CHILD AND FAMILY SERVICES REVIEW BOARD
Appellant
v.
Toronto District School Board
REASONS FOR DECISION ON MERITS
Indexed as: Appellant v. Toronto District School Board (EA s.311.7)
Related Decision: Order of Youth Court dated October 21, 2008, permitting the use of Youth Criminal Justice Act ("YCJA") records and police witnesses at the expulsion hearing and prohibiting publication of information as defined in s. 2 of the YCJA.
1This is an appeal of a decision of the Toronto District School Board (“TDSB”) to expel [the pupil], date of birth [ ] 1991, from all schools of the board, pursuant to section 311.7 of the Education Act R.S.O. 1990, c. E.2 (“the Act”).
2[ ] (the “Appellant”) is the mother of the student and filed an appeal with the Child and Family Services Review Board (the “Board”) on June 23, 2008. She seeks to overturn the expulsion decision of the TDSB. The Appellant was represented by counsel, Daniel Medd. Counsel for the TDSB was Anne Mehta. The hearing was first scheduled for August 11, 2008, but was postponed to September 18, 2008 when medical documents concerning the pupil came to light at the hearing for the first time. The Appellant also wanted time to get an order from Youth Court to present evidence from that process. After receiving some evidence on September 18, 2008, the hearing was further adjourned to October 23, 2008 to permit counsel for the TDSB to respond to previously undisclosed alibi evidence, given by the Appellant. The hearing was held in Toronto, Ontario.
3The Board rendered its decision confirming the expulsion of the pupil from all schools of the TDSB, following the hearing held on October 23, 2008. These are the reasons for that decision.
BACKGROUND
4At the time of the incident leading to the expulsion, the pupil was 16 years old and in grade 12 at [School 1] in Toronto, Ontario.
5Principal [J] of the school, wrote a letter to the Appellant and the pupil on April […], 2008, notifying them that [the pupil] would be suspended for 20 days pending an investigation. The letter noted that the disciplinary action was “a result of the following conduct: [the pupil] did not attend school on March […], 2008 and allegedly drove to [school 2] where he and another person allegedly stabbed a [School 2] student.”
6During this incident, a student of [School 2] by the name of [Student A] was chased by a group of students, two with knives, and stabbed. The incident began in the parking lot of [School 2] and ended in a field some distance away. He managed to run to a nearby elementary school, where he was given refuge in the office. The police were called, but [Student A] did not wait for them and left when a car pulled up to get him. [Student A] sought medical attention and received stitches for the stab wound. He later returned to the [school 2] and was interviewed by the Principal, [B].
7[The pupil] 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:
Possessing a weapon, including possessing a firearm;
Using a weapon to cause or to threaten bodily harm to another person;
Committing physical assault on another person that causes bodily harm requiring treatment by a medical practitioner;
Committing sexual assault;
Trafficking in weapons or in illegal drugs;
Committing robbery;
Giving alcohol to a minor;
Any other activity …
8Subsection 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.
9[Principal J] attempted to reach [the pupil] and his family as part of her investigation, but was unable to interview them. According to [Principal J], the only comment she received from the [pupil’s] family was that “the matter is before the courts”. She forwarded her report to the Discipline Committee of the TDSB on April […], 2008 and recommended expulsion from all schools of the board. [Principal J] notified the Appellant of her recommendation on the same day.
10An expulsion hearing took place at the TDSB on April […], 2008. Neither the Appellant nor the pupil attended. The TDSB notified the Appellant of the TDSB’s decision to expel [the pupil] from all schools of the board on July […], 2008. The reasons given were that: “The Discipline Committee is satisfied on a balance of probabilities that [the pupil] used a knife to cause or threaten bodily harm to another person…, and that the mitigating or other factors do not apply to mitigate the discipline recommended”.
11[The pupil] is currently enrolled in a program for expelled students. Following a police investigation, [the pupil] was charged with assault. The charges were withdrawn several months later, after [the pupil] consented to signing a “recognizance to keep the peace”.
12In this application, the Board must determine whether to confirm the TDSB’s decision to expel [the pupil] from all schools in the TDSB, change the expulsion to an expulsion from the pupil’s school only, or quash the expulsion and return the pupil to his school.
