the licensing of teachers.
53
Since the closure of the BCCT, the British
Columbia Ministry of Education, through its Teacher Regulatory Branch, has
been very active in its public reporting and disclosure of individual cases that
result in teacher dismissals.
54
If Manitoba’s new teacher regulation legislation is
enacted, it will likely tip the balance in favour of more rigorous professional
oversight in Canada.
55
Amendment Act, 2022 (see above in this note), and the creation of new disciplinary
processes.
49
Above note 24.
50
Government of Alberta, Reforming Teacher Profession Discipline, above note 48;
Students First Act, above note 24.
51
Government of Prince Edward Island, ‘‘Contact Information for Registrars in the Other
Canadian Jurisdictions”, (n.d.), online: <http://www.gov.pe.ca/forms/pdf/1776.pdf>;
Bennett and Mitchell, above note 3 at 12-13; Government of Alberta, Reforming Teacher
Profession Discipline, above note 48.
52
Saskatchewan Teachers’ Federation, ‘‘Professional Discipline Process” (2014) cited in
Bennett and Mitchell, above note 3 at 22. See also The Registered Teachers Act, S.S. 2015,
c. 15.1.
53
Bennett and Mitchell, above note 3 at 13.
54
Elaine O’Connor, ‘‘Alcohol and Pornography Land Teachers in Hot Water with
Disciplinary Branch”, The Province (1 November 2013).
55
Katrina Clarke, ‘‘Top marks for Manitoba’s new approach to probing teacher
misconduct”, Winnipeg Free Press (16 November 2022), online: <https://www.winni-
LIFTING THE VEIL AND CLOSING THE LOOPHOLES 109
4. LOOPHOLES IN THE SYSTEM OF TEACHER REGULATION
Provincial education ministers, child protection advocates, and education
researchers are beginning to come together and find consensus on the need for
more robust teacher discipline policy and practice. In announcing Alberta’s
Students First reforms, Education Minister Adriana LaGrange pointed out that
the regulatory system from province-to-province has ‘‘gaps” that allow ‘‘bad
apples” to escape detection and continue to teach in classrooms. ‘‘We want to
make sure that our parents and our children that attend our schools know that
they’re safe and that we’re looking out for their best interest,” she told CBC
News Edmonton.
56
‘‘When we have these unprofessional conduct situations,”
she added, ‘‘some of them are heartbreaking.” Despite the reform efforts,
loopholes remain, some of which are examined below.
(a) Web of Secrecy and Code of Silence
Several well-publicized cases of teachers’ abuse of students demonstrate that
perpetrators continue with exploitive relationships long after the abuse has been
detected by senior students and teaching colleagues. Successive reports document
a steady stream of cases involving gross misconduct that either fell between the
cracks or continued after minimal consequences were meted out by oversight
bodies.
57
Worst-case scenarios like that of Calgary junior high school teacher Michael
Gregory are all too common. Twenty or more of his students reported being
sexually assaulted numerous times between 1988 and 2006. Parents complained
to other teachers, the school principal, and the guidance counsellor, but there
were no consequences. Finally, after some fifteen years, the ATA revoked
Gregory’s licence after admitting he had ‘‘abused” children; the ATA tribunal
had found Gregory had ‘‘participated in dangerous, demeaning and disrespectful
acts with his students.”
58
It exploded as a public issue only when he was charged
in February 2021 with 17 sexual offences and then took his own life.
59
This case
has eerie parallels with the notorious ‘‘cover-up” of a horrendous sexual abuse
pegfreepress.com /breakingnews/2022/11/15/top-marks-for-manitobas-new-approach-
to-probing-teacher-misconduct>.
56
Desjardins, above note 4.
