Complimentary Primary (K–12) Cases

Facts

K.B. (the Teacher) was a teacher, coach and mentor to the victim (the Student), with whom he fostered a close relationship, including through the extensive use of telecommunications. The Teacher and the Student first met when she was 13 years old and in grade seven of elementary school in Manitoba. The Teacher was then 25 years old. He was her substitute teacher.

The following year, he was her grade eight homeroom teacher. During this time, they became close. The Student chose the Teacher as the subject for a class assignment, “My Incredible Influence.” On his own accord, the Teacher wrote a similar paper about the Student. When she graduated in grade eight, the Teacher gave the Student an engraved picture frame with a photo of the two of them, together with a note thanking her for, among other things, making him feel “full of love.”

Shortly before the Student commenced high school at a different school, the Teacher used an Instagram coaching account to message her. When she did not initially respond, he persisted. They began communicating on Instagram, trading numerous messages, photos and videos. The Teacher became a coach of the high school basketball team. He convinced the Student to have her sister play on the team so that he could see the Student more frequently.

The Teacher left letters and gifts for the Student in her locker. He would also leave notes and messages on her cellphone. They constantly texted. The Teacher frequently referred to how much he loved the Student, loved spending time with her and enjoyed hugging her. They had numerous Facetime video chats.

When the Student was in grade nine, the Teacher invited her to join the basketball team, indicting that she was the first grade nine student asked to play on the varsity team. They attended games and tournaments together.

The Teacher had the Student over to his house alone. He visited her at her house when her family was not home. He told the Student they had to keep their relationship a secret as, if discovered, it would ruin his career.

Eventually the Student’s parents learned of the relationship when they received a large phone bill resulting from all the text messages. After her parents seized her phone, the Teacher sent two further Instagram messages to her. He described his hurt at not being able to see or communicate with her, and “tell her how much he missed and loved her.” Secondly, the Teacher stated that he could not wait to see her and encouraged her to “stick through it.”

In total, the Teacher and the Student exchanged thousands of Instagram and text messages. Information charging the Teacher was sworn on June 15, 2021. The Teacher was arrested July 26, 2021.

The Offence of Luring a Child

Following trial in the Provincial Court, the Teacher was convicted of luring a child under section 172.1(1)(b) of the Criminal Code, RSC 1985, c C-46, which stipulates that every person who, by telecommunication, communicates with a person under 16 years, for the purpose of facilitating a designated offence (sexual interference, invitation to touching, exposure) with respect to that person, is guilty of child luring (R. v. Morrison, 2019 SCC 15 at para 43).

The Teacher argued that the intent to commit a designated offence could not be proven – that no sexual intention toward the Student was expressed. The Teacher maintained that he did not cultivate a relationship with the Student with any sexual intent.

The Crown argued that the evidence disclosed progressively increasing closeness and physical contact with the Student, including the duration and frequency of hugging, and the communications demonstrated an intent to facilitate the commission of a designated offence. 

The trial judge found that while the Teacher did not use sexually explicit language, the totality of the evidence proved beyond a reasonable doubt that the Teacher’s intent was to facilitate one or more section 172.1(1)(b) offences. The trial judge referred to the Teacher’s testimony admitting his desire to keep the relationship a secret, and several messages demonstrating his awareness of the inappropriate nature of what he was doing at the time. 

Cause of Action

The Teacher appealed his conviction to the Manitoba Court of Appeal.

Legal Issues

The Teacher listed six grounds of appeal, submitting that the trial judge erred in her interpretation and application of the law applicable to the charge of luring a child.

The Court refined the issues as being whether the trial judge erred in:

1) Dismissing the Teacher’s motion for a directed verdict based on a no evidence motion;

2) Assessing and applying the evidence; and

3) Dismissing the Teacher’s motion to stay the proceedings based on the right to be tried within a reasonable time.

Decision

The appeal was dismissed. 

Reasons

Totality of the Evidence

On appeal, the Teacher argued that no evidence demonstrated he was acting for the purpose of committing a designated offence, and that the trial judge erred by imposing her own view of the purpose of the communications, drawing inferences as opposed to considering the Teacher’s intent.

The Crown submitted that the trial judge correctly identified the elements of the offence and did not err when she found that the offence of child luring had been made out. The trial judge considered the totality of the evidence when finding an inference of guilt beyond any reasonable doubt. 

While the trial judge recognized that there was no direct evidence of an intention to commit a designated offence, she noted that sexually explicit language is not an essential element, nor is it required to demonstrate an intent to carry out a designated offence in the context of luring a child (R. v. Lagare, 2009 SCC 56 at para 29).

The Court of Appeal concluded that after considering the evidence, including the nature of the relationship, the frequency and timing of the communications, the behaviour and actions of the Teacher, including the nature of the physical contact, it was open to the trial judge to find the evidence was reasonably capable of supporting an inference of guilt. The Teacher did not demonstrate judicial error. In the Court’s view, the evidence spoke for itself – the Teacher was aware that he was fostering a deep relationship with the Student, slowly increasing the intimate nature and duration of their private contact.  

Trial Within a Reasonable Time

The Teacher argued that his right to be tried within a reasonable time pursuant to section 11(b) of the Canadian Charter of Rights and Freedoms (the Charter) was violated. The framework for assessing delay was set out by the Supreme Court in R. v. Jordan, 2016 SCC 27, establishing a presumptive ceiling of 18 months delay for cases tried in provincial court (the relevant timeframe in this case) and 30 months in the superior court. Presumptive time limits are intended to promote accountability on all participants in the criminal justice system, including the courts (R. v. Mengistu, 2024 ONCA 575 at para 33).

Determining delay involves calculating the total delay from the charge to the end of the trial, then subtracting any defence delay. Should a case exceed the Jordan ceiling, it is presumed to be unreasonable. Exceptional circumstances, arising from discrete events or a complex case, are determined “on the trial judge’s good sense and experience” (Jordan, para 71).

The Teacher was charged in June 2021, arrested in July 2021, and tried in November 2022. The trial was adjourned pending an interlocutory decision of the trial judge, with a continuation date of February 2023. Unfortunately, the prosecuting Crown suffered a family death, causing the continuation to be rescheduled to May 2023. In July 2023, the trial judge gave her reasons for convicting the Teacher.

