R.T. v. Durham Catholic District School Board, 2008 CFSRB 94

CHILD AND FAMILY SERVICES REVIEW BOARD

R.T.

v.

Durham Catholic District School Board

REASONS FOR DECISION ON MERITS

Date: November 21, 2008

Citation: 2008 CFSRB 94

Indexed as: R.T v. Durham Catholic District School Board (EA s.311.7)

1This is an appeal of a decision of the Durham Catholic District School Board (the “School Board”) to expel V.K., d.o.b. July […], 1994, from [ ] School pursuant to section 311.3 of the Education Act R.S.O. 1990, c. E.2 (the “Act”). The Applicant is seeking to have the decision of the School Board overturned.

2Mrs. R.T. (the “Applicant”), the mother of the Student, filed an appeal with the Child and Family Services Board (the “Board”) on May 8, 2008. She sought to change the decision of the School Board from an expulsion from [ ] School to a non-expulsion. She was self-represented at the Board hearing held on June 2nd, September 8th and September 19th, 2008, in O., Ontario.

3On September 29, 2008, the Board released its decision on the expulsion appeal. The Board upheld the decision of the School Board to expel the Student from [ ] School, the school she was attending. These are the reasons for that decision.

BACKGROUND

4At the time of the incidents leading to her expulsion, V.K. (the “Student”) was a 13-year old student in Grade 8, at [ ] School in [ ], Ontario. She had been a Student at [ ] School since the beginning of Grade 7. The infraction for which the Student was expelled from [ ] School is set out below.

5This is a case of an alleged “cyberbullying” by the Student. In January 2008, a student in Grade 8 at [ ] School, [Child A], was added to the Facebook of a person identified as “[Child B – similar spelling to Child A]”. There were “conversations” between [Child A] and [Child B], with [“Child B”] indicating that she was also a student in Grade 8 at the school. On January […], 2008 [“Child B”] wrote to [Child A] making many statements which included the following: “ …U DON’T WANT ME TO GET MAD BECAUSE THEN ILL KILL YOU RIGHT IN UR SLEEP OR AT SCHOOL ON MONDAY.”, and “ ….I am gonna come to school on Monday and kick ur ass. im gonna kill u. ok? ok!”

6The person identifying herself as [Child B] on Facebook, not only used a similar name to [Child A], but also used similar information when developing her profile. As such [“Child B”] was also contacting [Child A]’s friends.

7Mrs. C.G., vice-principal at the school, testified that on January […], 2008, Mr. B.M. came to the school informing her of his concerns regarding threatening emails (Exhibit R-1 p.51/55) that his daughter, [Child A], had received. He advised Mrs. C.G. that he had already contacted the police and Facebook. He was concerned about his daughter’s safety, as one message was a threat that she would be killed while attending the upcoming Grade 8 trip to Camp K..

8Facebook had also closed [“Child B’s”] account three times, which she re-opened. It was later discovered that [Child B] was actually the Student, V.K.. Detective L.P., a computer expert, explained that a considerable amount of time had been required to set up the 11 email accounts, to impersonate some students, to manage and monitor the accounts and to reopen some of them.

9On March […], 2008, the Student was suspended for engaging in activities or patterns of behaviour on or off school property that cause the pupil’s continuing presence in the school to create an unacceptable risk to the physical or mental well-being of other person(s) in the school. The principal’s authority to suspend the Student came from 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. Any other activity that, under a policy of the board, is an activity for which a Principal must suspend a pupil, and therefore in accordance with this Part, conduct an investigation to determine whether to recommend to the board that the pupil be expelled.

The Principal must conduct a mandatory investigation under subsection 311.1(1) and if an expulsion is recommended by the Principal, the matter is referred to the School Board for a hearing under subsection 311.3, which states that:

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.

10In this instance the Principal recommended that the Student be expelled from all the schools of the School Board and on May […], 2008, the School Board’s Expulsion Hearing Committee expelled the Student from her school only.

11The School Board’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 school 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.

12Since the expulsion, the Student has been enrolled at another school. The Applicant did not want her daughter to attend the [ ] Program for students expelled from one or all schools of the School Board.