57
Avison, above note 41; Kevin Donovan, ‘‘Bad teachers: Ontario’s secret list”, Toronto
Star (29 September 2011), online: <https://www.thestar.com/news/canada/2011/09/29/
bad_teachers _ontarios_secret_list.html>; Bennett and Mitchell, above note 3;
Mancini, above note 3; Vjosa Isai and Victoria Gibson, ‘‘‘Culture of silence’ in
education a roadblock to reporting colleagues”, Toronto Star (9 April 2018), online:
<https://www.thestar.com/news/gta/2018/04/06/culture-of-silence-in-education-a-
roadblock-to-reporting-colleagues.html>; Canadian Centre for Child Protection,
above notes 8 and 11.
58
Grant, above note 3.
59
Ibid. See also Omar Mouallem, ‘‘A Monster in the Classroom”, Maclean’s (15 November
2022), online: <https://macleans.ca/longforms/monster-classroom-calgary-abuse/>.
110 EDUCATION AND LAW JOURNAL [32]
case that recently ignited controversy at Babylon High School in Long Island,
New York.
60
(b) Teachers’ Rights and Union Protection
Current teacher discipline policy and practice raise concerns about the actual
role of teacher unions in the process. In most provinces, teachers’ federations and
unions attempt to perform two roles that, at times, are mutually contradictory.
Teachers look to their unions for legal assistance in responding to criminal
charges and civil claims, some of which are vindictive, without merit, and
injurious to the teachers’ and the entire profession’s reputations.
61
In certain
provinces, such as Manitoba, Nova Scotia, and New Brunswick, teachers’ unions
not only have a large say in responding to complaints, but also bear the
responsibility as the teachers’ bargaining agent responsible for protecting the
interests of its members. It has been a long-standing claim that these ‘‘opposing
interests do not serve the best interests of students or the teaching profession.”
62
The clear contradictions are revealed in a series of cases covered by the
popular media, most notably the 2012-2013 Nova Scotia case of South Shore
Regional School Board v. Speight.
63
On June 13, 2013, the South Shore Regional
School Board (‘‘SSRSB” or ‘‘Board”) finally won its prolonged battle to keep
Peter Speight out of the classroom. In 2009, the Board had dismissed Speight a
few weeks after he pleaded guilty to ‘‘willfully engaging in indecent acts.”
64
At
the time, Speight had been teaching for fewer than four years, mostly on term
contracts, and he had been a permanent teacher for only eight months. He was
apprehended for luring women to his car, where he exposed himself and
masturbated.
65
His actions clearly violated the NSTU’s internal Code of Ethics,
but, as a union member, he was entitled to legal representation.
66
Without clear,
60
Ashley Collman, ‘‘A flurry of sex-abuse allegations is rocking a Long Island high school
where 2 accusers say lines between teachers and students were blurred in a ‘cult-like’
environment”, Insider (25 November 2021), online: <https://www.insider.com/baby-
lon-high-school-sex-abuse-scandal-accusers-open-up-reckoning-2021-11>; Office of
the New York State Attorney General, Media Release, ‘‘Attorney General James
Launches Investigation into Babylon School District Over Allegations of Sexual Abuse
and Misconduct” (23 November 2021), online: <https://ag.ny.gov/press-release/2021/
attorney-general-james-launches-investigation-babylon-school-district-over#:~:text=-
November%2023%2C%202021&text=My%20office %20is%20launching%20an,-
to%20a%20safe%20learning%20environment.%E2%80%9D>.
61
Bennett and Mitchell, above note 3 at 16-20.
62
Government of Alberta, Bill 15: The Education (Reforming Teacher Profession
Discipline) Amendment Act, 2022, online: https://www.alberta.ca/assets/documents/
edc-bill-15-reforming-teacher-profession-discipline-fact-sheet.pdf .
63
2012 NSSC 417, 2012 CarswellNS 855 (N.S. S.C.) [Speight].
64
See Criminal Code, R.S.C. 1985, C-46, s. 173(1).
65
Brian DuBreuil, ‘‘The True Cost of Firing Peter Speight”, CBC News Nova Scotia (13
December 2012), online: <https://www.cbc.ca/ns/beyondtheheadlines/2012/12/the-
true-cost-of-firing-peter-speight.html>.
