H.K. v. Durham CDSB, 2008 CFSRB 77

CHILD AND FAMILY SERVICES REVIEW BOARD

H.K.

v.

Durham Catholic District School Board

REASONS FOR DECISION ON MERITS

Date: August 11, 2008

Citation: 2008 CFSRB 77

Indexed as: H.K. v. Durham CDSB (EA s. 311.7)

1This is an appeal of a decision of the Durham Catholic District School Board (“DCDSB” or “School Board”) to expel L.K., d.o.b. July […], 1994, from all schools of the School Board pursuant to section 311.7 of the Education Act R.S.O. 1990, c. E.2 (the “Act”).

2H.K. (the “Appellant”) is the father of the student and filed an appeal with the Child and Family Services Review Board (the “Board”) on June 6, 2008. In the application to appeal, he asked the Board to overturn the decision of the DCDSB and reinstate L.K. to his school. He was self-represented at the hearing held on July 9, 2008 in Oshawa, Ontario.

3On July 16, 2008, the Board released its decision on the expulsion appeal. The Board quashed the expulsion decision of the DCDSB and ordered L.K. reinstated to his school. The Board ordered that the record of the expulsion be expunged from L.K.’ school record. These are the reasons for that decision.

BACKGROUND

4At the time of the incidents leading to his expulsion, L.K. was a thirteen-year-old student in Grade 8 at School (the “school”) in A., Ontario. He had been at the school since junior kindergarten.

5For many years, L.K. had difficulty fitting in socially at school and had been somewhat isolated from his peers. He connected with a small group of students that he called his “angels”. Since grade six, L.K. talked about harming himself with a few students at the school. There is no evidence that he actually engaged in self-harm. It is unclear whether he had these conversations in an attempt to “fit in” or to get sympathy or whether he seriously considered cutting himself. Although L.K. denies these conversations, for the reasons set out below, the Board does not accept his evidence.

6On April […], 2008, L.K., identified as “E.”, had the following MSN exchange with another student at St. F., A.R..

E.: “well you and everyone else only has a minimal amount of time left”

E.: “remember that”

A.R.: “in my eyes hes prince charming <3 says:

A.R.: “are you seriously sitting there threatening me”

E.: “no”

E.: “i’m telling you”

E.: “i’m not trying to threaten you”

E.: “sorry if it seems like that”

E.: “but that’s the way it is….”

E.: “i guess”

7It would appear from the MSN transcript that the following reply from A.R. was not delivered:

A.R.: “in my eyes hes prince charming <3 says:

“umm ya.. well im not going to sit here and talk to someone who is saying how they are going to kill me… I was trying to help you

8In his evidence before the Board, L.K. testified that he did not have this MSN conversation with A.R. and that it was a “cut and paste” job by someone else. When asked why someone would do this, he replied that people were jealous of him because he is smart and good in math and that there was a conspiracy against him. L.K. conceded that his testimony during the expulsion hearing before the School Board was different and inconsistent with the evidence given to this Board. In that prior hearing, L.K. admitted to having the conversation with A.R., but stated it was taken out of context because it involved a conversation about a book and was not a threat.

9A.R. testified that she and L.K. spoke often on MSN. She said L.K. always showed up as “E.” on MSN. B.M. supported this evidence. B.M. testified that she and L.K. also talked on MSN. B.M. stated L.K. would appear as “E.” or “K.”. She indicated that “E.” means someone who is emotional and engages in self-harm.

10A.R. agreed that the MSN conversation between herself and L.K. occurred in the context of talking about a book. She stated that L.K. explained the book to her and said it was his master plan that before he died, he wanted to kill the people around him. A.R. conceded during cross-examination that it was possible that L.K. was playing a game that went too far in his MSN conversation with her. A.R. did not report this incident to the school until April […], 2008, some four weeks later.

11On April […], 2008, A.R. was sent out to the playground after recess by her Grade 8 teacher Mr. C. to retrieve L.K.. Often L.K. would not come into the school when the bell rang, but rather, waited until one of a few select girls in his class came to get him. It appears that his Grade 8 teacher, Mr. C., attempted to manage this behaviour with the assistance of some students. The Board notes that Mr. C. was not a witness and not in a position to explain his actions.

12When A.R. approached L.K. on that day, he talked about taking someone hostage. He took what she believed to be a pocketknife from his pants pocket. She was not certain that it was a knife because there was no blade exposed. L.K. played with the object and then put it away. A.R. testified that L.K. did not talk about killing her or anyone else. A.R. said she was very frightened by this incident. A.R. did not report this incident to any of the teachers at the school. She did tell her friend S.M. as well as her friend B.M., her mother and her sister.

