Page 28 - OSCA Ethical Guidelines - 2009.pdf

Counsellors and the Law
I Guidelines Regarding
Counsellor–Police Relations
Counsellors in most regions of Ontario have excellent working relationships with the various police forces. This co-operation benefits young people. The following statements are offered to assist counsellors in appreciating the parameters of their interaction with the police.
1. To examine school records, the police must present a search warrant.
2. Although it would be rarely appropriate to do so, a principal may deny the police access to the school unless they have come to make an arrest or present a search warrant as a school is legally considered as private property.
3. In relation to young persons, the police or the school should contact the parents before the child is questioned by the police. If necessary, a principal and/or counsellor can act “in loco parentis” by informing the student of his/her rights and can attempt to be present during questioning.
4. Legally, unless a search warrant is presented, the only information a counsellor or student is obligated to give to the police is his/her name and address. Obviously, in most cases, it is appropriate to be as helpful as is reasonable
in the circumstances. It is important nonetheless for a counsellor to determine how the information is to be used.
II Guidelines for Court Appearances
The following suggestions are intended to apply to all levels of courts. When a point is specific to a particular court, it is so stated.
Requests to Testify
Any request that counsellors testify should take the form of a subpoena. Counsellors should insist on receiving subpoenas even in instances concerning which they would willingly appear in court. A subpoena states the time and place to which witnesses are to report in addition to the trial for which they are being summoned.
Preparation for Court
Counsellors should attempt to prepare themselves for examination and cross-examination by anticipating potential questions. Directives should be sought from the legal representative who is responsible for the case. Witnesses
are more likely to be well briefed in relation to civil cases. In criminal cases, the Crown Attorney rarely has time to discuss testimony with witnesses, although an investigating officer for the court is normally dispatched to do so.
In terms of written preparation, it is appropriate to mention that witnesses are not entitled to have notes on the witness stand in courts unless the notes were made contemporaneous with the event.
Court Proceedings
Criminal court proceedings are characterized by a concern for adhering to the letter of the law. Evidence must be substantiated. Hearsay will generally not be considered. Spectators are permitted under normal circumstances.
In Youth Justice Court, the proceedings are more flexible with the aim being to help the child as effectively as possible. The Education Act and The Youth Criminal Justice Act apply in court. If the child pleads guilty, the opinions of those present, including counsellors, may be sought by the judge.
The Child and Family Services Amendment Act may also be applicable. The judge may seek the opinions of those present.
The following specific points pertain to counsellors’ actual attendance in court and testimony:
(a) Often witnesses will have to wait a considerable length of time before being called. Indeed, a subpoenaed witness may not even be asked to testify. Similarly, the case may be remanded and witnesses involved will have to report at the newly scheduled time.
(b) Witness fees are paid although the rates vary.
(c) Counsellors should be judicious about materials they bring to court as any item thought to be pertinent may be requested by the court.
(d) Obviously, it is advisable to be polite and demonstrate a reasonable attitude in giving testimony. Witnesses should under no circumstances argue with the lawyer or the judge. They should take the approach that their intent is to try to be of assistance to the court.
(e) In responding to questions, counsellors are advised to direct their answers to the judge rather than the lawyer posing the questions.
(f) It is permissible for witnesses to ask for clarification if the question posed is too vague.
(g) In giving evidence, counsellors should restrict themselves to what they know or have perceived firsthand unless their opinions are specifically requested.
(h) The following options should be considered by counsellors who are asked to reveal information which they think should be kept confidential:
• Counsellors might briefly explain the reasons for their reluctance to give the information. The judge may decide that confidentiality should be respected.
28 ■ OSCA Ethical Guidelines for Ontario School Counsellors 2010 • www.osca.ca