The standard of review for judicial characterization of delay (and whether delay is unreasonable) is correctness. A judge’s findings of fact – what caused the delay – are entitled to deference and will not be disturbed absent palpable and overriding error (R. v. Flett, 2024 MBCA 99 at para 46).

In this case, accounting for some exceptional delay, the trial judge found approximately 16.6 months of delay – below the Jordan ceiling – and no breach of section 11(b) of the Charter. The Court of Appeal agreed with the overall conclusion of the trial judge that the total delay from the laying of the charge to the conclusion of evidence and arguments fell within the Jordan ceiling of 18 months for provincial court matters.

R. v. KB, 2025 MBCA 73 (Manitoba Court of Appeal)

Authored by Anna Zadunayski LLB, MSc. 

Key Questions for School Leaders

1. Why did the Court find that the teacher’s communications satisfied the offence of child luring?

The Court assessed the entire pattern of behaviour, not isolated messages. The frequency, secrecy, increasingly intimate tone of the communications allowed the trial judge to reasonably infer the required intent, even without explicit sexual language.

2. Does child luring require sexually explicit messages?

The Court confirmed that sexually explicit language is not required for a luring conviction. What matters is whether the communication, taken as a whole, was intended to facilitate a designated offence.

3. Was there unreasonable delay?

After accounting for exceptional circumstances, the trial judge assessed delay as being approximately 16.6 months, below the 18-month Jordan ceiling for provincial court matters. There was no breach of s. 11(b) of the Charter.

4. Did the trial judge misinterpret the evidence?

The Court of Appeal found no legal or factual error, determining the trial judge properly applied the law and considered the evidence, drawing permissible inferences about intent based on the relationship’s progression.

5. What does this case clarify about child luring in Canada?

Courts will consider context and patterns of behaviour, not just explicit content. A trial judge may infer intent based on totality of evidence. Child luring cases do not require sexually explicit statements.

Close this case ↑

Editor’s Note: The facts giving rise to this grievance were not in dispute. The arbitration proceeded on the basis of an agreed statement of facts. 

Agreed Statement of Facts

Gorian Surlan (the Teacher) taught at Parkdale Collegiate Institute (the School) in the Toronto District School Board (the Board). He was born in Serbia in 1962. During the Bosnian War, he worked for the International Red Cross, and witnessed many atrocities, which had a deep impact upon him. In 1992, he moved to Canada to pursue a teaching career, becoming a member of the Ontario College of Teachers (the College) and obtaining qualifications in a number of disciplines including business studies, special education, librarianship, cooperative education and English as a second language. At the time of his discharge, he had been employed as a teacher for nineteen years, without incident.

During his employment with the Board, the Teacher took advantage of a program allowing for sabbaticals every five years. He taught in Nigeria for a year in 2012. His family accompanied him, and his daughter attended school there. He also taught in Vietnam in 2019. The Teacher had no discipline record prior to the events giving rise to his discharge.

On October 29, 2021, the Teacher came to school dressed in a Halloween costume – hastily assembled that morning with his daughter’s assistance. His daughter gave him some black make-up, so he decided to be something scary. He dressed in a black shirt, black pants, black shoes and painted his whole face black, putting a black fabric mask over his face in compliance with COVID-19 protocols at the time. His intention was to present a scary persona, like that of a zombie.

The Board had regularly offered resources and training to teachers on matters such as cultural appropriation and anti-black racism. Before Halloween, the School emailed teachers, reminding staff of the harm resulting from cultural appropriation when choosing a costume. 

At 8:30am, after arriving at the School, the Teacher encountered the School Principal, who noted that the Teacher was wearing a black sweater, black pants and a black mask resembling a hockey mask. She asked the Teacher what he was supposed to be, and he replied that he was a zombie. Shortly after, the Teacher encountered the Vice-Principal, who thought that he was wearing a Black Panther or Batman mask. Given the brief interactions, neither administrators realized that the Teacher’s face was painted black underneath the mask.  

The Teacher’s first class began at 9:00am. Before students arrived, he put on a blue medical mask underneath his black mask. As the class progressed, the Teacher found it difficult to breath through two masks, removed the black mask and continued to teach wearing the blue mask.

Students in the class took pictures of the Teacher. One student, who was shocked and upset that the Teacher was in blackface, texted photos to his parents. The Student later described the class as being in disbelief that their Business teacher, who on occasion discussed current events with the class, would wear blackface in school. When asked what his costume was, the Teacher replied, “I don’t know, a zombie or something scary.”

In addition to the Halloween celebration, the School hosted a ‘Where Everybody Belongs’ event the same day. Approximately 250 grade nine students attended the event. Several staff saw the Teacher during the event. None of them raised concerns to him about his costume. 

During the event, the Vice-Principal was approached by three students who said the Teacher was in blackface. One of the students showed a photo of the Teacher with his blue mask over his blackface. Two of the students were visibly upset; one was crying. The Vice-Principal investigated. 

After the event, the Teacher was called into the office. The Principal noticed that the Teacher’s face was painted black under his blue mask, and he was not wearing any other mask. She told the Teacher that students were upset at seeing him in blackface. The Teacher did not seem to understand the issue but apologized. He was asked if he was aware of the controversy over Justin Trudeau appearing as Aladdin in blackface. He said he was, but that he was not trying to depict any person, rather he was attempting to portray a zombie. The Teacher was told to wash his face and return to class, which he did.

 After the Teacher went home, he conducted some self education on anti-black racism and blackface. He was horrified to learn about the history of blackface and the implications of wearing black make up to cover his face.

The incident was later reported in multiple media outlets, resulting in swift reaction from the Parkdale community, including organized marches and protests. The Board received many calls from community members wondering how such an event could occur.

On October 29, 2021, the Teacher was placed on a leave of absence, pending investigation. The leave was converted to a paid suspension effective November 1, 2021, pending investigation. Investigators met with multiple witnesses and the Teacher, who expressed remorse over the incident. He did not know the significance of blackface when he donned his costume and was horrified that he traumatized students and staff when he had no intention to do so. The Teacher stated that he wished someone had approached him earlier to warn him that he would be “cosplaying a person of colour.” He regretted his actions, now knowing how offensive they were.

