CHILD AND FAMILY SERVICES REVIEW BOARD
M.C.
v.
Durham Catholic Board of Education
REASONS FOR DECISION ON MERITS
Indexed as: M.C. v. Durham Catholic Board of Education (CFSA s.311.7)
INTRODUCTION
1This is an appeal of a decision of the Durham Catholic Board of Education (the “Respondent”) to expel J.E., born August […], 1995 (the “Pupil”), from [School A] and all schools of the Respondent, pursuant to section 311.7 of the Education Act (the “Act”). M.C. (the “Applicant”) is the mother of the Pupil and filed an appeal with the Child and Family Services Review Board (the “Board) on March 11th, 2011.
2The issue for this Board is whether the Pupil should be expelled and if so, whether the expulsion should be from all schools of the Respondent.
3The Board heard direct and indirect evidence relating to the infraction. The testimony consisted of the account of the student victim of a robbery at school, the Principal and two Vice Principals who investigated the incident, and the expelled Pupil. Written statements from both testifying students and various other witnesses to the incident were submitted. The Applicant also testified.
4On July 29, 2011 the CFSRB released the decision to uphold the expulsion from all schools.
PRELIMINARY MATTERS
5There were three motions by the Applicant in the course of the proceedings.
Motion for Adjournment
6At the outset of the hearing, the Pupil’s lawyer requested a brief adjournment for the following reasons:
i) the full expulsion package was not received until April […], 2011 and more time was required to make full answer and defence;
ii) witnesses named in the disclosure package could not be contacted, interviewed or summonsed;
iii) counsel may need an Order to obtain the Pupil’s records under the YJCA;
iv) there would be no prejudice to the Respondent if the hearing was delayed; and
v) the Pupil is attending the [Program A] and earning credits.
7The Respondent opposed the adjournment on the following grounds:
i) a number of witnesses were present and available to testify;
ii) next available dates (based on the schedule proposed by Applicant’s counsel) would result in the hearing resuming in June, which was exam time and very difficult for school administration and witnesses;
iii) times and dates were already changed once; and
iv) Applicant has had ample opportunity since receiving the Notice of Expulsion to retain counsel and obtain full disclosure.
8The Expulsion Hearing Committee decision was released February […], 2011, more than two months earlier. The Board Panel was concerned with delay, recognized that witnesses were present and ready to proceed, and accepted that June is a difficult month for student and teacher/administrative witnesses. It is important that the process be fair to both Applicant and Respondent.
Decision
9Respondent to proceed as scheduled on April 18th and 19th, 2011, until the case for the Respondent is closed. After examination-in-chief of each witness, a significant break will be provided so counsel for the Applicant may prepare for cross-examination. A further one or two days will be scheduled for the Applicant to present her case.
10Ms. C.S. confirmed that she is counsel for the Pupil only. The Applicant’s mother, M.C., confirmed that she will not be presenting additional evidence or putting forward a different position from that being advanced on behalf of the Pupil.
Motion for Disclosure
11Applicant’s counsel requested an Order that the Respondent disclose to her the contact information for students named in witness statements and in exhibits filed by the Respondent in order to obtain and serve Summons to Witness. Due to privacy concerns, the Respondent did not consent.
Decision
12An Order was made that the Respondent provide Applicant’s counsel with contact information for the witnesses as required on April […], 2011 to enable the Applicant to obtain Summons to Witness and to arrange for service on a timely basis.
Motion to Amend Application
13The Applicant’s original position in her application to the CFSRB was that the Pupil should face expulsion from his school only and that any record of the expulsion be removed or amended. At the end of the last day of the hearing (June 24th, 2011), the Applicant moved to amend her pleading to seek an Order quashing the expulsion altogether. The Respondent opposed the Applicant’s request but conceded, quite properly, that the evidence adduced would not have been different had the amendment been made at the outset.
Decision
14The Board allowed the Applicant’s motion on the basis that there was no prejudice to the Respondent.
