R.S. v. Dufferin-Peel Catholic District School Board, 2008 CFSRB 69

CHILD AND FAMILY SERVICES REVIEW BOARD

R.S.

v.

Dufferin-Peel Catholic District School Board

REASONS FOR DECISION ON MERITS

Date: July 15, 2008

Citation: 2008 CFSRB 69

Indexed as: R.S. v. Dufferin-Peel CDSB (EA s.311.7)

1This is an appeal of a decision of the Dufferin-Peel Catholic District School Board (“DPCDSB” or “School Board”) to expel S.S., d.o.b. September […], 1990, pursuant to section 311.7 of the Education Act, R.S.O. 1990, c. E.2 (“the Act”).

2R.S. (the “Appellant”) is the father of the student and filed an appeal with the Child and Family Services Review Board (the “Board”) on May 5, 2008. He sought to change the decision of the DPCDSB from an expulsion from all schools of the board, to an expulsion from his son’s school only. He was self-represented at the hearing held on June 16, 2008 in B., Ontario.

3On June 17, 2008, the Board released its decision on the expulsion appeal. The Board changed the expulsion decision of the DPCDSB to an expulsion from the student’s school only. The Board also ordered that any record of the expulsion be amended to reflect this change. These are the reasons for that decision.

BACKGROUND

4The pupil, S.S., is 17 years old and in grade 12 at S.M.Y Secondary School in B., Ontario. On February [….], 2008 the pupil forcibly dragged another student, R.J., into his van in the student parking lot outside the school, and held her there against her will. He threatened her verbally and with a knife held to her throat. Ms. R.J. escaped when a Vice Principal, who had been alerted to the incident by passing students, approached the van.

5S.S. was immediately 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 .

The Principal must conduct an investigation under subsection 311.1(1) when a student receives a mandatory suspension. Section 311.1(1) 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.

Subsection 311.1(7) requires the Principal to prepare a report to the school board if, on concluding the investigation, he recommends an expulsion.

6The Principal, T.Y., forwarded his report to the Discipline Committee of the DPCDSB on February […], 2008 which recommended an expulsion from all schools of the board. Witness statement forms were completed by Ms.R.J., the pupil and D.N., another student who witnessed the altercation. The Appellant was notified of the Principal’s recommendation on March […], 2008.

7A meeting of the Discipline Committee of the DPCDSB took place on March […], 2008 to consider the Principal’s recommendation. The Appellant attended, represented by legal counsel. The DPCDSB decided to expel the student from all schools of the board and notified the student by letter dated April […], 2008. No reasons were provided for the DPCDSB’s decision.

8S.S. is currently enrolled in a program for expelled students. He is one credit short of his high school diploma, and is not permitted to attend summer school because he has been expelled from all schools of the DPCDSB.

9The Appellant and his son agree to all the facts as described by the DPCDSB. They admit the student committed the infraction of possessing a weapon, or using a weapon to cause or to threaten bodily harm to another person, and that the infraction occurred at school.

10In this application, the Board must determine whether S.S. should be expelled from his school or all schools of the school board.

ANALYSIS

11The facts were admitted, and the panel finds that the pupil threatened another student with a weapon. This infraction is listed under s.310(1)1 and 2 in the Act as an infraction which causes an automatic suspension, and may lead to expulsion. In determining whether an expulsion is appropriate, and if so whether from one school or all schools of the board, both the school board and this Board must consider the “mitigating factors” and “additional factors” listed in sections 2 and 3 of Regulation 472/07.

The Gravity of the Infraction

12The “gravity” of the infraction is not specifically listed as a criterion in determining the appropriate response by a school or school board. Rather, section 310 lists infractions that are prima facie serious enough that they entail an automatic suspension, and the possibility of expulsion. The Act assumes that listed infractions are always serious enough for a suspension; however they may not always be serious enough for an expulsion, or for an expulsion from the entire school board. That determination is made following a consideration of the “mitigating” and “other factors”. The DPCDSB and this Board must then consider those factors in determining whether expulsion from one school, or the maximum penalty of expulsion from all schools of the board, is appropriate in this case.