The investigation report concluded that the Teacher’s conduct was blameworthy, the Teacher’s intention was irrelevant, and the impact on people, their feelings, and experiences were paramount in the circumstances. Following receipt of the report, the Board terminated the Teacher’s employment on November 15, 2021. The termination decision was made by the Superintendent of Employee Services together with Board leadership. They concluded that the Teacher knew or ought to have known that his conduct was contrary to Board policy and the impact of his behaviour on the School community was severe, long lasting and irreversible. The termination letter described the Teacher’s conduct as racist.

Following the decision, in accordance with its obligations under the Ontario College of Teachers Act, the Board reported the termination to the College, which found that the Teacher’s misconduct warranted some penalty. The College recommended that the Teacher complete an individualised course of study on anti-black racism and blackface. The Teacher completed the course in June 2023. In October 2023, upon confirmation of course completion, the Teacher’s status was restored to good standing.

Cause of Action

The Ontario Secondary School Teachers’ Federation (the Union) grieved the Teacher’s termination on the basis that the Teacher was unjustly discharged from his employment, contrary to the collective agreement between the parties. The grievance proceeded to arbitration.

The Board maintained that it had just cause to terminate the Teacher’s employment in the circumstances of the case. Given the reaction of students and the community to the Teacher’s costume, the Board submitted that discharge was the appropriate response.

The Union did not dispute that the Teacher’s misconduct in wearing the costume was culpable and deserving of discipline but argued that termination was excessive in the circumstances.

Legal Issue

The legal issue was whether termination of the Teacher’s employment was the appropriate penalty in the circumstances and, if not, what penalty should be substituted by the Arbitrator. 

Arbitration Award

The Arbitrator awarded that the penalty of discharge be rescinded, and the Teacher be reinstated forthwith, without loss of service or seniority. The Teacher was to be compensated for wages and benefits lost from October 1, 2023. The Arbitrator remained seized to deal with any difficulties in implementing the award.  

Reasons

Costume was Culpable Misconduct Justifying a Disciplinary Response

The parties agreed that the Teacher’s conduct in appearing at school in a costume that included blackface was conduct justifying a disciplinary response. The Teacher’s conduct was described as a racist incident under the Board’s policy, even though no harm was intended. The impact of the conduct in the context of present-day societal norms had to be considered in order to determine whether the conduct was culpable and justified discipline.

Each case must be determined by the particular circumstances. In this case the Teacher, by dressing up in blackface, caused a great deal of upset in the school community. The Arbitrator affirmed that the act of wearing the costume constituted culpable misconduct and the Teacher should have been more aware. Given the impact, a significant penalty was justified.

A Higher Standard for Teachers

Arbitral authorities recognize that teachers who are responsible for educating young students must be held to a higher standard than most other employees when considering culpable misconduct. While the Board argued that intent was irrelevant in the context of racism, in the Arbitrator’s view, intent was still relevant in determining whether the misconduct was so egregious that the employment relationship could not be saved.

The Arbitrator noted that many of the authorities relied upon by the Board dealt with misconduct that was more overtly egregious than the misconduct in this case. Termination of employment should only be implemented as a last resort in circumstances where the employment relationship cannot be rehabilitated.

Appropriate Case for Reinstatement

The Arbitrator could not ignore that once the Teacher realized his costume was upsetting, he was horrified that he had not been aware of the issue and apologized for his actions with contrition. The Teacher had long service with

the Board with no prior discipline. A significant suspension would likely have had the desired effect of ensuring that the Teacher would be more aware of the cultural sensitivities present in a diverse community and unlikely to commit such misconduct a second time. In this case, there was no reason to conclude the employment relationship was incapable of rehabilitation.

Ontario Secondary School Teachers’ Federation v. Toronto District School Board, 2025 CanLII 80365 (ON LA) (Ontario Labour Arbitration Awards).

Authored by Anna Zadunayski LLB, MSc.  

Close this case ↑

Facts

The Saskatchewan Teachers’ Federation (the Union) is the legislated provincial collective bargaining agent for public school teachers in Saskatchewan. The Saskatchewan School Boards Association (the Employer) represents school boards in Saskatchewan and negotiates on behalf of school boards and the Government of Saskatchewan. The previous provincial collective agreement expired in August 2023.

Negotiations for a new collective agreement began in May 2023. Lack of progress on the issues of teacher salaries and classroom complexity resulted in the parties agreeing to arbitration in June 2024.

The first item concerning wages was relatively straightforward in scope, involving the amount by which teacher salaries would increase over a three-year term, commencing in September 2023. The parties fundamentally disagreed, however, about the scope of class complexity. 

Class complexity encompasses the diversity of student needs in each teaching and learning environment. Class complexity captures a number of factors including:

• Increasing needs of students entering the school system;
• Increased ratios of students per teacher (and other professional staff) resulting in larger class sizes;
• Growing student health (including mental health) issues; and
• Shortage of publicly funded professional assessment of students identified as having special or intensive needs impacting their learning programs.

Class complexity in Saskatchewan continues to grow and intensify as student needs become more complex and class sizes increase. These issues have become increasingly problematic in the school system over the past decade. Driven by larger enrolment numbers and higher student-to-teacher ratios with fewer staff and resources to support student needs and learning, class complexity negatively impacts working conditions and student learning environments.

Some argue a provincial approach is required to address class complexity. Apart from Alberta and Saskatchewan, every other provincial teacher agreement in Canada addresses at least one of the following: class size; class composition; class complexity and/or violence-free work environments.

A request for arbitration was made jointly by the parties in a letter to the Educational Relations Board in June 2024. 

Cause of Action

The Chair of the Educational Relations Board, at the request of the parties, referred two issues to the Board of Arbitration (the Board) – a quasi-judicial tribunal – pursuant to section 260(2) of the Education Act, 1995. The referral limited the arbitration issues to teacher compensation and class complexity.

The Employer refused to bargain class complexity, taking the position that class complexity was not legislatively recognized as a provincial bargaining item. The Employer submitted that class complexity was an issue for local school boards because “one size did not fit all.”

Legal Issues

The Board of Arbitration had three issues to address:

1)  Teachers’ salaries for the three-year term of the new collective agreement;

2)  Board jurisdiction (scope of authority) with respect to class complexity; and

3)  Collective agreement provisions, if any, addressing class complexity. 

 

“Interest arbitration is an integral part of the bargaining process and  has long been used as an alternative to work stoppage during particularly difficult bargaining rounds.”