LIFTING THE VEIL AND CLOSING THE LOOPHOLES 111
publicly proclaimed professional standards of discipline, the case for dismissal
was weakened and the matter devolved into a protracted court battle. After the
Board lost on appeal and the teacher was reinstated, the parents revolted. A
‘‘restorative justice” program sparked fierce community resistance. Resolving the
matter not only took four years but cost Nova Scotia taxpayers $160,000 in back
pay in addition to thousands of dollars more in legal costs to get Speight to give
up his legal actions to recover both his teacher’s certificate and his job. Finally, in
December of 2013, Minister of Education Ramona Jennex intervened, on the day
of a SSRSB meeting, agreeing to cover the mounting legal costs — which were in
excess of $250,000 — to make the problem go away.
67
This is now the test case
for how opposing interests sow unresolved divisions.
(c) Service Provider Capture and Conflict of Interest
Regulatory regimes may be compromised when service providers gain
influence and come to exercise a measure of control over the regulatory bodies.
Professional codes of conduct become more ‘‘aspirational” and less ‘‘regulatory”
with little ‘‘specificity” on the matter of teacher conduct or competence.
68
This is
a fairly common occurrence in K-12 education in which teacher unions uphold
teachers’ rights and act as the bargaining agents for teachers while being the de
facto custodians of professional standards. Establishing a College of Teachers
tests that arrangement by introducing a new body to nurture and develop the
professional standards, values and ethics honouring the responsibilities inherent
in being a full-fledged ‘‘self-governing profession.” Since the 1980s, provincial
unions in British Columbia and Ontario have, at times, sought to control and
limit the purview of their self-governing bodies.
69
Public concerns over the independence and effectiveness of the British
Columbia College of Teachers became a major educational issue from 2009 to
2011, leading to the abandonment of the whole model. In British Columbia, the
BCTF succeeded in ‘‘packing” the board and councils of the BCCT and,
according to the 2010 Avison report, that compromised the body’s ability to
mete out discipline, even to members of the BCCT Discipline Committee. It may
never have come to light if not for The Vancouver Sun reporter Janet
Steffenhagen’s April 2011 articles revealing that the BCCT had failed to
discipline teachers for infractions ranging from drinking alcohol in the classroom
to downloading child pornography at work.
70
66
Bennett and Mitchell, above note 3 at 11-12.
67
DuBreuil, above note 65; Bennett and Mitchell, above note 3.
68
Cochran and Lemisko, above note 3 at 69.
69
Bennett and Mitchell, above note 3 at 19; Alastair R. L. Glegg, ‘‘The British Columbia
College of Teachers: An Obituary” (2013) 25:2 Hist. Stud. in Educ. 45.
70
Steffenhagen, above notes 42 and 40; Hyslop, above note 42; O’Connor, above note 54;
Glegg, above note 69.
112 EDUCATION AND LAW JOURNAL [32]
(d) Delay in Disciplinary Decisions
Getting a decision out of teacher regulatory bodies, whatever their structure
and organization, takes far too long, according to the published records of
disciplinary bodies. A months-long CBC-TV ‘‘Marketplace” investigation during
2015-2016 into how provinces handle teacher discipline found that decisions may
take years, in addition to being conducted mostly in secret and most often
resulting in minimal consequences. Surveying some 150 cases before the OCT
over a two-year period, the ‘‘Marketplace” research team found that the average
time it took to reach a decision was three years and 11 months.
71
The case of Oakville elementary teacher Gavin Bradford, highlighted by
‘‘Marketplace,” was fairly typical of the duration of the process. After cultivating
an MSN Messenger online relationship with C, a 12-year-old girl, Bradford
proceeded to do the same with some 20 other pre-teen and teen-aged girls. When
C’s mother brought a printout of the conversations to the school’s principal, the
teacher was removed immediately from the classroom. While the OCT was
investigating, Bradford moved to Scotland and taught for two years in the
United Kingdom. It took the OCT nearly five years to revoke his teaching
certificate after he was found to be sending inappropriate messages to girls in his
classes. That lag enabled the perpetrator to teach elsewhere while waiting for a
decision.
