Preliminary Review of Bill 35
For Immediate Release
On March 14, 2023 the Manitoba’s Ministry of Education announced Bill 35, The Education Administration Amendment Act (Teacher Certification and Professional Misconduct). This document sets out salient information following C3P’s preliminary review of the Bill.
How does this Bill proactively keep a child safe?
The purpose of oversight of any profession, including the teaching profession, is to keep people safe. This Bill helps to create a process that is more public, transparent, and accessible to all persons in Manitoba. It provides the opportunity for anyone who is concerned about professional misconduct of a teacher to have an accessible and open reporting mechanism, and for their concerns to be addressed in a more formal manner.
Reporting or disclosing abuse should be barrier free. The current system can be inaccessible, confusing, and difficult to navigate for the public. This may cause concerns to go unreported or undetected. A transparent and accessible system should help to reduce barriers and ensure all concerns are dealt with fairly. This is what ultimately will keep children safe.
All one needs to do is look to examples, many of which were in our research1, and the most recent example of the Winnipeg high school football coach Kelsey McKay, who has been charged with multiple sexual offences against children. There were over 10 complaints about this coach, ending in over 30 criminal charges, dating back to the 1990s, and those complaints are going through the court system right now.2
While transparent processes like this may not always stop the first child from being abused by a teacher, they will help mitigate any subsequent child from being put in harm’s way.
Further, section 8.29(2) and section 8.14(4) of the Bill respectively allow for the Commissioner (in investigations) or the hearing panel (when making hearing decisions) to consider:
- (a) previous decisions not to take further action after a preliminary review under section 8.12;
- (b) previous investigations under this section;
- (c) previous consent resolution agreements under section 8.20;
- (d) previous findings under subsection 8.29(1) or orders under section 8.30;
- (e) disciplinary action taken under this Act before the coming into force of this section.
We believe that this means the Commissioner can consider any past complaints made about a teacher. This can help to identify concerning patterns of behaviour and stop inappropriate conduct before it escalates, and/or it can be used to disrupt abuse.
The vast majority of teachers are not a danger to children. Similar to other environments where children are present, the teaching profession is also vulnerable to attracting individuals with a sexual interest in children. When there are not open and transparent processes in place, these individuals can operate undetected. We see Bill 35 as creating a more open process that we hope will help prevent such individuals from being able to exploit or abuse children and/or disrupt the abuse as early on in the process as possible.
How does the Bill protect due process and fairness?
Currently the system of oversight for the teaching profession is opaque, unclear to the public, and largely managed behind closed doors. Bill 35 sets out rules for a more open and public process by which complaints can be dealt with in a fair and thorough manner. Information about the complaint, investigation, and discipline process will be made publically available and accessible to the public as well as all teachers.
When complaints from the public or reports from teacher employers are made to the Commissioner, the Bill contemplates a preliminary review process, an investigation process, a process by which the teacher may enter into a consent resolution agreement - on consent of all parties (i.e. including the teacher), and provides for hearing panels, when necessary (see part 3 of the Bill). It also permits at several occasions for complaints or reports to be dismissed with no further action if deemed appropriate (s. 8.12(1) & s. 8.19(1)). This screening process helps to ensure complaints are dealt with fairly. This is consistent with regulatory regimes in other professions, and in other jurisdictions where teachers have a more open process in place.
Further, under section 8.35(1) of the Bill, the investigated teacher or the commissioner is permitted to appeal a finding of the hearing panel to the court. Per section 8.35(3) of the Bill, on hearing the appeal the court may dismiss, make any finding that in its opinion ought to have been made, or refer the matter back to the panel for further considerations. Much of the process and procedures outlined in the Bill appear to be aimed at protecting the teacher and their interests, in order to ensure there is due process. Further, the Bill is aligned with the teacher regulation structure in many other provinces (BC, AB, SK, ON).
How does the Bill deal with frivolous, trivial, or malicious complaints?
Section 8.11 of the Bill states that upon receiving a complaint or report, the commissioner must conduct a preliminary review of the matter. Section 8.12(1) of the Bill allows the commissioner, at the early stages, to decide against any further action on one or more of the matters raised in a complaint or a report (from teacher employers) if the commissioner determines that any of the following apply:
- (a) the matter is not within the jurisdiction of the commissioner or a panel;
- (b) the matter is frivolous, vexatious or trivial or gives rise to an abuse of process;
- (c) the complaint or report was made in bad faith or filed for an improper purpose or motive;
- (d) there is no reasonable prospect the complaint or report will result in an adverse finding by a panel;
- (e) it is not in the public interest to take further action;
- (f) the matter has not been pursued in a timely manner.
Section 8.19(1), which applies after the conclusion of an investigation, also states that the commissioner may decide not to take further action on one or more of the matters related to the investigation if any of (a-f) above apply.
Both of these provisions provide explicit protections for teachers to prevent frivolous, trivial, or malicious (made in bath faith) complaints.