ANALYSIS
Issue no. 1: whether the pupil was in possession of a weapon
13On the first two scheduled hearing days, the panel refused to accept any information related to criminal investigations or charges against the pupil, as that information is protected under the Youth Criminal Justice Act. By October 23, 2008, however, counsel for the TDSB filed a Youth Court order to release that information for purposes of the Board’s in camera hearing. The information may nevertheless not be published.
14Ms. [B], Principal of [school 2], testified that she interviewed the victim, [Student A], in her office following the incident. [Student A] described the two armed attackers and told her that one was called [the pupil] and that she, the Principal, knew him. Though the victim did not know [the pupil], he heard others in the group calling him by name. [Principal B] testified that she knows [the pupil] because he used to be a student at the [school 2], until he was transferred to the [school 1] under a “safe school transfer” in the spring of 2007.
15After the Youth Court order was obtained, a statement from [Student A] was introduced into evidence. According to the statement, [Student A] was chased by a large group of students, coming from the school. At some point, only two were still chasing him, both of whom had knives and were "trying to kill" him. The two were "on him" and one of them [Student B] was saying, "..we are going to kill you, you snitch". Both were trying to stab him in the left chest area. [The pupil] tried to stab him once or twice. He moved out of the way and one of them stabbed him in the arm. Although he was not sure which youth stabbed him, he identified one of the two attackers as [the pupil]. He subsequently identified the student, [the pupil] in a photo line up. He stated that he thought [the pupil’s] knife was a pocket knife with a silver handle.
16Detective Constable [B.A.] took carriage of [the pupil’s] file through the criminal process. He testified that the victim identified [the pupil] from a photo line-up that was shown to him, as one of his two attackers.
17The pupil did not testify before the Board.
18The Appellant testified that she never failed to return a call from the principal; that she was unable to make the appointment due to other obligations, and further, that her son [the pupil] was home with her on the day of the incident. Specifically, she testified that she left the house in the morning, but returned home at approximately 11:45 a.m. At that time, she stated [the pupil] was just waking up and she made breakfast for him. He remained at home until approximately 4:00 pm. The incident occurred at approximately 1:00 p.m., as the victim was returning to school from lunch. She also testified that she realized during the Court proceedings that Detective [A.Y.] had taken some notes of her statements to him that day, and that they contained an error on this point. She testified that she told the Detective she knew her son was home until 4:00 p.m.
19Detective [A.Y.], who visited the [pupil’s family’s] apartment in the evening of March […], 2008, testified that [the Appellant] told him at that time she wasn’t home during the day and did not know where her son was. He agreed that the notes he took on that day were not shown to [the Appellant] to verify their accuracy.
20Counsel for the Appellant submitted that the panel should consider the fact that the Court dismissed the charges against [the pupil], as confirmation that there was no evidence he was involved in the attack on [Student A]. However, the evidence before us was that the pupil consented to sign a 12 month recognizance order, requiring him to have no contact with [Student A], nor to possess any weapons. The Judge was “satisfied upon the evidence adduced that the informant has reasonable grounds for his/her fears.”
21The panel finds Detective [A.Y.’s] testimony to be persuasive and that the Appellant did not know where [the pupil] was at approximately 1:00 pm on March […], 2008. Mr. [A.Y.] referred to his contemporaneous notes made on the day of the interview, and is a disinterested participant in the matter, unlike the Appellant whose testimony regards a matter in which she has a direct interest in the outcome.
22Based on the photo line up and the witness statement of [Student A], which was the best evidence available, the Board finds that [the pupil] was in possession of a knife. Further, he was part of an attack in which he threatened [Student A] by chasing him and trying to stab him, in the context of a swarming attack in which [Student A] was also threatened with his life. 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.
Issue no. 2: whether an expulsion is appropriate for the infraction
23In determining whether an expulsion is appropriate, and if so whether from one school or all schools of the board, this Board must consider the “mitigating factors” and “additional factors” listed in sections 2 and 3 of Regulation 472/07.
