K.C. v. Rainbow District School Board, 2008 CFSRB 43

CHILD AND FAMILY SERVICES REVIEW BOARD

K.C.

v.

Rainbow District School Board

REASONS FOR DECISION ON MERITS

Date: May 7, 2008

Citation: 2008 CFSRB 43

Indexed as: K.C. v. Rainbow DSB (EA s.311)

INTRODUCTION

1This is an appeal of a decision of the Rainbow District School Board (“RDSB”) to expel D.C., date of birth February […], 1992, pursuant to section 311.3 of the Education Act, R.S.O. 1990, c. E.2 (“the Act”).

2The Applicant is the father of the student and was self-represented during the appeal hearing. The position of the Applicant is that there is no supporting evidence that his son, D.C., was trafficking an illegal drug and that no transaction involving drugs occurred. The Applicant seeks to have the decision of the RDSB to expel his son from all schools in the board overturned, and to have his son returned to another school in the school board.

3It is the position of the RDSB that the Principal personally observed the illegal exchange of drugs taking place and that D.C. was trafficking in illegal drugs. The RDSB is seeking to have the expulsion of D.C. from all schools in the board upheld.

4D.C. was suspended under section 310(1) of the Act, which states that:

A Principal shall suspend a pupil if he or she believes that the pupil has engaged in any of the following activities while at school, at a school-related activity or in other circumstances where engaging in the activity will have an impact on the school climate:

1. Possessing a weapon, including possessing a firearm;

2. Using a weapon to cause or to threaten bodily harm to another person;

3. Committing physical assault on another person that causes bodily harm requiring treatment by a medical practitioner;

4. Committing sexual assault;

5. Trafficking in weapons or in illegal drugs;

6. Committing robbery;

7. Giving alcohol to a minor;

8. Any other activity …

5The Principal must conduct a mandatory investigation under subsection 311.1(1), which states that:

When a pupil is suspended under section 310, the Principal shall conduct an investigation to determine whether to recommend to the board that the pupil be expelled.

6Under subsection 311.3(1), if a Principal recommends to the school board that a pupil be expelled, the board shall hold an expulsion hearing and, for that purpose, the board has the powers and duties specified by board policy.

7The RDSB’s statutory authority to expel a student comes from subsection 311.3(6) of the Education Act, which states that:

After completing the hearing, the board shall decide,

(a) whether to expel the pupil; and

(b) if the pupil is to be expelled, whether the pupil is expelled from his or her school only or from all schools of the board.

8In this application, the Child and Family Services Review Board (the “CFSRB”) must determine the following issues:

A. whether the student committed the infraction of trafficking in illegal drugs

B. whether the infraction occurred at school, at a school related activity or affected the school climate

C. whether D.C. should be expelled from his school or all schools of the RDSB.

9Several preliminary issues were raised. The RDSB had included a police report in their submission. The RDSB argued that the report contained factual information and a witness statement that B.B., the Principal, will testify to. The Applicant argued that inclusion of the police report will violate the rights of the young offender. The CFSRB ruled that the police report will not be admitted. B.B. is available to testify in person and the police report is not necessary. An issue involving the application of the new legislation, which came into effect on February 1, 2008, was raised. D.C. was suspended on January […], 2008 and his expulsion occurred on February […], 2008. The RDSB stated that the change in legislation had no effect since the key infraction, the trafficking of illegal drugs, is the same. The mitigating factors in the new legislation did not affect this case since the RDSB considered mitigating factors in this expulsion. The RDSB noted that they did not follow three items in their Policy and Procedures Manual (Alternative Suspension Program, Planning Meeting, Student Action Plan). The policy was created to address the new legislation. The RDSB did not have time to implement this policy in D.C.’s case since these items would have been implemented during the suspension stage, which occurred before the policy was created. The CFSRB ruled that since the expulsion occurred on February […], 2008, the new legislation applied.

BACKGROUND

10D.C. is a grade ten student at school. On the morning of January […], 2008, B.B., the Principal, observed from a second floor window an exchange between D.C. and another student. The two students were taken to the Principal’s office and searched. Packages of marijuana, a pipe and a five dollar bill were found in the coat pocket of D.C. D.C. was suspended and after a Principal’s investigation and a school board hearing, he was expelled from all schools in the board. He is currently enrolled in a program for expelled students.

ANALYSIS

11The matter proceeded by way of a hearing de novo. The Applicant did not call any evidence. The Respondent called B.B., the Principal, and J.B., the Vice Principal. In arriving at a decision, the CFSRB must consider the following issues:

Issue A: Whether D.C. committed the infraction of trafficking in illegal drugs

12B.B., the Principal, testified that on January […], 2008 at 8:40 a.m., he observed D.C. walking away from the school up a small hill at the back of the school. He was looking out a second floor window and had a clear view of D.C. who was approximately 65 to 75 feet away from him. Over the next few minutes, he observed another student approach D.C. who was standing on the small rise. The two students huddled together less than a foot away from each other. The Principal had a side view of the two students. He saw D.C. reach into his coat, open a pocket, exchange something with the other student and put something back into his pocket. The two students immediately walked back towards the school. The Principal walked to the stairwell to meet the students, opened the door, which was locked from the outside, and asked them to accompany him to the office. They were surprised to see him and had a look of alarm. On the way to the office, the Principal could not keep his eyes on the two students the whole time since there were other students in the hallway and he was interrupted by teachers. The Principal stated that though he did not see them discard anything, it is possible that items were discarded during this walk.

