CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
TS
Appellant
-and-
Dufferin-Peel Catholic District School Board
Respondent
DECISION
Adjudicator: Jennifer Scott
Indexed As: TS v Dufferin-Peel Catholic District School Board (EA s.311.7)
APPEARANCES
TS, Appellant
George (Knia) Singh, Counsel
Dufferin-Peel Catholic District School Board, Respondent
Gillian Tuck Kutarna, Counsel
Introduction
1This is an Appeal filed under section 311.7 of the Education Act, R.S.O.1990, c. E2, as amended (the “Act”). The Appellant appeals her son’s expulsion from his own school on July 5, 2019. The Respondent expelled the Appellant’s son for allegedly committing a sexual assault on another female student at school.
the law
2Section 310(1) of the Act provides 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 or cannabis to a minor.
7.1 Bullying, if
i. the pupil has previously been suspended for engaging in bullying, and
ii. the pupil’s continuing presence in the school creates an unacceptable risk to the safety of another person.
7.2 Any activity listed in subsection 306(1) that is motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour religion, sex, age, mental or physical disability, sexual orientation, gender identity, gender expression, or any similar factor.
- 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.
background
3The Appellant’s son was a grade 9 student (the “Student”) with the Respondent when the alleged sexual assault took place.
4On April 8, 2019, a grade 9 female student (the “Complainant”) told her Vice Principal that something happened that she did not want to happen. She told her Vice Principal that another student was being really touchy. She did not name the other student who was involved. The Vice Principal told the Complainant that there was nothing that he could do if she did not identify the student.
5On April 10, 2019, the Complainant told the Vice Principal that she went with the Student to the library in December 2018. She said the Student was really touchy and he started to put his hand in her pants. The Complainant told the Vice Principal that she kept moving away from the Student, but every time she moved, the Student moved closer to her.
6On April 18, 2019, the Student received a 20-day suspension for committing a sexual assault. The Student served the suspension.
7On May 3, 2019, the Complainant told the Vice-Principal that the Student had forced her to have sex in the school library on the same day as the unwanted touching occurred.
8On May 15, 2019, the Student received a 20-day suspension for the second incident (non-consensual sexual intercourse) in the school library.
9On June 6, 2019, the Appellant and the Student were advised by a Superintendent with the Respondent that he was recommending to the Respondent’s Discipline Committee that the Student be expelled from his school.
10By decision dated July 5, 2019, the Respondent expelled the Student from his school only. The Appellant does not raise an issue with the timing of the expulsion decision.
11The Appellant filed this Appeal with the Child and Family Services Review Board (“CFSRB”) on August 7, 2019.
12The issue on this Appeal is whether the Student engaged in non-consensual sexual intercourse in the school library, since this is the reason for the expulsion. The Respondent acknowledges that the Student has already received a suspension for the sexual touching in the library.
13The Student denies that sexual intercourse took place in the school library. He states that consensual sexual intercourse took place in the girls’ washroom on the second floor of the school and in a gas station washroom across the street from the school.
14The Complainant denies that consensual sexual intercourse took place in the two washrooms.
15On October 8, 2019, an Order was issued overturning the Student’s expulsion. These are the reasons for that Order.
analysis
Issue on the Appeal
16An expulsion appeal before the CFSRB is a hearing de novo. This is because the proceeding before the CFSRB is likely the first time where witnesses are called to give direct evidence about the events at issue. Under the CFSRB Rules of Procedure, the school board calls its case first, followed by the appellant. The school board bears the onus of establishing that the student should be expelled. The CFSRB does not sit in review of a school board’s expulsion process or decision.
17In determining whether a student should be expelled, the CFSRB first determines whether the alleged incident took place. Upon finding that the incident took place, the CFSRB considers the mitigating and other factors set out in Act and the Regulations in order to determine whether an expulsion is appropriate and if so, the kind of expulsion that should be given.
18In this Appeal, the Appellant asserts there was no sexual intercourse in the school library and consensual intercourse occurred in two different washrooms. The Appellant agrees that if I find non-consensual sexual intercourse took place in the school library, the expulsion is appropriate.
19In light of the Appellant’s admission, the only issue before me is whether non-consensual sexual intercourse occurred in the school library.
What is a sexual assault?
20There is no definition of “sexual assault” in the Act. In the absence of a statutory definition of sexual assault, I have relied on the definition of sexual assault that is used in both the criminal and civil contexts. In order to establish the act of sexual assault, three elements must be proven: touching, sexual nature of the contact, and the absence of consent. See R. v. Ewanchuk, 1999 711 at para. 25 (SCC).
21The Complainant says she was forced to have sexual intercourse with the Student in the library without her consent. The Student says they did not have sexual intercourse in the library. Credibility is a central issue in this case.