72
(e) Teacher Education and Evaluation
Faculties of education have a monopoly when it comes to educating teachers
and providing an initial set of teaching credentials. Initial teacher education is
conducted consistent with provincial regulations; however, like most higher
education programs, teacher education programs enjoy considerable autonomy
and are rarely, if ever, subject to independent, external assessments. The Teacher
Quality movement, which arose over the past 15 years in the United States,
Britain, and Australia,
73
was ignored by education faculties and gained little or
no traction in Canada. With the possible exception of Ontario, British Columbia,
and Alberta, merely raising questions about teacher quality elicits cries of
71
Mancini, above note 3; Megan Griffith-Green, ‘‘Teacher misconduct: Marketplace finds
disciplinary action often kept hidden from the public”, CBC News (7 April 2016), online:
<https://www.cbc.ca/news/canada/marketplace-trouble-in-the-classroom-part1-
1.3523487#:~ :text=CBC%20News%20Loaded-,Teacher%20misconduct%3A%20-
Marketplace%20finds% 20disciplinary%20action%20often%20kept%20hidden%20-
from,that%20credentials%20are%20rarely%20revoked>.
72
Griffith-Greene, ibid.
73
Andrew Rotherham, ‘‘Blame Game: Let’s Talk Honestly about Bad Teachers”, Time, 20
October 2011), online: <https://ideas.time.com/2011/10/20/blame-game-lets-talk-hon-
estly-about-bad-teachers/>; National Council on Teacher Quality, ‘‘State Teacher
Policy Database” (2014), online: <http://www.nctq.org/statePolicy/statePolicyHome-
New.do>.
LIFTING THE VEIL AND CLOSING THE LOOPHOLES 113
‘‘teacher bashing” and passionate denunciations of so-called ‘‘blame-and-shame”
policies.
74
Faculties of education maintain that Canada is blessed with a teacher force
composed of properly credentialed, dedicated, and hard-working teachers.
Teacher pay scales are said to be responsible for attracting and retaining a
workforce of competent, better educated teachers, particularly in comparison
with the United States. Deans of education and their appointees work through
provincial oversight committees to quietly resist periodic attempts to assess the
quality of teachers flowing from their programs.
75
Teacher codes of ethics and
professional conduct, once central to teacher training, have — over the years —
been shunted to the periphery of the curriculum or displaced by new pedagogical
priorities, such as ‘‘social justice education.”
76
Teaching competence is assumed and rarely confronted at the provincial,
district, or school level. A decade ago a Canadian Council of Chief Executives
report titled Effective Management of Human Capital in Schools not only
proposed more robust teacher evaluations but also challenged seniority rules in
determining teacher layoffs.
77
After one year (Ontario) or two years (Alberta),
permanent teachers enjoy double protection in the form of provincial
certification or licensing and a teachers’ union contract with secure tenure.
Although the introduction of student testing has brought more classroom
oversight and periodic surveillance, teachers under regular contracts remain
virtually immune from sanctions, corrective actions, or dismissal — and
disciplinary hearings allow for lengthy and time-sapping appeal processes.
78
Students and colleagues are adept at spotting teachers who are struggling or
confronting issues of competence. Teacher evaluations are conducted
particularly when entering or transferring to new schools, but they are almost
universally time-consuming paper exercises of low quality after which educators
are invariably deemed satisfactory.
79
When teachers are accused of misconduct
or show signs of ‘‘melting down” or ‘‘lashing out” at students, they tend to be
sheltered by their unions and often suspended with pay and assigned to
74
Genevie` ve Boulet, ‘‘The Blame-and-Shame Game in Education”, The Chronicle Herald
(6 June 2012).
