COURT FILE NO.: 589/03
DATE: 20060717
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, CHAPNIK & E. MACDONALD JJ.
B E T W E E N:
STEPHANIE JACKSON
Applicant
- and -
TORONTO CATHOLIC SCHOOL BOARD, JOSEPH COMPER, PRINCIPAL of SACRED HEART CATHOLIC SCHOOL
Respondents
Peter J. Chapin & Margaret Parsons, for the Applicant
Susan Metzler, for the Respondent, Toronto Catholic District School Board
Thomas McRae, for the Respondent, Joseph Comper
Cheryl Milne, for the Intervenor, Canadian Foundation for Children, Youth & the Law
HEARD: May 22 & 23, 2006
THE COURT:
[1] Friday, April 5th, 2002, was not an ordinary day at Sacred Heart Catholic School in Toronto. Andre Allen, then eleven, brought a knife to school. At recess, he took the knife into the schoolyard where, it is said, he threatened one or more fellow students with the knife. After an inquiry, Joseph Comper, the school principal, imposed a limited expulsion on Andre of one year. Stephanie Jackson, the boy’s mother, appealed the principal’s decision to the Toronto Catholic District School Board (“the Board”). The Board denied the appeal; Ms. Jackson applies for judicial review to quash the suspension and for other relief. The Canadian Foundation for Children, Youth & the Law was granted intervenor status and supported the applicant’s request for judicial review.
[2] The main issues raised by the Applicant require answers to the following questions:
What is the standard of review to be applied to the Board’s decision?
Did Mr. Comper’s actions constitute a denial of procedural fairness to Andre?
Did the Board’s conduct of the appeal hearing constitute a denial of procedural fairness to Andre?
Was the knife a “weapon” within the meaning of s. 309(1) of the Education Act, R.S.O. 1990, c. E.2 (“the Act”)?
Was the Board’s decision patently unreasonable or, in the alternative, unreasonable?
Were Andre’s and Ms. Jackson’s security and liberty rights as protected by s. 7 of the Charter infringed by the expulsion?
BACKGROUND
[3] At the relevant time during the 2001/2002 school year, Andre was eleven and in grade six at Sacred Heart, one of the Board’s schools. Andre is African-Canadian and was identified as an “exceptional pupil” within the meaning of the Act. His exceptionality was Communication: Language Impairment.
[4] As early as grade two, Andre was designated a “special needs student”. In the year of his expulsion, half his school day was spent in a class of language-impaired students, six to eight in number, with a teacher and an educational student helper; the balance of the day was spent in a regular classroom.
[5] Throughout his schooling, Andre’s personality has been described in formal assessments and report cards as friendly, co-operative, polite, fair – a boy who has not allowed his impaired communication skills to discourage him from trying to do well.
[6] Starting in September 2000, Andre exhibited behavioural problems. On eight occasions, up to December 2001, Andre was found to have committed eight acts of an inappropriate nature, including hitting, using bad language on the bus, writing inappropriate notes, using the school computer to access pornographic websites, and bullying, threatening and fighting with other students. As a result of these actions, Mr. Comper recommended that Ms. Jackson take advantage of the school’s social worker to help with Andre’s behaviour. She refused, stating it wasn’t necessary.
THE INCIDENTS ON APRIL 5, 2002
[7] On this date, Andre brought a knife to school. It had a double-edged blade inside a silver pen. When the pen cap was removed, the blade was exposed. The blade was described as being anything from approximately one-half inch to two inches in length. Andre took the knife into the schoolyard for morning recess.
[8] Two girls, Trina and Felicia, reported Andre threatened Trina with the knife. A boy, Andrew J., reported Andre threatened Trina saying he was going to “cut her”. Ultimately, the knife fell to the ground and Trina and Felicia delivered the knife to a teacher, Mrs. Knox, at the same time reporting Andre’s threat. Mrs. Knox, in turn, told Mr. Comper who began an inquiry.