13The DPCDSB argues that the incident is extremely serious, and led evidence that the victim was traumatized. Other students witnessed the incident. The police were called. It appears to have been related to a relationship break-up, which had earlier required school staff counselling S.S., in an attempt to have him deal with his frustrations in a positive way. There is no question that violence against women is an extremely serious societal problem; it is well established that the most common perpetrators of violence against women are their partners.

14The Appellant did not deny the seriousness of the incident. The panel agrees that the infraction is extremely serious.

15However, the evidence before the Board demonstrates that the decision to expel S.S. from all schools of the school board was made solely on the basis of the seriousness of the incident. T.Y. testified that because the infraction was specifically listed in the Act, he had no choice but to recommend an expulsion from all schools. It is unclear to the Board the basis upon which the school board made the decision to expel S.S. from all schools because no reasons were given. In the absence of reasons, the Board can only presume that it too was based on the seriousness of the incident.

16In the Board’s view, the seriousness of the infraction does not, on its own, determine what discipline should be imposed. To impose an expulsion solely on this basis defeats the purpose of the recent amendments to the Education Act. The amendments, which came into effect on February 1, 2008, set out a clear process for the imposition of student discipline.

17Where a student commits an infraction under section 310(1), the student must receive an immediate suspension. This is because all of the infractions are, by definition, serious. An expulsion, however, is not automatic. It must take place only after the principal and the school board have considered the mitigating and other factors. Although not stated directly in relation to the “other factors”, it is the Board’s view that the mitigating and other factors operate to reduce either the seriousness of the infraction or the appropriateness of the discipline in light of the student’s history and/or particular circumstances surrounding the infraction.

18Under section 2 of Regulation 472/07, the following mitigating factors must be taken into account by the Board in an appeal:

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

19There was no evidence that S.S. 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.

20The Appellant argued that the pupil did not understand he would be suspended or expelled for this behaviour. He also opined that if violence against women is such a serious society problem, the school should be teaching this to the students.

21In our view, this argument does not respond to the purpose of this mitigating factor. The panel must consider whether the pupil has the ability to understand the foreseeable consequences, which addresses mental competency. Examples of factors that may affect a pupil’s ability to understand are mental health issues, cognitive disabilities or possibly the age of the pupil. The question is not whether the pupil was aware of legal consequences, or school-related punishment for a particular act. There was no evidence that S.S. does not understand the foreseeable consequences of his behaviour.

22In any event, that one should not threaten another human being with a weapon, and forcibly confine her in a van while uttering threats, is not something that must be specifically taught in school, before one should be expected to understand its consequences.

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

23The Appellant accepts that S.S. should be expelled from his home school.

24The evidence before the panel is that S.S. had no problems with any other students, apart from Ms.R.J.. The incident took place as part of a series of interactions between two students involved in a personal relationship, and the problem appears to have been limited to between these two individuals.

25G.W., Vice Principal, testified that she feels the pupil posed a risk to Ms.R.J., but could not say for sure whether he posed a risk to other students in the school. She commented upon S.S.’s behaviour on leaving counselling sessions with the school’s Child and Youth Worker (“CYW”). She testified that he consistently used the “right words” at the sessions, and appeared compliant. He would appear grateful and thankful for the sessions, and reiterated the “coping strategies” presented to him as a positive way to react to a relationship breakup. However, Ms. G.W. testified that he would do an “about face” as soon as he left, and reject all the support and counselling he had appeared to accept. She testified that her fear is that S.S. may demonstrate a similar pattern of behaviour later, in another relationship. Using a weapon and confining a woman is an extreme reaction, revealing more than just anger on the part of the student.

26While we agree that S.S. did not implement the strategies suggested to him at the CYW counselling sessions, the school nonetheless never had problems with violence regarding S.S. before. His file shows only truancy and under-achievement issues in the past.

27The panel finds there is no evidence to suggest that S.S. would pose an undue threat in any school other than his home school.

28Under 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

29The pupil has no disciplinary history for violent incidents. This is the first infraction of this nature. As stated above, the student’s disciplinary history relates to truancy.