22In assessing credibility and reliability in this case, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 252 (BC CA). In particular, I have sought to determine which account of the facts is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable” in the circumstances.
23I have also been guided by the Court of Appeal’s discussion of veracity and accuracy in R. v. Morrissey, 1995 3498 (ON CA), at p. 205:
Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness' veracity, one speaks of the witness' credibility. When one is concerned with the accuracy of a witness' testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.
Complainant’s Evidence
24The Complainant testified that she went to the library with the Student on December 19, 2018 after school around 3:00 p.m. They entered the library through the front doors and went down the stairs to a corner of the library. They sat at a desk. The Complaint did her math homework and the Student was on his phone. About an hour and one-half later, the Student put his arm around the Complainant’s chair. He then put his hand on the Complaint’s shoulders, her legs and in between her legs. The Complainant testified that the Student started putting his hand in her tights. The Complainant testified that every time the Student touched her, she would move closer to the wall. The Complainant testified that she did not say anything to the Student.
25The Complainant testified that when she got up to go, the Student asked her to stay a bit longer. The Complainant told him she had to get home. While she was trying the leave, the Student grabbed her left wrist and pulled her to the opposite corner of the library. The Student continued to hold on to the Complainant’s left wrist. With his other hand, he pushed the back of the Complainant’s leg. The Complainant fell down with her back against the wall and her legs on the floor. One leg was bent and the other leg was straight. The Student pulled the Complainant’s tights down to just below her knees. He pulled his own pants down. The Student got on top of the Complainant and had sexual intercourse. The Complainant testified that she told the Student to stop, tried to push him away, called for help, and was told by the Student that she was too loud in her protestations. The sexual intercourse lasted more than a minute. After he stopped, the Student got up and said he would text or call the Complainant.
26The Complainant told two close female friends about the incident over the Christmas break in December 2018. One of these friends is no longer a friend (the “former friend”).
Student’s Evidence
27The Student testified that he met the Complainant in a class that they shared at the beginning of the school year. They would talk at school during washroom breaks and over social media using Instagram and iMessage. They also spoke over the phone and on Face Time. In late November and early December, they communicated frequently.
28The Student testified that he asked the Complainant to go to the library on December 19, 2018 after school. He testified that the night before, he had asked the Complainant to be his girlfriend and she agreed.
29He testified further that they walked into the library together and went down the stairs and sat on the floor where the electrical outlet is. They plugged in their phones and the Complainant pulled out her homework. The Student said he was on his phone.
30The Student testified that he asked the Complainant if he could kiss her and she leaned over, as did he. He then asked her if he could touch her and she said yes. The Student touched the Complainant underneath her underwear. The Student testified that as they were “making out”, a librarian came by and started to put books away. She told the Student and the Complainant that they had to find seating. The Student testified that they went upstairs to find somewhere to sit. They found a coffee table with lounge chairs and kissed some more. The Student testified that before the Complainant left the library, he told her that he wanted to focus on school and football. The Student denied that they had sexual intercourse in the library.
31The Student testified that after the library, he and the Complainant were friends only, but were sexually intimate. They had consensual sexual intercourse after school in the second floor girls’ washroom and in the gas station across the street from the school. The Student testified that during both times, the Complainant bled on him. He testified that he believes the Complainant bled on him in the girls’ washroom because she was a virgin and bled on him in the gas station washroom because she unexpectedly got her period. Before they left the gas station, the Complainant showed the Student her “period app”, which said her period was due in two days. The Student testified that he was disgusted that the Complainant bled on him and that he did not want to have anything further to do with her after this.
32The Student called another student at the school to testify on his behalf. This witness described himself as someone who helps people at school get with the people that they like. He testified the Complainant asked him to give the Student a condom so that she and the Student could have sex. He testified further that the Complainant told him that she had sex with the Student in the second floor girls’ washroom and asked him to provide another condom to the Student so that they could have sex again.
33This witness stated that he is the only one who knows what really happened between the Student and the Complainant. In fact, this witness has no idea: he was not there. At best, he provided condoms to the Student. This witness repeatedly called the Complainant a liar during his testimony. I had to remind him that it was my job to determine the credibility of the Student and the Complainant. He had a snap chat conversation with the Complainant created, in his own words, for the sole purpose of proving that she was guilty. He stated the Complainant offered to pay him six hundred dollars if he got her former friend back on her side. He testified further that previously, the Complainant offered him two hundred dollars, but never gave the money to him even though he asked for it a couple of times.
34In my view, this witness was so invested in proving the Complainant was, in his words, a liar that his evidence lacked any objectivity. He embellished what he knew, over-stated his role between the Student and the Complainant, and made statements to otherwise demean the Complainant with no supporting evidence. He admitted that he was prepared to take money from the Complainant in order to get her former friend back. I find this witness had no credibility and as such, have given his evidence no weight.