To help demonstrate how this may work in practice, consider that in 2021-2022, the British Columbia Commissioner for Teacher Regulation reported3:
69% of matters were reports from teacher employers, 25% were complaints from the public, and 6% were commissioner initiated investigations. Of these reports or complaints:
- 93 (38%) were dismissed after preliminary review
- 120 (50%) had no further action following investigation or other processes
- 28 (12%) had consent resolution agreements; and
- Only 1 hearing that was held, which is less than 1%.
As the British Columbia Commissioner for Teacher Regulation functions, in both scope and practice, very similar to what is currently proposed in Manitoba through Bill 35, we should expect something similar in Manitoba with this legislation.
What is the definition of “professional misconduct” in this Bill?
Professional misconduct is defined in section 8.1 as:
"professional misconduct" of a teacher means conduct that makes them unsuitable to be a teacher, including, but not limited to, the following:
(a) any act concerning a pupil or other child under the teacher's care or supervision that involves
- (i) sexual abuse or sexual exploitation of the pupil or child,
- (ii) sexual misconduct concerning the pupil or child,
- (iii) physical harm to the pupil or child, or
- (iv) significant emotional harm to the pupil or child;
- (b) any act prohibited under section 163.1 of the Criminal Code (Canada) (child pornography);
- (c) conduct that is prescribed by regulation to constitute professional misconduct.
- (a) any act concerning a pupil or other child under the teacher's care or supervision that involves
We believe that a teacher that commits an act against a pupil or other child under their care or supervision that would constitute sexual abuse or exploitation, sexual misconduct, physical harm, or significant emotional harm, or child sexual abuse material offences, should certainly be considered as being guilty of professional misconduct. In fact, we believe this needs to be broadened to include any child, as many teachers may be around children whom are not under their care or supervision, for example, a student in a different classroom. We believe that any of these prescribed acts committed against a child would make a teacher unsuitable to teach, which is the overarching premise of the definition.
If a disciplinary hearing is required, who sits on the hearing panels?
The Bill states that if a disciplinary matter is not resolved by no further action being taken or through a consent resolution agreement4, then a panel is established to hear the matter.
According to section 8.8(1&2) of the Bill, the minister will appoint a roster of person who may act as members of hearing panels. The roster is to be composed of the following:
- four teachers, three of whom have been nominated by The Manitoba Teachers' Society and one of whom is a teacher in an independent school;
- four persons nominated by the Manitoba School Boards Association; and
- four public representatives who are not and have never been teachers.
At the time the matter is to be heard, and a hearing panel is being established to make findings and orders, section 8.24(1-3) of the Bill states that the commissioner must establish a panel consisting of three members of the roster, which must be composed of:
- one member of the panel must be a teacher;
- one member of the panel must a person nominated by The Manitoba School Boards Association; and
- one must be a public representative, who is the chair of the panel.
How is professional competence related to protecting children’s safety?
Professional misconduct relates to any conduct that makes a teacher unsuitable to be a teacher. This includes all forms of abuse, and also competence issues. This is not uncommon - for example, the BC Commissioner for Teacher Regulation also accepts reports about a teachers conduct or competence5.
Regulatory bodies are generally there to protect the public interest by ensuring that those in the profession are carrying out all of their professional duties responsibly. For example, the Law Society of Manitoba also deals with misconduct or competence issues and receives complaints made against all lawyers in Manitoba.
- 1 See Canadian Centre for Child Protection, “Child Sexual Abuse and Victimization by K-12 School Personnel in Canada” (2017), updated (2022), available online: https://www.protectchildren.ca/en/resources-research/school-report/ [2022 Report], see also: https://www.protectchildren.ca/en/resources-research/child-sexual-abuse-by-school-personnel-in-canada-report/ [2017 Report]. ↩
- 2 CBC News, “Winnipeg high school football coach accused of sexual abuse charged with 6 new offences” (14 October 2022) CBC News (webpage) available online: https://www.cbc.ca/news/canada/manitoba/kelsey-mckay-coach-teacher-sexual-abuse-new-charges-1.6616535. ↩
- 3 For information about the BC Commissioner for Teacher Regulation and to see the 2021-2022 data, see: https://www2.gov.bc.ca/assets/gov/british-columbians-our-governments/organizational-structure/boards-commissions-tribunals/bc-commissioner-for-teacher-regulation/ctr_annual_rpt_2021-2022.pdf ↩
- 4 According to section 8.20 of the Bill, a consent resolution agreement is a way to resolve a discipline matter. Consent resolution is when the Commissioner and the Teacher mutually agree on appropriate consequences. These are entered into instead of having a hearing. ↩
- 5 See the following website for information: https://www2.gov.bc.ca/gov/content/governments/organizational-structure/ministries-organizations/boards-commissions-tribunals/commissioner-for-teacher-regulation/complaint ↩