 

Decision

Salary Increases for Teachers

The Board determined that the salary increases for the 2023-25 collective agreement would be:

• 4% effective September 1, 2023;
• 3% effective September 1, 2024; and
• 2% effective September 1, 2025.

The salary increases were directed to be implemented as soon as practicable.

Class Complexity

The reference to binding arbitration gave the Board the authority and jurisdiction to consider issues related to class complexity. The Board directed:

• Each school with 150 students or more should have an additional one (1.0) certified teacher to provide support to classroom teachers to address issues related to class complexity.
• Each school with a student population of 75 to 150 students should have an additional half-time (0.5) certified teacher to provide support to classroom teachers to address issues related to class complexity.
• A $20 million per year class complexity fund should be created by the Government of Saskatchewan (in addition to all other provincial funding) to assist schools with a student population of less than 75 students to address issues related to class complexity.

The parties were given 60 days to agree on collective agreement language to implement the above-noted directions. The Board retained jurisdiction in case it was necessary to resolve any outstanding issues concerning implementation or collective agreement language. If the parties did not agree, they could request the Board to resolve any outstanding issues.  

Reasons

Governing Principles of Interest Arbitration

There is a long history of interest arbitration in Saskatchewan and Canada, outlining the principles that an arbitration board should consider in imposing terms and conditions of a collective agreement where the parties themselves have been unable to agree. Interest arbitration is an integral part of the bargaining process and has long been used as an alternative to work stoppage during particularly difficult bargaining rounds (Teachers’ Bargaining Committee and Government-Trustee Bargaining Committee, 2018 CarswellSask 446 at para34). 

The fundamental goal of interest arbitration is to replicate as closely as possible what the parties would have achieved through a negotiated settlement where the threat of work stoppage is available.

Factors in resolving collective bargaining disputes may include:

• Cost of Living;
• Economic Climate;
• Comparability within the same occupation;
• Comparability with other occupations; and
• Economic Impact.

Arbitration boards have considered wage settlements in similar sectors in western Canada, cost of living, municipal and provincial economic circumstances, and comparisons with similar or same occupations elsewhere. Normally, the entire matrix must be considered (Re McMaster University and McMaster University Faculty Association (1990), 13 L.A.C. (4th) 199 at 202). 

Interest arbitration is fundamentally a conservative process that is not intended to supplant bargaining, but rather to supplement and assist it. Interest arbitration awards are not a vehicle to introduce “breakthrough” provisions into a collective agreement (City of Edmonton and Edmonton Police Association (unreported, 7 June 2023) at para 57).

Teacher Salaries

In interest arbitrations it is common to consider data from comparative jurisdictions, such as salary information from comparator provinces, as was done in this case. The Employer argued using the western Canadian provinces as comparators provided the best and closest comparison using objective criteria. Here, the Board agreed that the Western Canadian Average for class IV teacher salaries was an indicator of whether the parties’ proposals were “in the ballpark” or out of line.

Considering the comparative and economic data submitted, the Board concluded that the Employer’s offer was fair and reasonable, providing certainty with respect to Saskatchewan teacher salaries for the three-year term of the contract, one half of which had already expired. 

Board Jurisdiction to Address Class Complexity

The parties in this case made a joint request to the Educational Relations Board to refer two specific matters to arbitration: teacher salary and class complexity. At arbitration however, the Employer’s position was that it had not agreed to negotiate class size or complexity, and it did not refer that issue for arbitration. The Employer further argued that the Board did not have the authority to address class complexity issues.

The Employer refused to negotiate provincial collective agreement provisions regarding class complexity or size, as these were matters for local school boards, under section 85(1) of The Education Act. The Board determined that class complexity was a matter of concurrent jurisdiction between the provincial bargaining table and local boards. There was no legislative restraint on negotiating class complexity at the provincial level. As such, the Board had the authority and jurisdiction to consider issues related to class complexity.

Class Complexity in Saskatchewan

What if anything, was to be included in the new collective agreement with respect to class complexity? The Employer maintained that class complexity was an issue to be addressed at the government level, such as the government allotting $7 million for educational assistants and, in June 2023, allotting $40 million to address enrolment growth, class size and composition. The Union responded that a one-time injection of funds, while helpful, created a situation of unpredictability. 

Most collective agreements in western Canada do not have provisions regarding class size or complexity. British Columbia is the exception. Here, the Board found it appropriate to include provisions in the provincial collective agreement relating to a modest increase in teachers or professional staff to assist students with special needs. Additional classroom support (provided for in the collective agreement) for all public schools was a positive step.

Government of Saskatchewan and Boards of Education v. Saskatchewan Teachers’ Federation, 2025 CanLII 47923 (SK LA) (Saskatchewan Labour Arbitration Awards).

Authored by Anna Zadunayski LLB, MSc.  

Close this case ↑

Editor’s Note: This case was edited by the Court for publication and has been anonymized to protect vulnerable individuals.

Facts
In May 2023, an incident occurred in a grade 8 classroom of Sakku School in Coral Harbour, Nunavut. Michelle Wolf (the Teacher) was teaching grade 8 math when a grade 7 student (the Student) entered the classroom to retrieve his hat. While in the classroom, another student with whom the Student had difficult relations took the hat and ran away. A chase ensued, with the students running around the classroom, including on top of desks, impacting other students. The Teacher went to the hallway to call for help, but nobody came.

The Teacher went back into the classroom. The boys didn’t stop. The Teacher reached out and grabbed the Student’s hoodie by the waist to stop him, hurting his neck. The Teacher had no intention of hurting the Student. There was no other way she could stop the students from chasing each other in the classroom. The Student said he was going to tell the principal. The Teacher told him to go ahead.

The Student reported the incident to the principal. Months later, after discussing the incident with another teacher, police officers became involved.

Cause of Action
The Teacher was charged with one count of assault on the Student contrary to Section 266 of the Criminal Code, RSC 1985, c C-46.

The Teacher’s defence was based on Section 43 of the Criminal Code, which justifies a schoolteacher’s use of force on a pupil to correct behaviour. The use of force must be reasonable under the circumstances for the defence to be available.

Legal Issue
The legal issue was whether the Teacher was guilty of criminal assault. Determination of the issue involved consideration of whether the Teacher was permitted to use force for a corrective purpose, and whether the force used was reasonable in the circumstances.