Social Media Posts
35There are several snap chat conversations between the Complainant and her former friend about the alleged sexual assault that were sent in June or July of 2019, that were produced by the Appellant. The Complainant testified that one of the snap chat conversations did not take place and that another snap chat conversation has been altered by her former friend. The Complainant testified that her former friend had created false snap chat messages before.
36The evidence is somewhat unclear with respect to how snap chat messages can be altered or falsely created. The Vice Principal testified that there are apps which enable someone to alter a snap chat conversation, but did not identify what apps he was referring to or how they worked. The evidence is clear that once a message is saved by a person who contributed to the snap chat, the person who saved the chat can alter their own messages only. I have no evidence that they are able to alter the messages of the other person on the chat.
37I find the respondent has not established that the snap chat conversations between the Complainant and her former friend, produced by the Appellant, were falsified by the former friend for several reasons.
38One, beyond the bald assertion by the Complainant that the snap chat posts were false, there is no reliable evidence that this occurred. The Complainant stated one snap chat did not occur and the second snap chat has been altered. In order to prove the former friend falsified snap chats, more evidence is required than the mere assertion by the Complainant.
39Two, the snap chat conversation that the Complainant says never occurred is lengthy and detailed. It would require a great deal of effort to create a conversation that mirrors the kind of conversations and the language used between the Complainant and her former friend. I am not sure why the Complainant’s former friend, who supported her up until the summer of 2019, would go to such lengths. The former friend is the person who encouraged the Complainant to report the alleged sexual assault in the first place.
40Three, there are two versions of one snap chat conversation between the Complainant and her former friend. The Complainant says one version is correct and the other version has been altered. However, the alleged altered version was saved by her former friend. This means only the friend’s posts could be altered, not the Complainant’s. I rely on this conversation for the Complainant’s posts only.
41Four, the snap chat conversation that the Complainant agrees took place does not flow and appears to have information missing. Conversely, the version produced by the Appellant flows logically and does not appear to have missing information.
42For these reasons, I find the snap chat conversations produced by the Appellant are accurate. I rely upon these conversations only to the extent that they reflect what the Complainant said about the sexual assault. I do not rely upon them with respect to what her former friend said. The former friend did not give evidence at the hearing and was not subject to cross examination. In the absence of her testifying, I am not prepared to consider her snap chat posts.
43In what I believe to be the first snap chat, the Complainant said the following about the alleged sexual assault:
My mom wasn’t surprised about having sex she was surprised that it was rape I never once told her that and we dated for a day literally one day it doesn’t count.
That we went to the library he started feeling me up inside the library and putting his hands in my pants.
I said he tried to get me into the second floor bathroom w him first of all.
I never told anyone it happened twice.
It was oneeeeee.
Because he kept asking me if I was about it n when I said idk it happened n then I told u I don’t know if it counts as rape if it starts n then u say no right after that’s why acc. I said that cuz I didn’t know if it counted as rape and then he started feeling me up in the halls m shut waiting for me after gym.
No [name of former friend] I said that because if it wasn’t considered rape then it wouldn’t be wrong if it happened again but it was rape I said no after n u were the one who said to be careful cuz it could be rape and it was but I didn’t realize it was til after he wouldn’t frickin leave me alone Ok when started feeling me up in the halls.
I said the rape happened one place.
(emphasis added)
44In this same exchange, the Complainant admitted that she had taken a picture of a pregnancy test off Google because her mother threw out the real test which showed the Complainant was pregnant after the alleged sexual assault by the Student. The Complainant told her former friend that she had an abortion.
45In the second snap chat, the Complainant posted the following message to the former friend:
….K my mom never once said my story didn’t add up. Ppl hating on u cuz of me was not once my fault. I talk to [name of student] cuz he’s the only frickin person I can talk to now. U say u were there for me and u were trying to help me and be there for me and I said I appreciated it and the only thing u said to me was I was lying. U don’t get to decide whether or not I’m lying or not. My story did not change once. Jus cuz ppl said it did or said other shit doesn’t mean that I lied or anything. Yea I showed u a fake pregnancy test cuz my mom ducking threw out the real one but that at not point means I ever lied and I’m not gonna jus stand here and take that shit.
(emphasis added)
46During her evidence before me, the Complainant stated she did not become pregnant after the alleged sexual assault and did not have an abortion.
Did a sexual assault occur in the school library?
47The Respondent bears the onus of establishing, on a balance of probabilities, that the Student engaged in non-consensual sexual intercourse with the Complainant in the library on December 19, 2018. I find the Respondent has not met its onus for the following reasons.
48The Complainant testified that after the sexual touching in the library, the Student pulled her to the opposite corner of the library. The library is both a school library and a public library. It seems unlikely that the Student would have forced the Complainant to the opposite corner of the library at 4:30 in the afternoon when people were still in the library.