24Under section 2 of Regulation 472/07, the following mitigating factors must be taken into account by the Board in an appeal:
The pupil does not have the ability to control his or her behaviour;
The pupil does not have the ability to understand the foreseeable consequences of his or her behaviour; and
The pupil’s continuing presence in the school does not create an unacceptable risk to the safety of any person.
(i) Whether the pupil has the ability to control his behaviour
25A document was disclosed at the opening of the first scheduled hearing day, relating to a psychotic episode suffered by the pupil in June, 2008 while living in [X]. The issue was then raised as to whether the incident which led to the expulsion related in some way to an undiagnosed mental illness.
26The transcript from his consulting doctor at The [ X] Hospital notes:
“The patient has been recently admitted and discharged from the [ ] Inpatient Unit for what appears to be psychosis not otherwise specified. The patient was admitted into the hospital on a Form 1 for bizarre behaviour, inability to sleep and symptoms of psychosis including persecutory delusions and a feeling that people might be after him to poison him and kill him.
Since discharge the patient reports that he is feeling better in regard to his symptoms.
27The letter notes that the main “stressors” at the time included the family’s move to [X], “since most of his friends and school mates are back in [Y]”, and “an outstanding charge for assault”, entailing being “followed by a probation officer.” It also records:
“2 previous similar episodes to the last one in June of 2008 which lasted about several days duration as reported by the patient’s mother. These episodes were about 3 months ago, probably in March of this year and they resolved without seeking any medical advice at that time. On both those occasions the parents have reported that the patient had problems with sleep and his behaviour was somewhat odd. There is only 1 previous admission to the Psychiatric Unit in June of 2006.”
28The Doctor’s impression in July 2008 was “Psychosis, not otherwise specified”, and that there was a “need to rule out substance-induced psychosis.” The notes recommend that [the pupil] “should be following up with a Psychiatrist or a mental health professional even when he moves back to [Y].” The Applicant testified, however, that her son is fine “when he is taking his medication” and therefore they have not followed-up in [Y].
29The most recent medical information is a letter dated August […], 2008 from [the pupil’s] doctor in [X], who confirmed that he is “currently doing much better with no apparent psychotic (symptoms). I think patient is ready and safe to return to school based on his current condition.”
30Counsel for the TDSB argued that the letter does not conclude that the pupil is, or was, “unable” to control his behaviour as a result of the psychotic episode, or that an underlying condition that caused the episode rendered him unable to control his behaviour. Similarly, the letter does not make a conclusion that the pupil did not have the ability to understand the foreseeable consequences of his behaviour.
31Counsel for the Appellant did not vigorously argue that the psychotic episode should have any weight, as he argued that [the pupil] was simply not involved in the incident where [Student A] was stabbed.
32The panel was unable to ask questions of the letter’s author, as no-one was called as a witness on this issue. This hearsay nature of the document makes it less reliable as evidence to decide the issues before us.
33The pupil did not testify, although there would have been no prejudice to do so because the criminal charges were concluded by the time of the hearing. As a result the panel was not able to hear his evidence on this, or other points.
34The panel finds that the letter raises an underlying question about the mental health of the pupil at the time of the incident, but is not specific enough to mitigate the seriousness of the incident. The letter refers to stressors that impacted on the student at the time of the psychotic episode in June 2008, after the incident in question. Those stressors included pending criminal charges for the school-related incident (since resolved) and a family move to [X] away from his friends and peers. Further, the letter notes that other factors that could possibly induce the psychosis had yet to be ruled out.
35[Principal J.] testified that, in her view, [the pupil] was able to control his behaviour. A psycho-educational assessment has been conducted with this pupil, which found him to have no impediments to learning. She also noted, however, that with this new information regarding psychotic episodes, the matter would have to be referred to a school psychologist for consideration. The Board would encourage the school board to follow up on this point.
36The panel finds the letter is neither specific enough with respect to possible pre-existing mental illness, nor its possible impact on the factors listed in the Regulation, to constitute a mitigating factor. We therefore find that the pupil has the ability to control his behaviour.