75
Government of Nova Scotia, Department of Education, News Release, ‘‘Teacher
Certification Changes Announced” (15 August 2000), online: <http://novascotia.ca/
news/release/?id =20000815004>; Government of Nova Scotia, Department of
Education, Report and Recommendations of the Review Panel on Teacher Education in
Nova Scotia (2007); Government of Nova Scotia, Education, News Release, ‘‘Education
Minister Receives Teacher Education Review Report”, (16 January 2008), online:
<https://novascotia.ca/news/release /?id =20080116002>.
76
Campbell, ‘‘Ethical Teaching,” above note 10; Campbell, ‘‘Foreword,” above note 10.
77
Maharaj, above note 46.
78
Isai and Gibson, above note 57.
79
Maharaj, above note 46 at 8; A. R. Odden, Strategic Management of Human Capital in
Education (New York: Routledge, 2011).
114 EDUCATION AND LAW JOURNAL [32]
supervised administrative duties.
80
In Manitoba, the provincial union, known as
the Manitoba Teachers Society, labelled the proposed 2022 legislation as ‘‘anti-
teacher” largely on the basis of its expanded purview, extending into the sphere
of teacher competence.
81
Clamping down on sexual predators in schools is now
acceptable, but questioning teacher competence is still resisted as ‘‘teacher
bashing.” That is the culture that still pervades the mentorship of teachers.
(f) The Donut Hole in the Middle: The Absence of a National Registry
The critical need for a national registry of teachers found to have engaged in
professional misconduct is becoming clearer each year. Two recent attempts by
provincial ministers of education to promote a national registry, presented to the
Council of Ministers of Education (‘‘CMEC”) in 2005 and again in 2018 went
nowhere.
82
In 2005, the CMEC feasibility study advised against establishing such
a body, citing complications in enacting legislative changes, costs of
implementation, and the potential for missing teachers flying under the radar.
It is back for consideration now that four or five provinces have established or
are in the process of establishing teacher registries recording and making public
cases of teacher misconduct and dismissal for professional incompetence.
Alberta Education Minister Adriana LaGrange has championed the cause
for the past three years. One of the better known cases is that of a Manitoba
teacher, holding an Ontario teaching licence, who committed offences, then left
the province and reoffended in Nunavut. Some six years after he lost his
certificate for sending ‘‘vulgar and demeaning comments” to a student and her
mother, the teacher was found to be engaging in ‘‘aggressive and unprofessional
behaviour” in Nunavut. It was one of the cases that convinced LaGrange that
bad teachers were slipping through the gaps and prompted her to issue a letter in
March 2020 to Nova Scotia Education Minister Zach Churchill, then acting
Chair of CMEC. ‘‘As Ministers of Education,” she wrote, ‘‘we have a moral
obligation to ensure our children and our staff are safe.” Because CMEC
discussions are confidential, there is no way of assessing the response to her
proposal to form a ‘‘working group” to examine the development of ‘‘a national
registry” of ‘‘teachers who have been found guilty of abusing their authority.”
83
80
See Bennett and Mitchell, above note 3 at 8 and 19-20 for Nova Scotia cases.
81
Manitoba Teachers’ Society, Media Release, ‘‘Bill 35: Government introduces anti-
teacher legislation” (15 March 2023); Nathan Martindale, ‘‘Teachers Support Regula-
tion, Amendments to Bill 35”, Brandon Sun (23 March 2023), online: <https://
www.mbteach.org/ mtscms/2023/03/23/teachers-support-regulation-amendments-to-
bill-35/.
82
Desjardins, above note 4.
83
Ibid.
LIFTING THE VEIL AND CLOSING THE LOOPHOLES 115
5. POLICY OPTIONS FOR PROFESSIONAL TEACHER REGULATION
REFORM
Three possible policy options for reform have emerged and been
implemented, to varying degrees, in some provinces. Each of the approaches
or models will be briefly explained and assessed in terms of their potential
effectiveness in upholding teacher quality standards, dealing more effectively
with cases of misconduct or competence, and weeding out those who do not
belong in the classroom with children.