THE PRINCIPAL’S INQUIRY
[9] To completely understand the steps taken by Mr. Comper following the incident, we must refer to s. 309 of the Act:
s. 309(1) It is mandatory that a pupil be expelled if the pupil commits any of the following infractions while he or she is at school or is engaged in a school related activity:
- Using a weapon to cause or to threaten bodily harm to another person.
[10] Section 309 of the Act goes on to say:
(2) The principal shall suspend a pupil whom the principal believes may have committed an infraction for which expulsion is mandatory.
(3) Despite subsection (1), expulsion of a pupil is not mandatory in such circumstances as may be prescribed by regulation.
(4) If the principal suspends a pupil under subsection (2), the principal shall promptly refer the matter to the board or conduct an inquiry to determine whether the pupil has committed an infraction for which expulsion is mandatory.
(6) The principal’s inquiry shall be conducted in accordance with the requirements established by a policy of the board and the powers and the duties of the principal are as specified by board policy.
[11] Further, s. 2 of O. Reg. 37/01, made pursuant to the Act, provides:
- For the purposes of subsection 309(3) of the Act, the expulsion of a pupil is not mandatory if,
(a) the pupil does not have the ability to control his or her behaviour;
(b) the pupil does not have the ability to understand the foreseeable consequences of his or her behaviour; or
(c) the pupil’s continuing presence in the school does not create an unacceptable risk to the safety of any person.
[12] At the end of recess, the school secretary handed the knife to Mr. Comper, saying Mrs. Knox needed to speak to him. On the way to her class, Mr. Comper pulled the top off the pen and discovered the knife. Mrs. Knox reported her conversation with Felicia and Trina and told him of the threat. He then interviewed the two girls separately and concluded their stories had the ring of truth.
[13] Mr. Comper then checked with the two teachers who had been on yard duty. They were unaware of the incident. He then interviewed Andre in the presence of Mr. Cadieux, Andre’s teacher. At first, Andre denied knowing anything about the knife. Immediately following the denial, Mr. Comper stepped into the classroom and asked the class whose pen he was holding up. Students identified it as Andre’s. He asked if there was “anything special about the pen” and one of the children replied, “There’s a knife inside it”. It was at this point Andre acknowledged his earlier falsehood – he now said he got the knife from his cousin. Mr. Comper concluded that a pen with a concealed knife had been brought to school by Andre, that Andre had not been initially truthful and there was a need to isolate him because of the threat of violence.
[14] Mr. Comper then called his superintendent and the police since a weapon was involved. He also arranged for Trina and Felicia to write their statements separated from each other.
[15] Officer Clark arrived and took statements from Andre, Trina and Felicia. Mr. Comper prepared a “Notice of Suspension Pending Expulsion”, pursuant to s.309(2), above. Officer Clark delivered Andre to his home, together with the notice.
[16] In continuing his inquiry, Mr. Comper spoke with Ms. Jackson three times throughout the afternoon. As a result of those conversations, he interviewed a friend of Andre’s, Kelly, who reported he saw nothing happen. He also told Ms. Jackson that if the facts were as serious as appeared, Andre would likely be facing a limited expulsion.
[17] On Monday, April 8, Ms. Jackson came to the school and gave Mr. Comper the name of Andrew J. as a witness, one who purportedly would say he did not hear or see any threatening behaviour. Mr. Comper interviewed Andrew J., but what he reported did not match what Ms. Jackson said he would say.
[18] Mr. Comper’s inquiry ended on Monday, April 8. The written documentation of the inquiry, found in Volume 2, Board’s Record of Proceeding, tab D-2, shows the extent of Mr. Comper’s inquiry and conclusion.
[19] Section 309(7) of the Act sets out the obligation on the principal at the completion of an inquiry:
(7) If, after the inquiry, the principal is satisfied that the pupil committed an infraction for which expulsion is mandatory, the principal shall:
(d) impose a limited expulsion…; or
(e) refer the matter to the board for its determination.
[20] Mr. Comper chose to impose a limited expulsion rather than refer the matter to the Board for its determination. His testimony at the hearing and the documentation of his “principal’s inquiry” (Board’s R.O.P., tab D-1 – D-3), disclosed the background for his decision to impose a limited expulsion. These documents show that Mr. Comper looked at the written statements given by the students, considered what the other students told him and what Andre had said. In the end, he was satisfied that what the two girls described had substantially happened.