(ii) Whether the pupil has the ability to understand the foreseeable consequences of his behaviour
37[Principal J] testified that [the pupil] has the ability to understand the foreseeable consequences of his behaviour. She testified that when [the pupil] first started at the [School 1] under a “safe school transfer”, he was clearly informed what the consequences would be for unacceptable behaviour. He has been suspended on a number of occasions, for unacceptable behaviour at the school.
38For the same reasons noted above, we find the medical documents insufficient to constitute a mitigating factor with regards to this incident. We therefore find the pupil has the ability to understand the foreseeable consequences of his behaviour.
(iii) Whether the pupil’s continuing presence in the school creates an unacceptable risk to the safety of any person
39Neither counsel addressed this specific factor in argument. The panel finds that it does not apply to mitigate the seriousness of the present case. There is evidence before us that this pupil has no regard for limitations imposed on him in the past. [Principal J] testified that a condition attached to the pupil’s safe school transfer from the [School 2] to the [School 1] was that he could not attend the [School 2]. Nonetheless, the incident occurred at that location, with students from that school. In addition, the criminal charges against this pupil resulted in a Court-ordered peace bond, preventing him from approaching the victim in this case. Contrary to submissions of counsel for the Appellant, the issuance of a peace bond does not denote that charges were dropped for lack of evidence, but can only be ordered where a Judge agrees the victim has “reasonable grounds” to fear the pupil in question. [Principal B] testified that [Student A] later came to her and asked to be transferred out of the [School 2], because he was “scared of [the pupil]”. We find that his continuing presence in the school would create an unacceptable risk to the safety of persons.
40Under 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:
The pupil’s history
41The pupil has a long history of discipline, including 19 suspensions and a “safe school transfer” in September 2007. A number of the incidents leading to those suspensions related to defiance of authority and violence. The pupil’s history does not mitigate against the seriousness of the activity.
Whether a progressive discipline approach has been used with the pupil
42Counsel for the Appellant did not deny that a progressive discipline approach had been used with the pupil. [Principal J] testified to a number of interventions that have been tried, including credit recovery, a social worker, the school’s Child and Youth Counsellor, and the Guidance Counsellor. Given his history of suspensions and transfer, we find a progressive discipline approach has been used. Consequently, there is not a lack of progressive measures to consider as a mitigating factor.
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.
43Neither party presented any evidence that harassment was an issue in this incident.
How the suspension or expulsion would affect the pupil’s ongoing education.
44[Principal J] testified that the program for expelled students does not impede the pupil’s ongoing education. She testified that [the pupil] will be able to obtain normal credits, in fact be offered “credit recovery”, in order to continue his ongoing education. The pupil will be able to complete his Grade 12 credits at the program for expelled students. In addition, he would be offered intensive counselling and a small learning environment. [Principal J] testified that Colleges and Universities are provided with a record of the credits obtained by the student, and not their disciplinary history. Having attended the program for expelled students would not impact on [the pupil’s] opportunities for post-secondary education.
45There was no evidence that the expulsion would negatively impact [the pupil’s] education in his particular circumstances.
The age of the student
46The Board finds that the age of the student has no mitigating effect.
In the case of a pupil for whom an individual education plan has been developed.
47[The pupil] does not have an individual education plan and this factor does not apply to him. The panel notes that the school performed a psycho-educational assessment and determined that [the pupil] was of average ability and an IEP was not warranted. There was no recommendation for a special program. [Principal J] testified, however, that given the new psychiatric information, she may want to consult with the TDSB’s psychology department about whether an “Identification Placement Review Committee” (“ICRP”) should be convened. This Board again encourages the TDSB to revisit this issue in light of the new psychiatric information.
CONCLUSION
48The Board finds on a balance of probabilities that [the pupil] was involved in the violent swarming incident on [Student A]. We find he was identified by the victim as one of the two attackers who brandished a knife when the victim was stabbed, requiring medical attention.
49The Board did not find any mitigating factors that would impact the expulsion of [the pupil] from all schools in the Toronto District School Board.
Mary Wong
Presiding Member
Sheena Scott
Panel Member
Heather Gibbs
Panel Member
Dated at Toronto, Ontario this 28th day of November, 2008