Hearing on the Merits
15The Board assessed the merits of this appeal and considered whether or not to quash the expulsion from all schools. The relevant provisions of the Act are reproduced below:
S.310(1) 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 that, under a policy of a 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.
311.1(1): 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.
Regulation 427/07 Suspension and Expulsion of Pupils (Education Act):
For the purposes of subsection 306(2), 306(4), 310(3), 311.1(4) and clauses 311.3(7)(b) and 311.4(2)(b) of the Act, the following mitigating factors shall be taken into account.
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.
The pupil’s continuing presence in the school does not create an unacceptable risk to the safety of any person.
For the purposes of subsection 306(2), 306(4), 310(3), 311.1(4) and clauses 311.3(7)(b) and 311.4(2)(b) of the Act, the following other 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.
Whether a progressive discipline approach has been used with the pupil.
Whether the activity for which the pupil may be or is being suspended or expelled was related to any harassment on the pupil because of his or her race, ethnic origin, religion, disability, gender or sexual orientation or to any other harassment.
How the suspension or expulsion would affect the pupil’s ongoing education.
The age of the pupil.
In the case of a pupil for whom an individual education plan has been developed, i. whether the behaviour was a manifestation of a disability identified in the pupil’s individual education plan, ii. whether appropriate individualized accommodation has been provided, and iii. whether the suspension or expulsion is likely to result in an aggravation or worsening of the pupil’s behaviour or conduct.
16The background and Reasons for the Board’s decision follow.
BACKGROUND
17At the time of the incident, the Pupil was a 15 year old grade 10 student at [School A] in [City A].
18The school had been experiencing an ongoing problem with electronic devices (iPods, iPhones, etc.) including unauthorized use in the school and theft.
19The Pupil was suspended for twenty days following an incident at the school on December […], 2010. After an investigation, the Principal recommended that the Pupil be expelled and testified that the reason for his decision to recommend expulsion was robbery. The Expulsion Hearing Committee’s decision was released on February […], 2011, and the Pupil was expelled from all schools of the Respondent Board of Education.
20[Student 1], a student at [School A], testified to an ongoing issue with three students, including the expelled Pupil, about a missing iPhone. On December […],2010, while he was in the music hallway at school talking to one of those students ([Student 2]), the Pupil grabbed him by his shirt with both hands, shoved him into a locker, pushed him into another locker a metre away, and repeated several times “Where’s my iPhone”. During the same incident, [Student 2] hit him in the face twice, knocked off his glasses and took his iPod from his left pants pocket. The Pupil pulled the iPod earbuds out of the victim’s sweater and both students left. The iPod and earbuds were returned to [Student 1] by the police a couple of weeks later.
21[Student 1] wrote three “statements” at the time of the incident, all of which were entered as exhibits and were consistent with his oral evidence at the hearing.
22Vice Principal K.Z. had some involvement with the school investigation into the events of December […], but had no direct evidence relating to the Pupil.
23Vice Principal K.D. testified about her investigation into the December […] events. She interviewed the Pupil on December […]. He admitted verbally and in his written statement, to being involved in the incident described by [Student 1]. and that he had “roughed” him. Ms. K.D. was given the names of two witnesses by the Pupil. Neither of these students’ written statements was included in the expulsion package submitted to the Expulsion Hearing Committee of the Durham Catholic Board of Education.
24Based on the Pupil’s admission that he had pushed [Student 1] and was there when [Student 2] struck the victim and took his iPod, Ms. K.D. concluded, in her Report dated December […], 2010, that the Pupil had committed a robbery on school premises on [day] December […], 2010. Based on other student statements received during the investigation, she also concluded that the Pupil had taken the iPod earbuds.
