In this issue:
teachers; accusations of sexual misconduct; standard of proof required
Mr. Bjornson taught in the Sunshine Coast school district for twenty-five years. In 1989, there were complaints from students that Mr. Bjornson had touched or approached them in ways which made them feel uncomfortable, and in November 1989 he received a disciplinary letter from the Superintendent of Schools. On March 19, 1991, Mr. Bjornson was dismissed by the School Board after grade eight students in his woodwork and metalwork classes complained that he had touched them and made comments to them which 'perhaps' carried sexual connotations. The dismissal was upheld by an arbitration panel, and then quashed by decisions of two separate panels of the Labour Relations Board who remitted the matter back for a new arbitration. The Labour Relations Board's decision was then overturned by the B.C. Supreme Court. On appeal, the B.C. Court of Appeal reinstated the decision of the Labour Relations Board, which ordered a new arbitration. Seven years after it started the process, the School Board applied for leave to appeal to the Supreme Court of Canada.
What is the standard of proof that a labour arbitration panel, or other quasi-judicial body, must use in assessing claims of sexual misconduct? Should a lower standard of proof be used where the allegation involves a threat to children?
The Supreme Court of Canada refused to grant leave to appeal, so the decision of the B.C. Court of Appeal stands, upholding the Labour Relation Board's decision to remit the matter for a new labour arbitration on a higher rather than a lower standard of proof for such cases.
As is normally the case, the Supreme Court of Canada did not provide any reasons in support of its decision not to hear the School Board's appeal of the Court of Appeal's judgment. The final reasons for judgment in this case therefore came from the British Columbia Court of Appeal.
The Court of Appeal's concern was mainly with principles of administrative law; specifically whether the Labour Relations Board exceeded its jurisdiction in quashing the decision of the arbitration panel. However this required that it examine the evidence against Mr. Bjornson, and the standard of proof used by the arbitration panel. Ultimately the Court held that the LRB acted within its jurisdiction in deciding that the arbitration panel should have used a much more exacting standard in weighing the allegations against Mr. Bjornson.
The Court previously stated in Hansen v. Disciplinary Hearing Sub-Committee of College of Teachers (1993) that the evidence in regard to allegations of professional misconduct has to satisfy a "higher standard of proof" than the ordinary civil standard of balance of probabilities. The rationale for this is long-established in the common law. Where allegations of moral turpitude are made against an individual in his or her professional capacity, the damage to reputation will have such serious consequences that the trier of fact had better be sure that the allegations are true.
For Mr. Bjornson, his alleged misconduct consisted of tugging at the hem of a female student's shorts and saying 'nice shorts' and asking a female student about what sorts of things she did with her boyfriend. The evidence before the arbitration panel was such that it was equally plausible that the incidents did not happen, and if they did, that the statements were equally capable of lewd and non-lewd meanings. If the higher standard of proof is required, then the benefit of the doubt must have been resolved in favour of Mr. Bjornson, which the arbitration panel did not do.
While this case was argued in terms of administrative law, it is another example of the pressure that is being brought to reduce the procedural protection available to individuals, often teachers and parents, who are accused of sexual misconduct.
The unjust treatment of those wrongfully accused of sexual misconduct has been gathering much attention in the recent months. The political climate in many schools, businesses, police departments and government agencies has been such that where an accusation is made, guilt is simply assumed. It is not unreasonable to expect better from courts and quasi-judicial bodies such as human rights tribunals, labour boards and arbitrators. It is of course a laudable desire to protect children from sexual predators, especially ones within their own family or in some other position of trust and authority. However, and no matter how trite it is to say, in our legal system that objective must be held in balance with the basic norm that it is fundamentally unjust to punish someone for conduct for which that individual is not morally blameworthy. Our legal system has traditionally provided procedural protection for those accused of crimes and other misconduct, no matter how grave, so that in the emotional aftermath of the allegation, the desire to punish the offender and protect those remaining at risk is not satisfied at the expense of an individual who is, inconveniently, blameless.
These safeguards include procedural protections, such as the right to cross-examine one's accuser, and that in the criminal context an individual's guilt must be established beyond a reasonable doubt. Where an accusation of criminal wrongdoing has been made, the possible sanctions of imprisonment and the related social stigma require that the accusation be established beyond a reasonable doubt. In a civil proceeding the standard is lower; the evidence is weighed on the balance of probabilities. However, where professional misconduct is alleged, especially of a sexual nature, the damage to an individual's reputation and livelihood is such that the allegations must be established beyond the normal civil standard of the balance of probabilities.
This case is an example of the tremendous power that is at the disposal of a school board that chooses to proceed against an individual even where evidence is thin and (one would have thought) thoroughly unconvincing. Even where the allegations are ultimately not established, or are proven to be false or withdrawn completely, significant and irreparable damage may have already occurred. The ordeal of being branded as lewd and prurient and being pursued for seven years by a public body which fails to adequately scrutinize the quality of allegations in some measure explains why some teachers who are unfairly accused of wrongdoing do not return to public service even after allegations have been thrown out.
The sloppy application of evidentiary findings in this case (where a majority of the arbitration panel upheld the discipline of the teacher on unreasonable findings of fact) do not give confidence that the current climate favours sound judgment. In such a setting superior courts and (as in this case) reviewing labour boards must be bold to overturn less than rigorous findings of fact.
Recent press accounts about virtual "witch-hunts" in cases of this sort call for a new scepticism regarding allegations any part of which are based on such things as "repressed memory" (which has recently been rejected as invalid by the Royal College of Psychiatrists). School boards and arbitration panels are not the only public bodies with the capacity to wreak havoc through carelessness. A police constable in a Vancouver suburb recently retired after his aggressive, invasive, and hopelessly biased techniques in investigating teachers accused of sexual misconduct finally prompted an internal police review after three individuals were wrongfully accused and dragged through the legal system. As long as it remains politically fashionable for public agencies to pursue teachers accused of sexual misconduct as though their guilt were a foregone conclusion, the lives and careers of innocent individuals will continue to be unjustly injured.
This issue of LexView was researched and written by:
Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B. of the British Columbia Bar
Brad Miller, B.Comm., LL.B, LL.M. (magna cum laude) of the British Columbia Bar.
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Copyright © 2010 Iain Benson and Brad Miller
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