13The Appellant admitted that her daughter did commit the infraction. Therefore, in this application, the Board must determine only the following issues:

a) whether the infraction occurred at school, at a school related activity or if it affected the school climate; and

b) whether the Student should be expelled from her school.

ANALYSIS

14The facts were admitted, and the Board finds that the Student used Facebook to send emails, to impersonate some students and to make death threats. In determining whether an expulsion is appropriate, this Board must consider what effect the infraction had on the school climate, the “mitigating factors” and “additional factors” listed in sections 2 and 3 of Regulation 472/07.

Impact on the School’s Climate

15The witnesses who testified on behalf of the school explained the effect the threatening emails had on [Child A] and her family. In a letter, [Child A] described how she was affected by the threatening emails: she had trouble sleeping; she felt isolated; she was afraid for herself and for her family; she was closing the blinds at home and she was always watching over her shoulder. There was also some evidence that [Child A].’s sister, a student at the school, was also negatively impacted by the threats. The Board would have appreciated hearing directly from [Child A] or a member of her family, about the ways in which the threatening emails affected their life.

16The School Board is responsible for the safety of all students and the offending Student’s actions were of such a serious nature that it would be very detrimental to the climate of the school if [“Child B”] (V.K. )was permitted to return to the school.

17The Board finds that the actions of the Student were extremely serious and that it would have been impossible for the Student to return to [ ] School once it was known that she was the author of the emails. The climate of the school would have been seriously affected.

Mitigating Factors

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

18The Applicant states that for two months, from January 2008 to March 2008, when the identity of the person sending the emails was unknown, the Student attended school regularly and without incident. What was unknown at that time was the fact that the victim and the author of the threatening emails were students in the same Grade 8 class.

19In her provincial report cards, under cooperation with others and conflicts of resolution, most of her notes were marked excellent or good. Between grade 1 and grade 8, only one remark in grade 3 refers to conflicts with others: “At times, V.K. finds herself in conflict with others, but always endeavours to resolve conflicts in socially acceptable ways.”

20There was no evidence that the Student did not have the ability to control her behaviour. Therefore, this factor does not apply to her.

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

21The Applicant argued that the Student did not understand she would be suspended or expelled and that she did not understand the seriousness of her actions because she has a Central Auditory Processing Difficulty (CAPD), diagnosed in 2004 (Exhibit A-1). At the time of the report, the Student was 8 years old and in grade 3. As a consequence, it affected her speech. The Applicant also argued that the Student used Facebook as a fantasy and that she would never act out her threats. The Board gave little weight to the 2004 report because it was out of date. More recent reports referring to the CAPD would have been helpful but were not put into evidence.

22Mrs. A.O., Superintendent of Safe Schools and a specialist in special education, stated that the Student’s learning was not adversely affected by the diagnosis of CAPD. This is evident from the Synopsis of June report cards (Exhibit R1.p.19-22/ 2003) and the Provincial report cards from December 2000 to June 2008 (Exhibits A2/A3/A5/A7). She affirmed that the Student had strong skills and had no learning disability. When the Student received information, the difficulty was in decoding and integrating the information. After Grade 3 or 4, the brain process is stronger and students develop coping mechanisms. The evidence demonstrated that after Grade 4, the Student did not receive an individual education plan.

23The Board examined the report cards carefully and the written comments contained therein. In summary, the Student worked very hard, needed assistance and clarifications in some subjects. Most of her marks were in the 70’s. She was at level 2 and 3 in most of her subjects. Her weakest subject was math. The Student was able to maintain that level even with her difficulty (CARP), which the Board believes is quite an accomplishment.

24The Board concludes that the Student is a bright girl, that she did understand what she was doing and that her actions were even premeditated. Even though the Student knew that one of the victim’s fathers had contacted the school, Facebook and the police, she reopened the accounts on three occasions.

25There was no evidence that led the Board to believe that the Student did not understand the foreseeable consequences of her actions. In the Board’s view, to impersonate students and reopen the accounts showed that she understood what she was doing.

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.