Decision
The Teacher was found not guilty of the charge against her. The Court was satisfied that the Teacher’s action was undertaken for a corrective purpose and was reasonable in the circumstances.

Reasons

Presumption of Innocence and Burden of Proof
In a criminal trial, it is essential for a trial judge to bear in mind four fundamental legal concepts: presumption of innocence, burden of proof, reasonable doubt and assessment of evidence (R. v. M.V., 2025 NUCJ 10 at paras 14-19). At trial, an accused does not have to prove anything, testify or call evidence. The presumption of innocence remains throughout the trial and is only defeated when the Crown satisfies the court that the accused committed each essential element of the offence beyond a reasonable doubt (R. v. Oakes, (1986) 24 C.C.C. (3d) 321 at paras 32-35).

Reasonable doubt is based upon reason and common sense arising logically from the evidence (or absence of evidence). Proof beyond a reasonable doubt is closer to absolute certainty than it is to probable or likely guilt (R. v. Starr, 2000 SCC 40 at para 242).

Assessment of Evidence
Evidence presented at trial must be considered carefully and with an open mind. The court decides the evidence to rely upon and may accept some, none, or all of it (R. v. Abram, 2005 CarswellOnt 8197 at para 31). The court must consider the cumulative effect of the evidence (R. v. Knezevic, 2016 ONCA 914 at paras 30-32).

Defence of a Person in Authority
In this case, it was not necessary to determine whether the Teacher intentionally applied force upon the Student. It was conceded. The Teacher admitted to pulling on his hoodie sweater, raising the defence of a person in authority.

Under section 43 of the Criminal Code, every schoolteacher is justified in using force by way of correction toward a pupil in their care, if the force does not exceed what is reasonable in the circumstances. Section 43 is a justification section forming part of the Code since 1892, exonerating an accused where circumstances justify or excuse the impugned conduct. It only applies to the “mildest forms of assault” being a sober, reasoned use of force for the purpose of education or discipline.

When considering the applicability of section 43, a physical assault by a teacher is justifiable only if the intention was correction and the discipline was reasonable under the circumstances (R. v. McSweeney, 1993 CanLII 2839 (NWTSC) at paras 9-10). For the defence to succeed, the force must have been used for education or discipline. The trial judge must assess whether the force used was reasonable in the circumstances.

Here, the Teacher’s testimony made the most sense to the trial judge, who was convinced that she acted to stop the Student from running in her class. She admitted to pulling on his hoodie sweater because she had no choice. There was no evidence that she acted in anger or frustration. She did what she thought was reasonable to stop the situation.

The Teacher was lawfully permitted to apply force on the Student for a corrective purpose. In the Court’s view, the force used was reasonable in the circumstance.

R. v. Wolf, 2025 NUCJ 12 (Nunavut Court of Justice).

Authored by Anna Zadunayski LLB, MSc.

Close this case ↑

Editor’s Note: This criminal sentencing decision is subject to a publication ban to protect the victim. By an order under section 486.4(1) of the Criminal Code, information identifying the victim may not be published. The case involves details of sexual crimes by a high school teacher against a vulnerable student. While this article has been carefully censored out of respect for the victim, reader discretion is advised. 

Facts

Ryan Turgeon (the Teacher) was an Ontario high school teacher until 2021. In 2017 and 2018, he sexually exploited a vulnerable, underage student (the Student). 

The Teacher was the Student’s Grade 11 and 12 teacher between February and June 2017, and February and June 2018. At 16 years old, the Student was struggling with his sexuality. He sought advice from the Teacher. Knowing the Teacher was gay and had a boyfriend, the Student felt comfortable with him. The Student told the Teacher about his internal challenges and “things” that had happened between himself and another student.

Following the conversation, the Student was left with the distinct impression that instead of offering advice, the Teacher wanted to have a physical sexual experience with him. The Student changed the subject and the conversation ended approximately five to ten minutes later. The Student was uncomfortable with what the Teacher had said, but brushed it off and went on with his day.

Weeks later, the Teacher and Student began communicating through the social media platform Snapchat, which continued to the end of Grade 12. The Student received several graphic, sexually explicit images and videos from the Teacher. No messages accompanied the images or videos, and they did not discuss the materials at school.  

At all times, the Teacher was in a position of trust with the Student. At school, the Teacher asked the Student if he would like to come back to his house to experiment. One time, the Teacher asked if he and another student wished to gain experience and have a foursome with the Teacher and his boyfriend. The Student perceived that the Teacher wanted to have sexual relations with him. The Teacher was ultimately arrested on multiple charges and lost his employment as a result. 

Following a jury trial in April 2024, the Teacher was convicted of making sexually explicit materials available to a child contrary to s. 171.1(1)(a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, and sexual exploitation (“child luring”) contrary to s. 153(1)(b) of the Criminal Code. The Teacher did not testify at trial, or express remorse for his behaviour.

In a victim impact statement, the Student disclosed that because he felt comfortable with the Teacher, he shared personal information about himself (including uncertainty about his sexuality). As he got closer to the Teacher, he was taken advantage of. He felt violated by the Teacher’s conduct and the knowledge that he was taken advantage of. The Student conveyed that he hoped the Teacher would get help.  

The Teacher abused his position of trust, using sexually explicit materials to lure a vulnerable student (who was struggling with his sexuality) to have sexual relations with him. The Crown sought a three (3) year penitentiary sentence to reflect the principles of denunciation and deterrence, given the aggravating factors in the case.    

Cause of Action

The Court was tasked with determining the facts upon which the jury reached the verdicts of guilt beyond a reasonable doubt, together with a fit, just and proportional sentence.

Legal Issue

Given the primary criminal sentencing objectives of denunciation and deterrence for sexual offences against children, what was a just, fit and proportional sentence in the circumstances?

Decision

Based on the evidence, the Court was satisfied beyond a reasonable doubt that while in a position of trust, the Teacher incited the underage Student for sexual purposes by inviting the Student to attend his home and have sexual relations with him and others. 

The Court found that the Crown’s proposed 3 years in jail was reasonable in the circumstances, even after considering the principle of restraint and mitigating factors highlighted by the Defence. Balancing the relevant aggravating and mitigating factors (and considering the totality of circumstances together with sentences imposed on similar offenders for similar offences committed in similar circumstances) the Court sentenced the Teacher to 36 months in jail. 