(a) Modest Reform: Clearer Delineation and Differentiation of
Responsibilities
A collaborative approach to self-regulation appeals to many teacher unions
and those committed to sustaining the status quo. Given the public concern over
sexual assaults and misbehaviour by education staff, however, the status quo is
not sustainable for much longer, even in the holdout provinces.
84
The only viable
option for retaining the current system would be to establish a clearer, more
explicit and comprehensive set of ‘‘professional standards” setting out the
grounds for suspension and dismissal not only for unethical conduct, but also for
professional incompetence.
85
Teachers, students, and parents in hold-out provinces, such as Nova Scotia
and New Brunswick, would benefit from the following reforms to the existing
model of oversight. In Nova Scotia, a reform of the Teaching Profession Act
86
could incorporate a greatly expanded discipline section closely modelled after
Alberta’s Teaching Profession Act
87
and Saskatchewan’s The Teachers’
Federation Act, 2006.
88
The Minister of Education should be authorized to
amend and strengthen codes of professional conduct and discipline in the interest
of students and to issue an annual report documenting all retirements,
suspensions, and dismissals as well as all cases of professional discipline.
89
A
regular review of teacher education programs and the quality of professional
degrees could be initiated by the Minister of Education and the Department of
Education and later assigned to the Teacher Certification Branch. In time, such
changes may demonstrate more responsiveness to the public interest and enhance
public trust in the profession.
90
84
Wildes, above note 6.
85
Cochran and Lemisko, above note 3; Clarke, ‘‘Lack of transparency,” above note 9;
Clarke, above note 55.
86
R.S.N.S. 1989, c. 462.
87
R.S.A. 2000, T-2.
88
S.S. 2006, c. T-7.1.
89
See The Registered Teachers Act, above note 51; Government of Alberta, Reforming
Teacher Profession Discipline, above note 48.
90
Bennett and Mitchell, above note 3 at 22; Desjardins, above note 4.
116 EDUCATION AND LAW JOURNAL [32]
(b) College of Educators: The Self- Governing Profession Model
A College of Educators model would represent a step forward if the new self-
governing organization was ‘‘an independent body to license, govern, discipline
and regulate the teaching profession, helping to improve public confidence in the
education system.”
91
The enabling legislation would replace the existing
arrangement with a self-regulating professional accreditation body for teachers
and administrators operating at arm’s length from the teachers’ federation or
union. The prime advantage would be that the Minister of Education would
acquire the authority to establish professional standards of competence and
conduct that the regulatory body would be mandated to apply and enforce,
subject to an annual ministerial review. The Governing Council of the College
would be chaired, ideally, by a pre-eminent education professional and the
governing board composed of a plurality of certified teachers and administrators
and include representation from constituent communities, including parent,
university, and independent community members. Although the functionality of
the board’s role would take precedence, it would be essential to respect and
reflect contemporary values of equity and viewpoint diversity.
In establishing a College of Educators, lawmakers would need to pay careful
attention to avoiding the conflict and dysfunction that accompanied the BCCT.
92
This goal could be achieved by building a firewall clearly delineating the
respective roles of the College and the teachers’ union; transferring professional
growth, conduct, and discipline to the College; and leaving the union responsible
for defending teachers’ rights and managing collective bargaining. Adopting the
Ontario model would ensure a firmer commitment to public proceedings as well
as far more public disclosure with respect to the disposition of serious cases of
gross negligence, teaching incompetence, and sexual misconduct.
93
Students,
parents, and the public would not be left in the dark with regard to such
important professional matters. The evaluation and accreditation of teacher
education programs could also be entrusted to the College of Educators.