25Principal L.C. took the statements of two other witnesses ([Student 3]. and [Student 4]) who reported that [Student 1] had been robbed and that [Student 2] and the Pupil were involved in that robbery. [Student 2] told Principal L.C. that another student ([Student 5]) had the iPod and that the Pupil took the earphones. Mr. L.C. completed his investigation and prepared the “Principal Statement for Expulsion”, which was admitted as Exhibit R17. He said it was a relatively simple investigation because the expelled Pupil had admitted “throwing [Student 1] against the locker”. He suggested that the only issue in dispute was whether the Pupil had stolen the iPod earbuds. Given the fact that the victim and [Student 2] both said the Pupil had taken them, the Principal had no reason to believe that the Pupil had not done so.
26The Principal made the recommendation to expel the Pupil, because in his opinion it was a very serious and high profile incident in the school. This opinion was based on several factors: people who saw or were involved in the incident were very upset and concerned; Ministry guidelines specify that robbery is an expellable offence; and robbery is the taking of something with the use of violence or force. This conduct affects the tone in the school and is unacceptable. The Principal believes that it is important that students and their property are safe.
27The Pupil testified that he had an unfinished discussion with [Student 1] on the morning of December […], 2010. Later the same day, when he saw him and another student ([Student 2]) in the hall, he asked the victim repeatedly for his iPhone, pushed him against the lockers and took the iPod earphones from his collar, throwing them over his shoulder as he left. While that was happening, the other student slapped the victim and took his iPod.
28Prior to the expulsion, the Pupil had a history of truancy, several suspensions and a poor academic record, but no history of school violence.
29Ms. K.D. testified extensively about the school’s progressive discipline with the Pupil and submitted various reports and summaries, which she prepared (Exhibits R11-15).
30Ms. K.D. confirmed that the iPod and earbuds had been returned to [Student 1]. She testified that the Pupil was concerned about what he had done to [Student 1] and about the consequences, and that he was “sincerely trying to do better”. The witness was not aware of any historical incidents of the Pupil fighting at the school. All of the prior incidents in his OSR related to “off task behaviour” such as skipping classes, lateness, etc.. He had never been involved in violence with another student. This incident of violence was the reason for the increased suspension of twenty days.
31When asked whether the Pupil was a difficult student, Ms. K.D. said it was very difficult to understand why he was not in class, why he was leaving classes or was late, and despite his mother’s great efforts and the efforts of a guidance counsellor, they were unable to influence him to alter his behaviour.
32After his expulsion, the Pupil successfully attended the [Program A] for expelled students.
33At the conclusion of the evidence, before submissions, there was discussion during which the Respondent clarified that it was relying on all of the grounds set out in the Expulsion Hearing Committee’s letter of February […], 2010, not the robbery alone. The Applicant was given two weeks (to July […], 2011) to make further written submissions on the broader issue, after which the Respondent would have two weeks to file a response. On July […], 2011 the Applicant notified the Board that she would not be making any further submissions.
ANALYSIS
34The Board must first decide if the Pupil has engaged in an activity that warrants an expulsion under s.310(1) of the Act and whether this activity occurred at school, at a school-related activity or in other circumstances where engaging in the activity will have an impact on the school climate. Upon being satisfied that the Pupil engaged in the activity in one of the three circumstances describe in s.310(1), the Board must then consider the mitigating and other factors to determine the appropriateness of expulsion as a disciplinary measure in the circumstances of the particular case.
35The Board finds on the evidence, that the Pupil committed a robbery on December […], 2010 when he assisted [Student 2] by holding the victim against a locker while [Student 2] took his iPod.
36Section 310(1)6 of the Act makes “committing robbery” an activity which, in certain circumstances, mandates a suspension and an investigation to determine whether the Principal will recommend expulsion.
37The Board notes the definition of “robbery” as contained in the Canada Criminal Code, and the definition contained in the Durham Catholic District School Board policy which was submitted at Tab 2 of the Applicant’s Book of Authorities, i.e. “theft or intended theft, during which violence, threat of violence or a weapon is used or threatened”.