The Teacher was required to provide a DNA sample, as both counts were primary designated offences. Pursuant to s. 490.012 of the Criminal Code, the Teacher was required to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for 20 years.   

Reasons

Principles of Sentencing

According to the sentencing principles set out in section 718 of the Criminal Code, the fundamental purpose of sentencing is to protect society, contribute to respect for the law, and maintain a just, peaceful and safe society by imposing sanctions that promote denunciation, deterrence, rehabilitation and responsibility. When courts impose sentences for offences involving the abuse of young people (under eighteen years) primary consideration is given to the denunciation and deterrence of such conduct. A sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender.

 R. v. Friesen, 2020 SCC 9 represented a paradigm shift in the approach to sentencing offenders convicted of sexual offences against children, including child luring (Friesen, para 44). The Supreme Court of Canada sent a strong message to ensure that sentences for sexual offences against children were proportionate, reflecting the far-reaching and ongoing harm caused to children, families and society at large (Friesen, para 5). Noting that reports of child luring tripled between 2010 and 2017, the Supreme Court highlighted the dangers of technology in facilitating sexual offences (Friesen, paras 46-49).

 

"The sentence imposed was specifically designed to deter other educators who may be inclined to abuse their position of trust by committing sexual crimes against students."

 

Aggravating and Mitigating Factors

In criminal sentencing, courts consider relevant aggravating and mitigating factors, in the totality of the circumstances of each case, together with similar sentences imposed in analogous cases.

Aggravating features of this case included:

• The Teacher abused a young person under the age of 18;
• He not only abused a position of trust as the victim’s high school teacher (Criminal Code 718.2(a)(iii.1) but did so by taking advantage of a vulnerable student struggling with his own sexuality, increasing the degree of responsibility and gravity of the offence (Friesen, paras 126-133);
• The offences significantly impacted the Student;
• The offences were committed on several occasions over several months when the victim was in Grade 11 and 12, indicating a degree of grooming – particularly aggravating when involving young teenagers discovering their sexuality (Friesen, para 153);
• The victim was a LGBTQ2+ youth and especially vulnerable due to societal marginalization – intentionally targeting vulnerable, marginalized children increases moral culpability (Friesen, paras 73 and 90); and
• The Teacher actively attempted more than once to entice the Student to have sexual relations not only with him but also with his adult boyfriend and another student.

In mitigation, the Court considered:

• The Teacher had no criminal record and lived an otherwise pro-social life;
• He had family support including during trial;
• He spent overnight in custody, the equivalent of two days jail;
• He was on bail for several years without further breaches or offences;
• Although the Student was under age 18, he was an adolescent and not a young child;
• The crimes did not involve direct physical contact;
• Images and videos used to attempt to lure the Student did not involve child pornography but consisted mostly of the Teacher or the Teacher and another adult engaged in consensual sexual activity;
• The Teacher never threatened the Student; and
• There was no evidence suggesting the Teacher ever told the Student not to tell anyone about the incidents.

Breach of Trust

The Court found that the high moral blameworthiness and egregious breach of trust by the Teacher – against a vulnerable student who had specifically reached out to him for advice to navigate his own struggles – made the sexual offences very serious. The Teacher violated his position of trust by engaging in predatory sexual conduct targeting a student for his own sexual gratification. In sentencing, the Court denounced that behaviour in the strongest terms. The sentence imposed was specifically designed to deter other educators who may be inclined to abuse their position of trust by committing sexual crimes against students. The Court noted that the breach of trust was a significant aggravating factor in sentencing.

The Court found that it was not for lack of trying that no physical sexual activity took place. Instead, the Court observed that it was due to the Student’s strength of character that he was able to resist the Teacher’s repeated sexual advances. The highly aggressive behaviour together with the serious breach of trust called for a penitentiary sentence.

R. v. Turgeon, 2025 ONSC 406 (Ontario Superior Court of Justice).

Authored by Anna Zadunayski LLB, MSc. 

Implications and Applications: Canada, We Have a Problem

This past year, Pendulum Law has reported numerous criminal sentencing decisions for Canadian teachers who have sexually abused students (R. v. Strapp, 2024 NLCA 7; R. v. L.F., 2024 ONSC 3307; R. v. Findlay, 2024 MBPC 70; R. v. McKay, 2024 MBPC 82). This list does not include cases under appeal or class actions (EM v. Calgary Board of Education, 2025 ABKB 18). In many cases, social media applications including text messaging and Snapchat have played a role in the abuse (and the resulting conviction).  

We have previously reported the significant increase in Canadian incidents of child luring via social media since 2010 (Friesen, ibid, paras 46-49) as well as incidents of non-consensual distribution of intimate images (NCDII) (R. v. Boucetta, 2024 ONSC 1046) also known as “image based sexual abuse.” Of particular concern for scholastic communities is the use of social media for dissemination of sexual images.   

All professionals know that any sexual communication or relationship with a student – including via social media – is prohibited. While law and policy strictly prohibit this behaviour, reported cases continue. Cases that go to trial represent a small number of actual cases.

While sexual misconduct, abuse of power and breach of trust are age old problems, these recent cases show that there is more work to be done in ending child abuse. Educational leaders must continue to address this problem in a serious way. School boards and professional associations can use these cases to retain experts and guide policy development and implementation, together with continuing professional development. Clear communication with stakeholders about the challenging work that is being done to prevent child sexual exploitation and abuse is essential to creating an educational environment that ensures student safety and protects vulnerable youth.  

Close this case ↑

Facts
Matthews Hall (the School) is a private school in London, Ontario, providing instruction to children from junior kindergarten through grade 8. Founded in 1918, the School is a full member of the Conference of Independent Schools and a fully accredited member of Canadian Accredited Independent Schools (CAIS). The School is overseen by a Board of Governors (the Board), responsible for the establishment and direction of policy for the School. Ric Anderson (the Principal) became Head of School in 2015 and was the Principal, Instructional Lead and Chief Executive Officer of the School.

Each year, the School entered into contracts of instruction with families comprised of an Enrolment Agreement, Financial Handbook, Parent and Student Handbook and Parent Code of Conduct, setting terms and conditions for the provision of education services by the School. Re-enrolment was not automatic, and was completed each year. Re-enrolment packages were typically sent home with students in December, and returned by families in March.