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

30Ms. G.W. testified that she had earlier interaction with S.S. with respect to his relationship with Ms.R.J.. On February […], 2008 she was called to the Principal’s office. Ms.R.J. was in the office because S.S. had threatened suicide following their break-up. She was also upset because he had been calling her home and threatening to damage her family’s property. As a result, the Vice Principal spoke with the Appellant regarding his son, and offered voluntary counselling appointments with the Child and Youth Worker on staff, Mrs. L.. The school did not impose any discipline for the threats made by the pupil to another student’s family property.

31S.S. attended counselling sessions with Mrs. L. on February […],[…],[…] and […], 2008. These sessions involved conversations about S.S.’s behaviour and were to provide S.S. with strategies to deal with the break-up with Ms.R.J. in a positive way. S.S. decided on February […] that he no longer wished to attend.

32S.S. was instructed by the Vice Principal not to have contact with Ms.R.J., and to let the school know about any contact with her. Ms. G.W. testified that, because it was a personal matter and “outside school”, the school could not present S.S. with consequences if he did not comply with the instructions. The evidence before the Board showed that both Ms.R.J. and S.S. continued to contact each other despite being instructed not to.

33Mr. T.Y. also testified that he had several brief, informal discussions with S.S. between February […] and […], as well as discussions with the Vice Principals, to remain informed of the situation with S.S.. He considered the matter a relationship problem up until February […], and wanted S.S. to feel supported.

34The DPCDSB argued that the CYW counselling, meetings between the Principal and Vice-Principals, and conversations with S.S. and his father resulting from the February […] incident should be considered “progressive discipline”.

35When the question was put to Mr. T.Y., he described the school’s past interactions with S.S. to have involved “progressive support” measures, rather than “progressive discipline”. He also testified that, given the emotional turmoil the pupil was going through, they felt the best program for him would be the one offered for expelled students at A.R., which includes intensive, mandatory counselling.

36The panel does not agree that the counselling sessions and informal follow-up with this pupil constitute progressive discipline. They were voluntary and involved no consequences for the pupil’s failure to follow through with commitments to change his behaviour. The panel finds there has not been progressive discipline used with this pupil.

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.

37Neither 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.

38The DPCDSB presented evidence that S.S. has done well in the program for expelled students at A.R., having obtained three credits.

39S.S. was taking four courses when he was suspended. One of them, a computer-related course, could not be completed at the program. S.S. therefore continued on with three courses, obtaining a credit for each of them. The last credit could be obtained at summer school, however, S.S. was unable to attend summer school because he was expelled from all schools of the DPCDSB. He could, however, make up the last credit through independent, on-line study over the summer.

40Witnesses for the DPCDSB testified that the program for expelled students involves mandatory counselling, which they feel would be in the best interests of S.S.

41The Appellant is concerned about S.S.’s peers at the program for expelled students. He argues the other students present a negative influence on learning.

42The Appellant argued that S.S. has been provisionally accepted to three different Colleges, starting in September 2008. If he is unable to obtain his last remaining credit over the summer, he will not be able to enter school in the fall. The Appellant believes that the self-study option for S.S.’s last credit is a poor one, as he believes there would be little learning involved, and little chance of the pupil’s success, without a teacher/student relationship.

43While S.S. has been provided with ongoing education, the panel finds that in the unique circumstances of this case the expulsion from all schools of the board does have a negative impact on the pupil’s ongoing educational opportunities. Since the pupil requires only one further credit to graduate, and he is prohibited from attending summer school, an expulsion from all schools of the board has an additional punitive impact on this student.

44While the mandatory counselling sessions at A.R. were no doubt an educational benefit to S.S., this should not be the basis upon which to expel a student from all schools of a school board. Counselling could have been made mandatory and arranged through other avenues, without resorting to the maximum punitive step of expelling the pupil from all schools of the board.

5. The age of the student

45S.S. is a seventeen year old student who is old enough to understand the seriousness of his behaviour. The Board finds that the age of the student has no mitigating effect.

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

46S.S. does not have an individual education plan and this factor does not apply to him.

CONCLUSION

47In applying the mitigating and other factors, and in particular given that the pupil’s presence in other schools does not pose an unacceptable risk, and that he needs only one credit to finish high school which will likely be completed over the summer, the Board finds the penalty to be applied for this very serious incident should be reduced to an expulsion from the pupil’s school only.

Gail Gonda

Presiding Member

Heather Gibbs

Panel Member

Jennifer Scott

Panel Member