Interesting case about a teacher having sex at a party with a student from her school, and whether he was under her authority at the time. Provides an excellent example of what one Canadian has called "a way to cheat at statutory interpretation" https://twitter.com/LawLibraryVic/status/1199934400135409664

First, some context. The boy was 16 and in year 11 in 1993, the accused was 27. There's no evidence that she ever taught him.

The sex happened at an end of year 12 party to which the teacher appears to have invited herself. Here's how that's described by the teacher's then girlfriend, TRB (the teacher is 'the applicant')

Here's the description of the offending

The boy committed suicide in 1999 (the offending occurred in 1993 and he graduated in 1994). There's no suggestion the suicide was linked to the offending, but it did prompt the accused to call TRB to say as much.

Seventeen years later, TRB reported the offending, because the accused was still teaching.

The teacher was charged with taking part in an act of sexual penetration with a 16 year old child who was under her care, supervision or authority.

When it came to court, the accused asked the judge to "permanently stay" the charge, which means the whole thing would be abandoned and never go to trial. Judges do this when the failure of the prosecution is inevitable.

Why would this case be inevitably doomed to fail? Because, the teacher argued, the evidence couldn't establish a key element of the offence - that the boy had been "under her care, supervision or authority" (authority being the only concept invoked for this case).

The trial judge refused to stay the case, and the teacher appealed this decision to the court of appeal.

Broadly, the applicant argued that the simple fact of being a teacher at the boy's school didn't mean that, at the time of the offending, he was under her authority. They'd had no real contact at the school.

The court of appeal split on this issue, 2 judges voting to let the case proceed, while the other would have shut it down.

The case turned on a question of statutory interpretation - what is the exact meaning of the statute's language regarding the boy being "under her authority"?

So, before we go through the judge's reasons, let's see what a particular Canadian law professor has to say about statutory interpretation. Check out the title on this article http://aix1.uottawa.ca/~resulliv/legdr/pmr.html

Among the article's many excellent points, it shows how often judges have a choice about exactly which words to fix on and reason about, and that these choices can be determinative and are not compelled.

In my view that's exactly what happened in this case. The judges who opted to let the case go ahead? They banged on about the meaning of "authority".

The judge who would have canned it? He focused more on the word "under".

They don't always reason explicitly in those terms, but nevertheless I think that's what is really going on here. The majority judges focus more on the status of being a teacher and what this might mean going forward, the minority focuses on the actual relationship at the time

Worth noting, in closing, that even the majority think this will be a hard case to prove.

(also worth noting, as @jeremy_gans pointed out earlier, TRB was the boy's girlfriend, not the teacher's. would edit that tweet, but can't obvs)

Anyway, in my view there's a real question about the public interest in prosecuting this case. Is the teacher a predator from whom her students need to be kept safe? Does this particular single act from nearly two decades ago need the criminal law's intervention?

Is there any basis for suggesting that real damage or harm resulted from it? Or is that rightly, strictly irrelevant, given some need to fully isolate students from any sexual activity with anyone who works at their school?

Either way, I guarantee you this proceeding is seriously fucking up the life, career, and relationships of the accused, probably plunging her into huge debt and probably ending her teaching career.