A family (the Applicants) enrolled at the School in 2012. Their second child became school age in 2016 and also enrolled at the School. The parents were doctors. The children were South Asian and Hindi. Each year, the Applicants were provided with a re-enrolment package and re-registered at the School without incident. In 2020, the Applicants did not receive a re-enrolment package. They contacted the School, and were advised that they would need to meet with the Principal to discuss re-enrolment.

In January, the Applicants wrote to the School requesting a meeting. The Principal was away, chaperoning the Middle School ski trip. Despite this, the Applicants demanded a meeting given that time had already been scheduled away from work for parent teacher interviews. The meeting was not possible as requested and was scheduled for February 4, 2020.

On February 1, 2020, the Principal’s wife was admitted to hospital with metastatic cancer. She died on February 4, 2020. On February 14, 2020, the wife of the School gym teacher also died of cancer. It was a difficult time at the School. The Applicants asked to meet with the Assistant Head, but were told that she was unable to meet with them without the Principal, who was on bereavement leave.

The Principal retuned to work on March 4, 2020. That day, the Applicants wrote to the Board about scheduling a meeting to discuss re-enrolment, noting that their daughter was having trouble coping with the uncertainty around returning to the School. In their correspondence they stated:

“For some reason we have not been provided re-enrolment packages by the School this year … Well over a month has passed without a meeting with the School. While we appreciate that Mr. Anderson is going through a difficult time, we are going through difficult time ourselves: our daughter is developing an anxiety disorder from this dismissal from the School … Given the circumstances and Mr. Anderson’s prolonged absence from School this is simply not acceptable.”

Later that day, the Board advised that the issue of re-enrolment would be addressed by School administration, not the Board. The Applicants immediately wrote to the Assistant Head, insisting on a meeting as soon as possible. The Principal responded, indicating that he would lead the meeting after March break, near the end of March. The same day, the Applicants again wrote to the Board, asking that the meeting be expedited. The Board responded that it would not mediate the matter. A meeting was ultimately scheduled for March 31, 2020.

On March 17, 2020, the Province of Ontario declared a state of emergency due to the COVID-19 pandemic. The School was closed. The March 31, 2020, meeting with the Applicants was cancelled. In April 2020, School instruction went online. The Applicants asked for a virtual meeting by Zoom or phone call. The Applicants again wrote to the Board to request a meeting, explanation or apology.

The Principal responded in May 2020 that a meeting would be held once pandemic restrictions lifted. By that time, word had spread that the family was not returning to the School. The Principal wrote:

“… we understand from communication shared with your children’s teachers that you have made the decision to pursue other education options next year. … We appreciate you informing us of your decision and wish you and your children the very best in the future.”

The Applicants still wished to meet to discuss what transpired regarding re-enrolment. The Principal responded that the School would contact the family regarding an exit interview when COVID-19 restrictions were lifted. The Applicants again requested a virtual meeting.

In June 2022, the Principal advised that no meeting would take place. It was “… clear that meeting at this point would serve no useful purpose.” The Principal referenced growing concerns about communication and a vocal distrust of School leadership, indicating the Applicants had made a lack of trust and dissatisfaction clear on multiple occasions.

The family ultimately enrolled in a different school.

Cause of Action
In January 2021, the Applicants filed a complaint (the Application) with the Human Rights Tribunal of Ontario (HRTO), alleging discrimination in the provision of goods, services and facilities on the grounds of race, colour, ancestry, place or origin, ethnic origin and creed contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the Code). The Application alleged discrimination, including systemic discrimination, with respect to discriminatory treatment in failing to receive a re-enrolment package from the School for the 2020-21 school year, and in being denied a meeting with the School concerning same.

The Parents sought monetary compensation in the amount of $100,000 from the School, and $30,000 from the Principal for injury to dignity, feelings and self-respect. The Parents also claimed $25,000 for costs of therapy and counselling for the children.

The School denied that it engaged in any differential or discriminatory treatment, maintaining the decision not to provide a re-enrolment package was based on a slow, building but eventually irreconcilable breakdown in the School-parent relationship (plus infringements of the Parent Code of Conduct) having nothing to do with race or ethnicity. A five-day merits hearing was held in September 2022.

 

"In many cases, discriminatory conduct is subtle, with no direct evidence that race was a factor in the differential or adverse treatment received."

 

Legal Issue
The legal issue was whether the School and Principal discriminated against the Applicants by failing to provide a re-enrolment package and by failing to meet with Applicants.

Decision
The Application was successful. The HRTO found that the discrimination claim regarding failure to receive a re-enrolment package was established.

Monetary Awards
The HRTO ordered the School to pay $75,000 in compensation for injury to dignity, feeling and self-respect, and the Principal to pay an additional $20,000 in compensation for the same injuries, together with pre- and post-judgment interest in accordance with the Courts of Justice Act, RSO 1990, c C.43.

Public Interest Remedies

The School was ordered to hire, at its own expense a recognized human rights expert to conduct a human rights audit and provide in-depth human rights, diversity, equity and inclusion training to the School’s Board of Governors and all administration, teachers and staff. The audit was to include a review of the School’s communication policies, procedures and contingency plans, together with an assessment of whether the School required a social worker for community support and counselling services for students and staff.

The School was further ordered to hire, at its own expense, an independent expert in leadership and communication, to provide leadership, conflict resolution and communication skills training for senior administration and the Chair of the Board. It was the School’s responsibility to provide confirmation of completion of the mandated audit and training within 60 days of completion.

Reasons
Differential Treatment
The analysis of whether discrimination has taken place is contextual, examining the impact of the circumstances on the affected individuals (Shaw v. Phipps, 2012 ONCA 155). In many cases, discriminatory conduct is subtle, with no direct evidence that race was a factor in the differential or adverse treatment received. The HRTO’s role was not to second guess disciplinary decisions made by the School, but to carefully consider the relevant circumstances to determine whether a prohibited ground under the Code was a factor in decision-making (B.C. v. Durham Catholic District School Board, 2014 HRTO 42).