94
91
Avis Glaze, Raise the Bar: A Coherent and Responsive Education Administrative System
for Nova Scotia, ‘‘Recommendation 7” (Halifax, NS: Government of Nova Scotia,
2018), online: <https://www.ednet.ns.ca/docs/raisethebar-en.pdf> at 33; Government
of Nova Scotia, Dep- artment of Education and Early Childhood Development, ‘‘Glaze
Report Provides Recomm- endations to Improve Nova Scotia’s Education Adminis-
trative System” (23 January 2018), online: <https://novascotia.ca/news/release/
?id=20180123003#:~:text=Glaze%20says%20 Nova%20Scotia%20students,mor-
e%20supports%20and%20fewer%20distractions> quoting Glaze, ibid.
92
Steffenhagen, above note 40.
93
Hon. Patrick J. LeSage, Review of the Ontario College of Teachers Intake, Investigation
and Discipline Procedures and Outcomes, and the Dispute Resolution Program (31 May
2012), online: <http://www.oct.ca/~/media/PDF/Lesage%20Report/EN/LeSage_Re-
port_e.ashx>.
94
Bennett and Mitchell, above note 3 at 22-23; Glaze, above note 91 at 32.
LIFTING THE VEIL AND CLOSING THE LOOPHOLES 117
(c) A Robust Teaching Profession Commission or Expanded Regulation
Branch
The best and most cost-effective option may be to establish either a Teacher
Profession Commission or an expanded Regulation Branch in the provincial
Department of Education.
95
Such an entity would be affiliated with, but
independent of, provincial education authorities.
96
That approach recognizes the
need for a measure of governance autonomy, while avoiding the potential
problems associated with self-governing bodies, as identified in Don Avison’s
2010 report, A College Divided, which chronicled the conflicts compromising the
effectiveness of the former BCCT.
97
Moving to create a Teacher Regulation
Branch without attempting to develop a college of teachers would avoid the
possibility of a repeat of the BCCT crisis of 2009 to 2011.
98
Appointing a stand-
alone Teacher Profession Commission would also prevent a democratically
elected governing board from being co-opted by the union leadership and
rendered almost impotent, as in the cases of British Columbia and, at times,
Ontario.
99
Robust regulatory bodies would be more likely to avert potential conflicts of
interest. The BC Teacher Regulation Branch model, for example, has the
advantage of encompassing the powers and responsibilities of a college of
teachers without running the risk of creating a countervailing institution. The
real stress test would be maintaining the integrity of proceedings in rare cases
when the regulatory body is called upon to consider whether to discipline a union
leader, a prominent political activist, or a close colleague from the school district
of a member of the body. Smaller governing boards of 12 to 15 members are
preferable, and consideration might be given to appointing an external chair
drawn from a comparable profession. Critical to its success would be appointing
or pre-qualifying candidates to ensure a proper balance of governance experience
and expertise, particularly in financial, human resources, and program
management.
100
The mandate of the new body should include the evaluation
and accreditation of professional degree programs offered by faculties of
education and teacher training institutes in order to ensure the validity and
quality of degree programs offered in Canada, the United States, and abroad.
101
95
O’Connor, above note 54.
96
Education (Reforming Teacher Profession Discipline) Amendment Act, 2022, above note
48.
97
Avison, above note 41.
98
Steffenhagen, above note 40; Glegg, above note 69 at 45-50.
99
Glegg, ibid. at 51-64; Donovan, above note 57.
100
Avison, above note 41 at 33.
101
Bennett and Mitchell, above note 3 at 14, 25.
118 EDUCATION AND LAW JOURNAL [32]
6. CONCLUSION: PUBLIC POLICY IMPERATIVES — PUBLIC
DISCLOSURE AND ACCOUNTABILITY
Most Canadian provinces are now fully engaged in clarifying teacher
professional standards and embracing the reform of teacher discipline policy and
practice. The ‘‘Me Too” movement may have given new life to initiatives aimed
at addressing the hidden problem of student sexual abuse by school personnel.