26The Applicant stated that the Student had been bullied all her life, that she was a victim and not a violent child. It was argued that the Student’s threatening emails was her way of dealing with the daily harassment she endured and the isolation she experienced from other students. The Applicant stated that the Student was moved to [ ] School due to too much bullying at her previous school. The Applicant claimed that the letter sent to the school on March […], 2008, (Exhibit R2) after the suspension, explaining the harassment the Student endured at the school, was ignored.

27As indicated above, in all the report cards, only one comment made in Grade 3 refers to conflict with others. From the Applicant’s point of view, the Student had the perception of being bullied.

28Mrs. C.G., vice-principal, stated that, except for one incident in the schoolyard in January 2008, neither she, the principal, nor the teacher, had been informed of bullying incidents towards the Student at their school. The issue was never raised between the Student’s parents and the school. The past history of bullying at previous schools was never brought to their attention either. Had they known, they would have put in place a plan of action to ensure that the Student would be comfortable in her class.

29Mrs. G.A., the Grade 8 teacher, frequently had her students work in groups of 3 or 4 and never felt the Student was excluded. The members of the groups changed frequently. No problems were ever reported to her.

30The Student was described as quiet, lacking confidence and not isolated by her peers. The Student had two close friends and she got along well in groups.

31Discussions about bullying are woven throughout the Religion and Family Life Program. The class expectations and the rules are clearly explained and discussed with the students. There is an anonymous box in the classroom where students can write their concerns. At the beginning of the year, students sign a computer-use contract as part of the school’s Code of Conduct in their agenda, to ensure that they use the computers as an academic tool, rather than as a form of entertainment. (Exhibit R1p.32)

32It seems that the Applicant maintains the belief and the perception that the Student was being bullied. The Student did not participate at the hearing. Without the Student’s direct testimony, it is difficult for the Board to make a finding that she was bullied.

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

33After the Student was suspended, daily homework assignments were sent to her residence and, upon their return to school, were corrected until the expulsion. The Applicant did not want the Student to attend the program for expelled students. She enrolled the Student in another school. No information was provided concerning the new school.

34The Board finds that the Student’s on-going education was not affected.

5. The age of the Student

35The age of the student is not a relevant mitigating factor in this case.

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

36The evidence shows that an individual education plan had been developed for the Student from Grade 1 to Grade 4, but that at the time of the infraction she did not have an individual education plan. As such, this is not a relevant mitigating factor.

Other Factors

37With respect to the other factors that must be considered when determining the seriousness of the incident, the following factors apply:

1. Pupil’s history

38The evidence did not demonstrate that the Student had a history of engaging in threatening behaviour at the school. Regarding the incident in the school yard, the vice-principal dealt appropriately with the situation at that time. The absence of the Student’s testimony made it difficult for the Board to properly assess the relevancy of this factor.

2. Progressive discipline

39The Applicant stated that to expel the Student from her school was an extreme measure and that no progressive discipline had been established by the school. The evidence demonstrated that the Student does not have a computer in her room anymore and that the use of a computer is limited to school work.

40It is the position of the School Board that the Student’s actions were extremely serious and negatively impacted the school climate to such an extent that progressive discipline techniques, which would have kept the student at the school, would not have been appropriate in this case.

41The Board agrees with the School Board and finds that given the facts of this case, no steps, other than expelling the Student from [ ] School would have been effective given the School Board’s responsibility to ensure both the physical and emotional safety of all students attending its school.

CONCLUSION

42The decision which the Board has to make is unique in that although the infraction did not occur at school or at a school related activity, it had a negative impact on the school climate. The fear of significant harm generated by the Facebook communications and the subsequent knowledge that this was committed by one of the pupils at the school leads the Board to find that the school climate was negatively impacted by the infraction. Having reviewed the mitigating and other factors, there is no evidence to indicate that the Student either did not have the ability to control her behaviour or to understand the foreseeable consequences of her behaviour.

43Therefore, the Board upholds the decision of the Durham Catholic District School Board to expel the Student from [ ] School.

Denyse Diaz

Presiding Member

______________________________Nycole Roy

Panel Member

Donald Butler

Panel Member