While there was no absolute, free-standing right to education at the School, private schools must provide services in a non-discriminatory manner in compliance with the Code. It was clear, based on the agreement between the parties, the contract of instruction required a meeting about alleged infringements before any disciplinary action (like refusal of enrolment) could be taken by the School. Although the decision to deny re-enrolment was made in the context of various incidents of alleged misconduct, on the specific facts and circumstances of this case, involving a family who had been part of the School for five years, the HRTO was satisfied that procedural fairness (and an opportunity to be heard) should have been afforded.

 

"A monetary award provides compensation for the intrinsic harm – injury to feelings, dignity and self-respect – caused by discriminatory conduct, recognizing that human rights have intrinsic value independent of actual monetary or personal losses suffered by an individual."

 

The Applicants were never provided with an opportunity to meet with the School or respond to allegations. Failure to meet with the family before deciding that their children would not be re-enrolled (unlike other non-racialized families) together with a failure to adequately document concerns, suggested that Code-protected grounds were a factor. This varied approach was evidence of differential treatment on a Code-protected ground.
Difficult circumstances did not account for the failure to meet with the Applicants before deciding their children would not be enrolled. The School’s departure from its own contractual obligations to meet with parents, the arbitrariness of the decision not to re-enrol the children, the lack of credible explanation for continued delay, and the ultimate failure to meet with the Applicants, evidenced differential treatment on Code-protected grounds.

Public Interest Remedy
A monetary award provides compensation for the intrinsic harm – injury to feelings, dignity and self-respect – caused by discriminatory conduct (Arunachalam v. Best Buy Canada, 2010 HRTO 1880), recognizing that human rights have intrinsic value independent of actual monetary or personal losses suffered by an individual. In this case, the HRTO not only held the Principal personally responsible for his part in the discriminatory conduct but, significantly, went on to order public interest remedies – to ensure appropriate supports and contingency planning were available at the School, and to promote the purposes of the Code.

S.R. v. Matthews Hall, 2024 HRTO 680 (Human Rights Tribunal of Ontario).

Authored by Anna Zadunayski LLB, MSc.

Close this case ↑

Facts

The South East Cornerstone Public School Division No. 209 (School Division) proactively reported a privacy breach to the Office of the Saskatchewan Information and Privacy Commissioner (IPC) in August 2023. An unauthorized third party gained access to three IT systems and uploaded data, including personal information, to a cloud storage service. User credentials for an employee who was on a leave of absence were compromised. The incident appeared to be a precursor to a ransomware attack. There was no evidence that the employee’s device was lost or accessed. While no malware was detected, eight ‘archive files’ had been exfiltrated or removed from the network to a third-party cloud storage provider. The School Division estimated that 20,000 people were affected by the breach.  

Cause of Action

The School Division proactively reported the breach to the IPC, which investigated the incident under The Local Authority Freedom of Information and Protection of Privacy Act, SS 1990-91, c L-27.1 (the Act).

Legal Issue

The legal issues included whether the IPC had jurisdiction over the matter, whether the information at issue qualified as ‘personal information’ under section 23(1) of the Act, and whether the School Division responded appropriately to the privacy breach.

Decision

The IPC found there was a privacy breach involving personal information, and that the School Division took appropriate action to contain the breach, notify affected parties and investigate the breach.

The IPC made recommendations to prevent further breaches including: dark web monitoring, credit monitoring, a zero-trust network access solution, an enhanced password policy, a policy for access by staff on leave, a record holdings review (along with retention schedule compliance), and mandatory annual privacy and security training for all staff.  

Reasons

Jurisdiction: Local Authority and Personal Information

The School Division qualified as a ‘local authority’ pursuant to section 2(1)(f) of the Act, giving the IPC jurisdiction to investigate the incident. The Act’s privacy rules apply to ‘personal information’ meaning information about an identifiable individual that is recorded in any form, including information relating to race, ancestry, religion, sex, family status, age, education or employment history, health history, blood type, address, contact information, etc.

While the School Division was unable to definitively determine what information was impacted by the incident (the information inappropriately accessed varied with each affected individual), given the nature of the information the School Division believed was involved, the IPC found that the information qualified as personal information under the Act. As the School Division was a local authority and personal information was involved in the breach, the IPC had jurisdiction to investigate, and determine whether the School Division appropriately responded to the breach.  

Did the School Division Respond Appropriately to the Privacy Breach?

The IPC’s determination of whether the School Division appropriately handled the breach examined the Division’s efforts to:

• Contain the breach;
• Notify affected individuals;
• Investigate the breach; and
• Prevent future breaches.

Upon discovering a privacy breach, an authority should immediately take steps to contain the breach, including:

• Stopping the unauthorized practice;
• Recovering the records;<
• Shutting down the breached system;
• Revoking access; and
• Correcting physical security weaknesses

In assessing efforts to contain a breach, a reasonableness standard applies – including reassurance that the institution has reduced the magnitude of the breach and the risk to affected individuals. In this case, the IPC found that the steps taken by the School Division in response to the breach were appropriate. Regarding the School Division’s plan to prevent future breaches, the IPC made specific additional recommendations.

Recommendations to Prevent Further Breaches

Once an authority contains a breach and identifies a root cause, it is imperative to implement solutions to prevent a future breach. The risk of malware remains high. Authorities must ensure that reasonable measures are in place to address an escalating risk and safeguard increasingly sensitive information that may be breached.

In this case, the School Division used an endpoint detection response tool, deployed immediately when the breach was discovered. The Division also acquired a security operations centre, managed detection and response risk services with a third-party vendor and updated its password policy to a 12-character password (instead of eight). At the time of the breach, the Division required multi-factor authentication for all staff accessing systems off premises. After the breach the Division restricted off premises access to all internal applications.

 

"Once an authority contains a breach and identifies a root cause, it is imperative to implement solutions to prevent a future breach."

 

Given the spate of data breaches involving Canadian school boards in recent years, the IPC recommended the School Division acquire a zero-trust network access solution, update its password policy, implement an access policy for staff who are on leave, ensure mandatory (annual) staff privacy and security training, and review its record holdings and applicable retention schedules to ensure full compliance with Saskatchewan School Boards Association recommendations.

South East Cornerstone Public School Division No. 209 (Re), 2024 CanLII 8316 (SK IPC) (Office of the Saskatchewan Information and Privacy Commissioner).

Authored by Anna Zadunayski LLB, MSc.

Close this case ↑