38The Pupil admitted in his written statement (Exhibit R5) “In the drama hallway we were asking and trying to intimidate [Student 1] because we thought that [Student 1] stole an iPhone from my boy D.. We asked him if he took the iPhone and he said no. I was pushing [Student 1] and [Student 2] was kind of roughing him up. He took him (sic) iPod and walked away.” In his oral testimony, the Pupil said that he interrupted a conversation between [Student 1] and [Student 2] in the hall, asked repeatedly for his iPhone and pushed [Student 1] against the lockers; [Student 2] took the iPod; the Pupil took the earphones, threw them over his shoulder and left. The account given by the victim was consistent with that of the Pupil, except the victim said that the Pupil took the earphones and he did not know what had happened to them afterward.
39The evidence is undisputed that the Pupil took the student by his shirt with both hands, shoved him against a locker and, while holding him, another student hit him in the face twice, knocked off his glasses and stole his iPod. The Pupil disputed keeping the iPod earphones, but acknowledged that he actively participated in the incident and that he removed the earphones from the victim’s collar.
40The evidence of the victim was consistent and credible. The Board finds that the Pupil was part of a violent act in the commission of a robbery. The Board also accepts the evidence of the Vice Principals and the Principal that the robbed student was completely shaken up, upset and crying, and that two older students who witnessed the incident were also extremely upset by what they had seen.
41The robbery occurred on school property during a normal school day. The Board finds that it was proven on a balance of probability that the Pupil was engaged in the activity described in section 310 (1) 6.
42The Board finds that the Pupil has the ability to control his behaviour and to understand the foreseeable consequences of his behaviour. There was no evidence to the contrary.
43Based on the evidence of the victim about the harassment and intimidation he experienced for several days prior to the incident on December […], 2010, the Board views this incident as the culmination of a pattern of conduct by the Pupil and others. The Board finds on the evidence, that ownership of the iPhone was claimed by three different students and all three engaged in conduct towards the victim designed to extract some form of consideration from him prior to the robbery.
44The Board is satisfied that the Pupil’s continuing presence in the school creates an unacceptable risk to the safety of others. The language of s.2.3 of Regulation 472/07 under the Act sets a high threshold wherein the risk must be an “unacceptable” risk. The assessment of the risk is also forward looking because of the use of the word “continuing” to describe the student’s presence. The Board accepts that robbery of another student is an extremely serious and unacceptable act in any school. The student who was robbed testified that he felt intimidated and various other students expressed their alarm at the incident in written statements to the school administration. There was no prior relationship between the victim and the Pupil which explained the Pupil’s conduct.
45The Vice Principal, with administrative responsibility for the Pupil, testified that there was no history of physical violence by this Pupil. The Board finds that no “other” factors mitigate against an expulsion being the appropriate disciplinary measure in the circumstances of this case. Nothing in the Pupil’s history, including his age or the impact of the expulsion on his ongoing education, mitigate against expulsion.
46The Board finds that the school engaged in a course of progressive discipline with the Pupil between September, 2010 and December, 2010. The student was previously suspended on three occasions, none of which were appealed. The school consulted with the Pupil’s mother and tried to address his truancy, late and disruptive behaviours. The Respondent tried to avoid suspension and looked at other options including after school detention, community service and counselling. Although all prior suspensions were of one to three days duration and directly related to breaches in the code of conduct at the school, the Board is satisfied that the escalation to participating in the robbery was the reason for the increase in the suspension term to twenty days following the December […] incident and subsequent expulsion of the Pupil from all schools of the Respondent.
47In conclusion, the Board finds on a balance of probabilities that the Pupil’s continued presence creates an unacceptable risk to the safety of others at all schools of the Respondent and expulsion is warranted in the circumstances of this case.
48For the above reasons, the Board upholds the expulsion of the Pupil from all schools of the Respondent.
Gregory Price Presiding Member
T. Michele O’Connor Board Member
John F. Spekkens Board Member
Dated at Toronto, Ontario on this 5th day of August, 2011.