13The Principal brought the two students to his office and asked J.B., the Vice-Principal, to accompany him. He informed the students that he believed that an exchange of drugs had occurred and he was going to search them. D.C. debated whether the Principal had the right to search him. The Principal said he had that right under the Education Act. The Principal told D.C. that he, the Principal, could call the police to supervise the search or D.C. can consent. D.C. consented to the search. The Principal searched the jacket and found a zip lock bag with eight individually wrapped, heat-sealed packages of marijuana, another bag with a small amount of loose marijuana, a five dollar bill and a pipe. D.C. confirmed that the content of the packages was marijuana; the police later confirmed that it was marijuana, and the Principal from his experience confirmed that it was marijuana.

14According to the Principal, D.C. claimed that the drugs were for personal use and that he found the five dollar bill on the bus that morning. D.C. said he could provide the names of people who can vouch that he found the five dollar bill, but later said he could not think of the names. The Principal surmised that the five dollar bill could have been payment for a package of marijuana. The Principal believed that D.C. was trafficking because the drugs were prepared in heat-sealed individual packages and that if it was for personal use, it would not be in that quantity or prepared in that way.

15While cross examining the Principal, the Applicant raised some points. The Vice-Principal did not find drugs on the other student during the search. If the student had purchased drugs from D.C., he should have it on him. There is the possibility that the other student sold drugs to D.C. The bags of marijuana were heat-sealed, but there is a possibility that they were purchased that way.

16The Applicant also raised the issue of the Principal’s use of glasses. The Principal stated that he was not wearing his glasses at the time of the incident. He uses prescription glasses for distance, but glasses are not required for driving. He does not normally wear glasses and only wears them for computer use or driving long distances.

17Based on the evidence, the CFSRB finds that on the balance of probabilities, D.C. was trafficking in illegal drugs. There was a large amount of marijuana found on D.C., too large to be for personal use. There were possibly eight to twelve grams according to the Principal. The packages were heat-sealed. It is unlikely they would be heat-sealed if they were for personal use. The contents of the packages were confirmed to be marijuana by D.C., by the police and by the Principal. The CFSRB believes that the Principal did witness an exchange, that he could see the incident clearly at that distance without his glasses, and that D.C. was the one trafficking the drugs. Even though drugs were not found on the other student, the student had the opportunity to discard it on the way to the office. Although the Applicant raises some other possibilities, he did not present any evidence or testimony from witnesses to substantiate the other possibilities.

Issue B: Whether the infraction occurred at school or at a school-related activity

18The Principal testified that the incident took place on the rise at the back of school property. This was not disputed by the Applicant.

19The CFSRB finds that the incident took place at school.

Issue C: Whether D.C. should be expelled from his school or all schools of the RDSB

20Under section 2 of Regulation 472/07, the following mitigating factors must be taken into account by the CFSRB on the appeal:

1. The pupil does not have the ability to control his or her behaviour.

There was no evidence that D.C. does not have the ability to control his behaviour. Therefore, this factor does not apply to him.

2. The pupil does not have the ability to understand the foreseeable consequences of his or her behaviour.

There was no evidence before the CFSRB that D.C. does not understand the foreseeable consequences of his behaviour.

3. The pupil’s continuing presence in the school does not create an unacceptable risk to the safety of any person.

The Principal indicated that trafficking is a very serious offence in the school. It leads to soliciting, buying and selling of drugs, drug use in the school, and inappropriate behaviour. It also introduces an element of criminality to the school and the use of marijuana is a gateway to harder drugs. The CFSRB finds that D.C.’s continued presence in the school does create an unacceptable risk to the safety of students at the school.

21Under Ontario Regulation 472/07 section 3, the following additional factors shall be taken into account if they would mitigate the seriousness of the activity for which the pupil may be or is being suspended or expelled:

1. The pupil’s history

D.C. is part of a magnet program called Science and Technology Education Program whose students are bused in from the entire board. He needed an average of 75% to get into the program and must maintain good grades. Since attending school, D.C. has not been maintaining the grades to remain in the program. His attendance has been poor with 58 unexcused period absences and 13 lates. The Principal noted the pattern of lates particularly in the week preceding the incident. D.C.’s Ontario Academic Record was also reviewed.

2. Whether a progressive discipline approach has been used with the pupil.

Progressive discipline was used with D.C. He was suspended for three school days for smoking on school property on September […], 2006. He was suspended on May […], 2007 for ten school days for fighting at school. D.C.’s attendance summary shows two in school suspensions dated November […], 2007 and November […], 2007.

3. Whether the activity for which the pupil may be or is being suspended or expelled was related to any harassment of the pupil because of his or her race, ethnic origin, religion,

disability, gender or sexual orientation or to any other harassment.

Neither party presented any testimony or evidence that harassment was an issue in this incident.

4. How the suspension or expulsion would affect the pupil’s ongoing education.

D.C. is currently enrolled in the program for expelled students. The CFSRB finds that trafficking in drugs is a serious offence and that it is in the best interests of D.C. to attend the expelled students’ program which provides counseling and other support services.

5. The age of the student.

D.C. is a sixteen year old student. The CFSRB did not find that age was a mitigating factor in this case.

6. In the case of a pupil for whom an individual education plan has been developed.

D.C. does not have an individual education plan and this factor does not apply to him.

22The CFSRB applied the mitigating factors and did not find any mitigating factors that would mitigate the seriousness of trafficking in illegal drugs at school.

SUMMARY

23The CFSRB finds on the balance of probabilities that D.C. engaged in trafficking in illegal drugs while at school.

24The CFSRB did not find any mitigating factors that would impact the expulsion of D.C. from all schools in the board.

25The CFSRB finds that the RDSB’s omission of the three items in their Policy and Procedure Manual did not impact this case. The policy was not in effect when D.C. was suspended.

DECISION

26The CFSRB upholds the decision of the Rainbow District School Board to expel D.C. from all schools in the board.

Wendell White

Presiding Member

Ruth Ann Schedlich

Panel Member

Mary Wong

Panel Member