13On April […], 2008, Mr. C. sent S.M. out to the schoolyard to talk to L.K. just after recess. S.M. and L.K. were good friends and had gone to school together since kindergarten.

14S.M. testified about her friendship with L.K.. She said that they talked when L.K. had a bad day. In some of these conversations, L.K. told S.M. that he cut himself. He also told S.M. that he was tired of being alone with no one to talk to and that he cut himself to control the pain. S.M. said that L.K. had put a picture of a cut arm on MSN, but that she did not know if it was his arm. S.M. stated that she placed bets with L.K. over how long he could go without cutting himself. Although L.K. talked to S.M. about self-harm, she had never seen cuts on L.K.. S.M. testified that L.K. had been bullied at school when he was younger and that now he just wanted to be left alone.

15When S.M. was sent out to get L.K. on April […], 2008, he told her that she was helping him stop cutting himself. S.M. believed him but didn’t know for sure. S.M. told L.K. that she wanted to continue to help, but was running out of ideas. L.K. then pulled out a pocketknife from his pants, with the blade exposed. He repeated that S.M. was helping him stop cutting himself. S.M. felt very badly for L.K. and testified that she did not feel threatened by this conversation or by the knife.

16A.D. testified that L.K. showed her a razor blade at school that had been wrapped in paper in his wallet in April 2008. She didn’t believe L.K. would use it to hurt others, but believed he would use it on himself. She also said L.K. talked about committing suicide and once threatened to jump off the [ ] bridge. A.R. corroborated this testimony when she indicated that L.K. told her that he wanted to jump off a bridge, however, he did not identify the bridge.

17Over the weekend following the April […] and […] incidents, S.M. and A.R. spoke. They decided to tell Mr. C. about the knife on Monday. S.M. went to Mr. C. because she believed she could no longer be the sole reason for preventing L.K. from cutting himself. She felt she could no longer handle the situation on her own. A.R. testified that she had to convince S.M. to go to Mr. C. to report what had happened.

18B.M. gave evidence at the hearing. She testified that she spoke to L.K. on MSN and sometimes through text messaging. They talked about self-harm. B.M. testified that L.K. told her he had a razor blade in his pocket, but did not show it to her. L.K. also told B.M. he felt lonely at school. B.M. stated she did not feel threatened by what L.K. said or did.

19L.K. testified at the hearing before the Board. He denied bringing a knife to school, denied talking about self-harm, denied threatening to jump off a bridge and denied participating in the MSN exchange with A.R. on April […], 2008. The only explanation he gave regarding the overwhelming evidence before the Board that he talked about self-harm was that he had given a school PowerPoint presentation on the subject.

20The Board does not accept any of L.K.’ testimony. The evidence of S.M. and A.R. support a finding that L.K. brought a pocketknife to school. While A.R. was not able to identify the object as a pocketknife until she spoke to S.M., S.M.’s evidence was clear that L.K. had a pocketknife in his possession. There was no reason for S.M. to fabricate this evidence when she clearly testified that she did not feel threatened by L.K.’ behaviour and only wanted to get him help.

21The Board does not accept L.K.’ evidence that he did not participate in the MSN exchange on April […], 2008. The Board accepts the evidence of A.R. and B.M. that L.K. communicated on MSN as “E.”, the person identified on the MSN transcript.

22The evidence of A.R. and B.M. is also consistent with L.K.’ evidence before the School Board. The Board does not accept L.K.’ explanation that the MSN conversation was a “cut and paste” job from other students because there was a conspiracy against him, motivated by their jealousy over his good grades. This position does not appear to be based in reality and there was no evidence before the Board that L.K. is a stellar student. While he may be a strong math student, he is not a strong student overall. This is one example of how L.K.’ self-perception is not grounded in reality. The Board finds that L.K. participated in the MSN exchange with A.R. on April […], 2008.

23The Board accepts S.M.’s evidence that L.K. had a pocketknife in his possession on April […], 2008. As previously stated, there was no reason for S.M. to fabricate this evidence when she clearly supported L.K., whom she described as a friend she wanted to help. The Board also accepts the evidence of A.D. that L.K. had a razor blade in his possession on an earlier occasion.

24In light of these findings, the Board must determine whether the pocketknife and razor blade are weapons. The Board must also determine whether L.K. threatened other students with these objects and if he threatened A.R. over MSN. If the Board finds that L.K. was in possession of and/or used weapons to threaten others, it must determine whether L.K. should be expelled based on its consideration of mitigating and other factors.

