By Abigail Cukier
Illustration: Kim Rosen
Collette Dowhaniuk has a clear memory of the first time she testified in court. The retired Toronto District School Board principal had been subpoenaed to youth court for a case that involved a student charged with assault. Dowhaniuk was asked to provide testimony about the teenager’s character.
“I was very nervous,” she says. “I expected it to be like an episode of Law and Order.” The reality proved considerably less exciting. “However, Dowhaniuk adds, “It can be confusing. There are a lot of people, and there’s a lot of talking.”
Dowhaniuk, who is now a protective services team consultant for the Ontario Principals’ Council, eventually became comfortable in the witness chair — she was called to the stand six times over her 13 years as a principal. Her experience is not uncommon; increasingly, parents and lawyers are approaching teachers at an ever-increasing rate for information or to testify in custody cases.
“Teachers invariably get caught in the middle, as parents try to outdo each other or prove they are the more involved caregiver,” says Justice Marvin Zuker, a provincial court judge in Toronto and an associate professor at OISE/UT.
This can be stressful for teachers who are drawn into an emotional situation or intimidated by the court process. “Of course, it’s not pleasant to be stuck in the middle of a family conflict that doesn’t concern the school. In fact, parents often take the teaching staff hostage by asking us to take sides,” says Guy Allaire, OCT, principal at l‘École élémentaire catholique des Voyageurs in Orléans, Ont.
To navigate these tough situations, it’s important to know your rights and what to expect. In particularly sensitive cases, like those involving a child’s custody, this knowledge can make all the difference. In these instances, the non-custodial parent is often looking to change the terms of access — so teachers may be asked for evidence around whether a parent is responsible or attends parent-teacher night.
If you do receive a subpoena, what should you do? “First, carefully read it to see what is being asked of you,” says Lonny Rosen, partner with Rosen Sunshine LLP, who routinely represents clients in professional discipline and other regulatory proceedings. Are you being asked to attend a hearing? Produce a record? Go to court with particular documents? “The subpoena will specify what is required.” Next, you should contact your principal to let him or her know that you’ve been subpoenaed, or if you are a principal, alert your school board. “Then, contact your association or federation,” says Rosen, “as they will often provide advice on how to deal with the summons and may support you in the process.”
Check association and federation websites for FAQs and contact information for counsellors or specialists who may be able to offer insight.
When you receive a summons or subpoena, it usually requires you to come to court (or to a hearing or similar process before an arbitrator, board or tribunal) in order to give evidence. The evidence may consist of documents or records in your possession, your personal knowledge, or some combination of the two. “A person who is served with a summons or subpoena is required to attend court as a witness in a proceeding to which they may not be a party,” says Rosen. Given that a proceeding might deal with such subjects as a criminal trial, a custody dispute, a wrongful dismissal claim or a lawsuit over a contract, it’s understandable that most people wouldn’t look forward to the prospect of giving evidence. However, a subpoena engages the court process and changes what would otherwise be a request into a legal obligation to provide information.
If you don’t show up for the proceedings, it’s considered violating a court order and you can face a fine or incarceration, says Eric Roher, national leader of the Education Focus Group at Borden Ladner Gervais LLP
“Teachers and principals have an additional obligation to be professional, co-operative and candid when dealing with the courts.”
Lawyers often contact potential witnesses in advance of a court date, sometimes before and sometimes after issuing a subpoena. “The benefit of this, from the lawyer’s perspective, is that we can find out in advance whether a person’s evidence will be helpful,” notes Rosen. For the person being called to court, he or she can get a sense of what information the lawyer is looking for, too. Rosen advises teachers and principals to be careful, however. “Some of the information lawyers may be seeking — such as student records — can only be provided with a court order or consent of the person to whom the information relates.” He adds, “It’s important to ensure the person requesting the information is authorized to receive it. For example, if there is a custody dispute, it’s possible that a separation or divorce agreement means you wouldn’t be entitled to give information to the non-custodial parent. This means you can’t give this information to his or her lawyer, either. “Without consent or authorization, even if you are served with a subpoena, you are not permitted to provide that information prior to attending the hearing,” cautions Rosen.
Even when you have consent and authorization, it’s important to note that you have no obligation to speak to any of the involved parties before the court proceeding. This is true whether the request for information comes from a parent, a lawyer or someone else involved in the conflict. In short: If you’ve been subpoenaed, you are only required to give evidence in court.
What if you receive a request for a student’s Ontario Student Record (OSR)? Since it’s privileged under the Education Act, a school must have a parent or guardian’s written permission before releasing it. If permission hasn’t been granted in a civil case, the school keeps the record until it receives a court order. In criminal cases, however, the Criminal Code and Canada Evidence Act override the Education Act.
When a school is required to produce a student’s record, it’s a good idea to take a copy of the OSR, along with the original, to court. “The court will usually accept a photocopy,” says Roher, since schools have an obligation to hold on to the originals under the Education Act.
As for your personal notes, they become property of the board and, if they are subpoenaed, you must share them.
“If other students’ names are on the notes, sever those names,” Roher advises. “And, be aware that a parent could access your notes under the Municipal Freedom of Information and Protection of Privacy Act, so be factual and objective.”
It’s possible for teachers to arrive for court at 10 a.m. and wait all day, or not get called at all. To counter this, a board representative can call legal counsel, assure them the teacher will be present in court and ask the lawyer to help identify a specific window of time for the teacher’s appearance. Lawyers can negotiate on the teacher’s behalf, helping to limit the impact of the teacher’s absence on the classroom.
If your presence is required, do your research and prepare yourself before entering this unfamiliar territory. “It’s normal to feel nervous,” Dowhaniuk says. “It’s a good idea to talk to colleagues who have already been through the process.”
If you’re acting as a witness for the board, and you’ve agreed to answer questions before the court appearance, the board lawyer will want to prepare you. This will likely include reviewing previous statements and discussing other people’s testimony, as well as practising answering questions and cross-examination.
Anyone giving evidence has a duty to tell the truth, or risk being liable for perjury. “But teachers and principals have an additional obligation to be professional, co-operative and candid when dealing with lawyers, courts and tribunals since failing to do so could amount to professional misconduct,” says Rosen.
When you testify, be objective and factual. “Although you may have views about which parent is acting in the child’s best interest, it’s not your role to favour one over the other.” He notes that appearances count, so dress neatly and be respectful. “Listen carefully to each question and answer only what you’ve been asked,” says Roher. “And if you don’t understand a question, say so.”
Courtrooms are not the place to stake a claim if you’re not a lawyer. Don’t argue or try to be clever with the judge or lawyer, says Roher. Never speak about other students or comment on an individual’s physical, mental or emotional state. Leave those details to the expert witness.
It’s important to remember that your profession is teaching, not giving testimony. “I don’t recall,” is a perfectly legitimate response when there’s something you genuinely don’t remember. “No one is expecting you to be anything but an educator,” says Dowhaniuk. “You are seen to have expertise that others in the courtroom wouldn’t have,” she notes. “That makes you worth listening to and lends you a great deal of credibility.”