102
Highly publicized cases of sexual abuse and online harassment, national child
protection reports, and investigative journalism have moved the needle and
nudged provincial education authorities in the right direction. Provincial
registries of teacher misconduct and professional incompetence have multiplied
to the point where establishing a national registry is feasible.
103
Public disclosure of and accountability for sexual abuse by education
personnel have been long-standing problems
104
and, in this respect, education
continues to lag behind other professions and publicly funded social services.
‘‘Most systems involved in the intake, investigation, and discipline of school
personnel lack independent oversight and are not publicly transparent,”
according to the Canadian Centre for Child Protection’s November 2022
report. ‘‘There are often multiple disjointed entities involved in the process with
no one body being ultimately accountable.”
105
Given the severity and persistence of these problems, the Centre has now
been joined by a group of childhood sexual abuse survivors in demanding
reforms. That lobby group, Stop Educator Child Exploitation (‘‘SECE”), which
is composed of survivors of sexual abuse ‘‘at the hands of school personnel,” says
Canada’s patchwork of policies, practices, and reporting mechanisms for victims
needs an overhaul. In addition to regulatory changes, their report proposes
structural reforms. Among their recommendations is a call for national or
provincial entities to deal with complaints, similar to an independent body like
an auditor general. ‘‘While most teachers are honest, caring people, there will
always be sexual predators in our schools,” states the SECE report.
106
Former federal deputy minister Anne-Marie Robinson, a survivor of sexual
abuse, played a key role in SECE’s second study and helped to develop their
proposed policy recommendations to protect students from predators. Robinson
found the mechanisms across jurisdictions for reporting abuse complaints are
ineffective, often attached to school boards or unions, and in some cases making
matters worse for alleged victims. Speaking to CBC News, she stated, ‘‘You need
102
Canadian Centre for Child Protection, above note 11.
103
Desjardins, above note 4.
104
Robins, above note 3.
105
Canadian Centre for Child Protection, above note 11 cited in Desjardins, above note 4.
106
Julie Ireton, ‘‘New data shows increase in reports of sexual abuse in schools”, CBC News
Ottawa (3 November 2022), online: <https://www.cbc.ca/news/canada/ottawa/centre-
child-protection-sece-new-data-recommendations-protect-students-1.6635824>.
LIFTING THE VEIL AND CLOSING THE LOOPHOLES 119
a safe place to report. You need a place that you can trust and you need a place
that has a trauma-informed approach.”
107
Teacher regulation reform in Canada continues to be rather narrowly
focused on ‘‘weeding out” the so-called ‘‘bad apples” in the profession. That
approach tends to obscure a missing piece — upholding and safeguarding
teacher competence.
108
Educators’ sexual abuse of children is the lightning rod
for legislative action, but physical and emotional abuse can still go unreported,
and it is often related to teacher mental health, burnout, and stress.
109
The CBC-
TV ‘‘Marketplace” investigation in April 2016 flagged cases of teachers’ bullying
of children and struggling to maintain control over their classrooms.
110
Professional codes of conduct, teacher education, and classroom supervision
all need to be reviewed to ensure that students inhabit safe and mutually
respectful classrooms conducive to learning.
111
Teaching profession regulation reform is proceeding along a broken front
from province-to-province across Canada. In a relatively decentralized education
system, the emerging pattern is variegated ranging from simply tightening up
existing arrangements to the establishment of a self-governing profession.
Entrusting this responsibility to the Canadian Teachers Federation is not a viable
long-term solution. Without a federal education department, it will be up to the
Council of Ministers of Education (CMEC) to acknowledge the service gap,
support pro-active provincial reforms, and clear away the remaining obstacles
standing in the way of progress on a national scale.
107
Ibid.
108
Vail, above note 28; Clarke, above note 55.
109
Donovan, above note 57.
110
Griffith-Green, above note 71.
111
Bennett and Mitchell, above note 3 at 24-25; Schwimmer and Maxwell, above note 30;
Wildes, above note 6.
120 EDUCATION AND LAW JOURNAL [32]