ANALYSIS

A. Purpose of the Expulsion Provisions in the Act

25The expulsion provisions in the Act serve two central purposes: (1) to impose discipline on a student when he or she engages in behaviour that is prohibited under the Act or under a school board’s policy, and (2) to keep other students and staff safe while at school. These purposes are reflected in Regulation 472/07 which requires a school board and this Board to examine mitigating and other factors before deciding to expel a student. The “mitigating factors”, in large part, attempt to assess the risk the student poses to others. The “other factors” provide a framework for determining the appropriateness of “punishment” depending on the student’s circumstances or the context surrounding the incident. It is important to bear these purposes in mind because if the conduct at issue does not jeopardize safety or justify discipline, it is questionable whether a student should be expelled.

26A great deal of the evidence in this case centered on L.K.’ discussions of self-harm. In the Board’s view, this conduct does not pose a risk to the safety of other students, nor does it justify disciplinary action. The threat of self-harm is a cry for help that must be responded to with the provision of appropriate services. The School Board readily acknowledged that threatening or engaging in self-harm is not a reason to expel a student.

B. Possession of Weapon

27There is no definition of weapon in the Act. There is, however, a definition of weapon in the School Board’s Student Discipline Policy. Weapon is defined as “any object or thing used to threaten or inflict harm on another person, and includes, but is not limited to, knives, guns, replica guns and animals”.

28The Board finds that the razor blade in L.K.’ possession was not used to threaten or inflict harm on another person. The Board believes that L.K. had the razor blade in his possession to harm himself or more probably to raise that inference. A.D. believed that L.K. would use the blade to cut himself. This finding is also supported by B.M.’s evidence. She said that L.K. told her that he had a razor blade in his possession but that he did not show it to her. There was no evidence that L.K. threatened to use the blade to harm others.

29The Board makes a similar finding regarding the pocketknife. The pocketknife was not used to threaten A.R.. Indeed, A.R. was not even able to identify the object as a pocketknife at the time of the incident. She identified it as a pocketknife after her conversation with S.M. two days later. There is no evidence that L.K. used the pocketknife to threaten S.M. with harm. Her evidence was clear that she did not feel threatened by L.K.’ possession of the knife, but was concerned that he would use it to harm himself.

30There is no evidence before the Board that L.K. used either the pocketknife or the razor blade to threaten or inflict harm on another person. Rather, the evidence before the Board demonstrates that L.K. had these items in his possession to threaten to inflict harm on himself. Two conclusions can be drawn from this finding: (1) the pocketknife and razor blade are not weapons in these circumstances; and (2) L.K. did not use these objects to threaten bodily harm to another person. He used them only to insinuate that he would harm himself. The Board therefore finds that L.K. was not in possession of a weapon as defined in the Discipline Policy and that he did not use a weapon to threaten bodily harm to another person.

C. Threat

31The second issue for the Board to determine is whether L.K. verbally threatened A.R. on MSN on April […], 2008 and after recess on April […], 2008.

32“Threat” is defined in the School Board’s Student Discipline Policy as “any statement, act or communication intended or apparently intended to intimidate a person, in circumstances where the person threatened believes, or has reasonable grounds to believe, the threat may be carried out”.

33It is difficult for the Board to make a finding as to whether L.K. threatened A.R. on April […], 2008 based on an excerpt of an MSN conversation. When examining the excerpt, it is clear that when asked directly whether he was threatening A.R., L.K. stated “no”. In fact, he told A.R. twice that he was not threatening her and apologized if it seemed to her that he was. While the Board accepts that A.R. was frightened by this exchange, it does not appear evident to the Board on a balance of probabilities that L.K. intended or apparently intended to intimidate her. It may well be that A.R. is frightened of L.K., in part, because he is different from other students and does not fit in socially at school. However, her fear alone cannot form the basis upon which to conclude that L.K. intended or apparently intended to intimidate her. In any event, the extent to which A.R. was frightened is questionable considering that she failed to report this incident for almost one month.

34The Board is unable to find that L.K.’ ramblings on April […], 2008 that he wanted to take someone hostage constitute a threat. While A.R. may have perceived them as such, in the Board’s view, she did so because of her interpretation of the MSN conversation on April […], 2008. The Board does not find that L.K. intended to intimidate A.R., as required under the School Board’s definition of “threat”. Although the Board has made this finding, it remains concerned about this incident. The Board believes it is another manifestation of L.K.’ significant needs which require support, not punishment.

35The Board finds that L.K. has serious social and emotional problems that must be addressed by both his parents and the school. His failure to be forthright and truthful before the Board only served to highlight these problems. It is clear to the Board that L.K.’ parents may not recognize the seriousness of these problems. The school has not provided the help he so clearly needs. At the end of Grade 7, the school’s child and youth worker commented that L.K. continued to deteriorate at school and became more insulate. Despite this warning, no additional support was provided by the school. L.K. continued to receive biweekly appointments with the school social worker: the same level of support that he had been receiving for some time.