49It is also unlikely that the Student would have engaged in non-consensual sexual intercourse in a public space while the Complainant was, according to her evidence, protesting loudly. It is more probable that such an act would be committed in a private space. There is a significant difference between touching, which could be concealed in a public space, and sexual intercourse where both parties were allegedly undressed.
50In the Complainant’s snap chat posts, she talks about not knowing that a sexual assault took place until after a subsequent incident occurred when the Student touched her inappropriately in the school hallway. Her snap chat post is contrary to her evidence before me that she told the Student to stop, tried to push him away, called for help, and was told by the Student that she was too loud in her protestations. This is not the response of someone who did not know the alleged sexual intercourse was not consensual. Moreover, had the incident occurred as described by the Complainant, her lack of consent would not have come to her later on as described in her snap chat post. She would have known it at the time. Her snap chat post and her evidence are contradictory.
51In the snap chat posts, the Complainant talks about becoming pregnant and having an abortion. She denied that she became pregnant during her testimony before me. I do not know why the applicant would have said this in a snap chat post and it raises a significant issue with respect to her credibility.
52The Complainant had difficulty giving her evidence. While I understand that giving such evidence is not easy, it took the Complainant a great deal of time to answer questions. There were long gaps between the questions asked and the answers given. It did not appear that the Complainant was overwhelmed or impacted by her emotions when answering questions. Rather, it appeared that she required time to formulate her answers. Conversely, the Student gave his evidence in a forthright manner.
53During the hearing, the Complainant requested that she be able to give her evidence without seeing the Student. We did not have a screen available to meet this request. We were, however, able to accommodate it by placing the Student behind a pillar in the hearing room, with his father in front, to block him from the Complainant’s view. This was by no means an ideal solution. It also required the Student to leave and enter the hearing room in such a way so as to avoid the Complainant during breaks. This meant he was not able to move freely at the hearing centre.
54At the end of the Complainant’s evidence, she asked to be able to attend the balance of the hearing. This request was denied because the hearing was in camera. No members of the public were permitted in the hearing room and witnesses were excluded. I had assumed that in making the request not to see the Student when testifying, the Complainant did not want to experience further harm by seeing him. Her request to remain for the balance of the hearing was surprising to me and put into question the reason for her request to not see the Student when testifying.
55These factors have raised significant issues in my mind regarding the Complainant’s allegation that the Student engaged in non-consensual sexual intercourse in the school/public library at 4:30 in the afternoon on December 19, 2018. I find the Respondent has not established, on a balance of probabilities, that the Complainant was sexually assaulted that day. Given this finding, there is no basis upon which to expel the Student.
56Before concluding this Decision, there is one further issue that I would like to address.
57The Student relies on sexual activity in two washrooms after the library, which he says was consensual, in order to disprove the Complainant’s allegations in the library. While I understand that post-offence conduct may be relevant in establishing prior consent, it is difficult to apply that logic in this case when the Student says there was no sexual intercourse in the library. In other words, he is not saying the incident occurred and was consensual; rather, he is denying it ever happened.
58Relying on post-offence conduct in this case is problematic because it feeds into the myths and stereotypes women face when they report sexual assaults, the primary one being that their sexual conduct makes them less worthy of belief. I have found the Complainant is not credible for the reasons stated. These reasons have nothing to do with any sexual activity that may or may not have taken place after the library. To be clear, I make no finding as to whether the Complainant and the Student engaged in consensual sexual intercourse in the two washrooms.
order
59The CFSRB orders that:
a. The Respondent’s decision to expel the Student from his own school is quashed.
b. The record of expulsion shall be expunged from the Student’s Ontario Student Record and all other related documents held by the Respondent shall be amended accordingly.
confidentiality order
60Pursuant to Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure, parties and their representatives must not use, share, discuss or disclose any CFSRB documents or decisions or any other documents or information provided or used in this Appeal with anyone, including through the media or online. The CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB’s proceedings, except with an order of the Court or the CFSRB, as appropriate.
61The Order overturning the expulsion was issued on October 8, 2019. On the same day, the Respondent requested an urgent order permitting it to give the Order to the Complainant so that she could determine where to go to school. There is no compelling reason to waive confidentiality with respect to the Order dated October 8, 2019 and this Decision.
62It is critically important that all parties respect the confidentiality of this process and the Decision rendered, especially in light of the social media that students use and the impact of that social media on the school. The only information that should be provided to the Complainant is that the expulsion has been overturned. Prior to giving the Complainant this information, it might be helpful for counsel to speak to determine whether the Student wishes to return to his school.
Dated at Toronto, October 10, 2019.
Jennifer Scott
Jennifer Scott
Associate Chair