36Counsel for the School Board poignantly summarized this case when he simply stated “L.K. needs help”. The Board agrees with this statement. The School Board stated that L.K.’ needs can only be met in the Catholic Return Ticket Program – the program for students expelled from all schools of the School Board.

37The Board does not accept the notion that a student should receive the harshest discipline that can be administered because of his or her social and emotional needs. Discipline is not the correct response to emotional problems. While schools cannot be expected to meet all of a student’s emotional needs, it can certainly meet some of them. The school can also assist parents by providing information about supports available in the community. There was no evidence before the Board that this assistance was offered in this case.

Mitigating and Other Factors

38In light of the Board’s findings that L.K. was not in possession of a weapon and did not threaten other students, there is no basis for an expulsion and accordingly, no need for this Board to consider mitigating and other factors. If the Board were to consider mitigating and other factors, the following analysis would apply:

1. Unacceptable Risk

With respect to the mitigating factors, the Board does not believe that L.K.’ presence in the school creates an unacceptable risk to the safety of any person. This finding is supported by Dr. B.’s risk assessment conducted at the school’s request after the incidents occurred. In his report dated May […], 2008, Dr. B. opined that L.K. posed a mild (rather than moderate or severe) risk of offending physically against others. Dr. B. found that L.K. presents as an unhappy young man with an unhappy social history. He stated in his report that L.K. continues to try to connect with his peers, sometimes choosing inappropriate means of doing so and exercising poor judgment.

39During the hearing before the Board, the School Board attempted to discredit Dr. B.’s opinion by relying on the fact that the MSN transcript had not been provided to him, that he did not measure the impact of L.K.’ behaviour on other students, and was not informed that L.K. continued to communicate with a student from the school after he was expelled. The Board does not believe Dr. B.’s opinion has been significantly undermined by these considerations. Dr. B.’s report was not intended to measure the impact of L.K.’ behaviour on others. It was to measure the risk he presented. If the School Board believes that Dr. B.’s opinion would have changed with additional information, it was free to provide it and ask for an amended report or to call Dr. B. to testify at this hearing. It did neither. The Board relies on Dr. B.’s conclusions and finds L.K. does not present an unacceptable risk to the safety of other students and staff.

40With respect to the other factors that must be considered when determining the seriousness of the incident, the following factors apply:

1. Pupil’s History

L.K. does not have a history of engaging in threatening behaviour. He has had some minor suspensions in the past, mostly for using inappropriate language and lying to staff. He had a suspension in Grade 6 for using inappropriate language and scratching another student. There were no suspensions in Grades 7 and 8, prior to the twenty-day suspension for the incidents before the Board.

2. Progressive Discipline

There is some indication in the OSR summary, that progressive discipline has been used with L.K.. He received four suspensions in his ten years in elementary school, prior to the suspension that resulted in his expulsion. In chronological order, L.K. received one suspension in Grade 4 for one day, two suspensions in Grade 5 – the first for one day and the second for three days and one suspension in Grade 6, for an unknown period of time. He received a twenty-day suspension for the incidents that led to his expulsion.

3. Harassment

The Board believes that L.K.’ behaviour may be related to the bullying that he received in earlier grades. In the Board’s view, the evidence indicates that L.K. is acting out in an attempt to fit in. He does not have a strong social support around him and his threats of self-harm appear to be an attempt to either draw attention to himself or to fit in with a subset of the school population. This finding is supported by Dr. B.’s report. The Board does not believe that the way to deal with L.K.’ behaviour is to exclude him further by putting him into a program for expelled students.

While the Board understands the School Board’s perspective that the Catholic Return Ticket will provide L.K. with the intensive support that he requires, the Board does not believe an expulsion from all schools (or this school) is an appropriate way to access help. Even though the Catholic Return Ticket program may offer excellent resources for a student such as L.K., expulsion from all schools in the School Board should not be used inappropriately to engage these services.

4. Individual Education Plan (“IEP”)

Although he was not identified as an exceptional pupil, L.K. had an IEP for Grade 8. The IEP identified L.K. as someone with social and emotional needs relating to how he felt about himself and those around him. The IEP recommended that L.K. see a school counsellor to see how he is feeling about relationships in general and his role in those relationships.

CONCLUSION

41L.K. is a student with very serious emotional needs that must be addressed by his parents and by the school. The Board does not believe L.K. should be punished for having these needs. The Board relies on the opinion of Dr. B. that he does not pose an unacceptable risk to others. In light of these findings, the Board does not believe that L.K. should be expelled. The Board overturns the expulsion from all schools of the School Board and orders any record of this expulsion be expunged from L.’ OSR. The Board urges L.K.’ parents to recognize his needs and get him the help that he so clearly requires.

Jennifer Scott Presiding Member

Gregory Price Panel Member

Mary Wong Panel Member