[21] Mr. Comper’s testimony and documentation also reveals that he considered Andre’s special needs when deciding that a limited expulsion was appropriate. He also considered Andre’s involvement in several situations of inappropriate behaviour over the course of the school year that were increasingly more aggressive.
[22] Finally, the record shows that Mr. Comper considered whether there were any mitigating circumstances as identified in the Board’s Policy S.S. 05: Expulsions. He concluded that Andre had shown he had the ability to control his behaviour, that he had the ability to foresee the consequences of his behaviour and that his continued presence created an unacceptable risk to the students.
[23] Mr. Comper imposed a limited expulsion from Sacred Heart School from April 8, 2002 to March 31, 2003. He told Ms. Jackson of a possible alternate appropriate placement for Andre in the Language Impaired class at St. Gabriel Lalemont School and gave him the opportunity to transfer there immediately, thus reducing the period of suspension. Ms. Jackson eventually decided to send Andre to St. Gabriel Lalemont.
THE APPEAL HEARING
[24] Under s. 311 of the Act, a parent of a minor may appeal a principal’s decision to impose a limited expulsion. The appeal is to the Board or a committee of the Board to whom the appeal is delegated. Such an appeal is final.
s. 311(3) The board shall hear and determine an appeal from a decision of the principal to expel a pupil, and, for that purpose, the board has the powers and duties set out in its policy. The decisions of the board are final.
[25] At the opening of the appeal, counsel for the Applicant submitted that the principal should “go first”. The submission was based upon the Board Policy S.S. 0.1, however that latter policy applied to occasions where the question of an expulsion had been referred to the Board by a principal. It will be recalled that in this matter, the principal undertook an inquiry and made the decision to impose a limited expulsion, pursuant to s. 309(7)(a) of the Act. At the time of Ms. Jackson’s application, the Board did not have a specific policy in place dealing with appeals of limited expulsions imposed by a principal after the inquiry mandated by the Act. Counsel for Mr. Comper submitted that since the hearing was an appeal of the principal’s decision, the Applicant should proceed first, setting out the specific grounds for appeal. After hearing submissions, the trustees retired, considered the submissions and returned to rule that, since it was an appeal of the principal’s decision, the appellant should go first.
[26] During the appeal, counsel for Ms. Jackson started to ask questions about the disciplinary histories of Felicia and Trina. Counsel for the Board objected, as the questions dealt with privileged information relating to another student. Counsel for Ms. Jackson moved seeking information about the disciplinary histories of the other students involved in the incident. The trustees rejected the motion. Counsel then moved seeking production of the student records of Trina and Felicia. Argument ensued and an adjournment was given.
[27] At the opening of the second day of the appeal on August 30, 2002, counsel re-argued in full the motion for the production of the student records of Trina and Felicia. The trustees denied the motion.
[28] Over the course of the two-day hearing, exhibits were filed by counsel for Ms. Jackson and Mr. Comper; six witnesses gave sworn testimony; Andre Allan, Stephanie Jackson, Joseph Comper, Officer David Clark, teacher Patricia Knox and teacher, Albert Cadieux. These witnesses were examined in-chief and cross-examined. After closing arguments by counsel, the trustees recessed to make their determination. When they returned, the trustees reported they were satisfied that Principal Comper had “considered all relevant factors in arriving at his decision” and the appeal was dismissed.
THE STANDARD OF REVIEW
- What is the standard of review to be applied to the Board’s decision?
[29] In considering the standard of review, we must apply the “pragmatic and functional” approach established by the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982. This approach requires us to consider (i) the privative clause; (ii) the expertise of the Tribunal; (iii) the purpose of the Act as a whole and the provision in particular; and (iv) the nature of the problem: a question of law or fact?
[30] First, we find the Act to contain a strong privative clause. The decisions of the Board are final according to s. 311 of the Act.
[31] Second, in making its decision, we find the Board to have functioned in an area where its expertise was engaged. At p. 1007 of Pushpanathan, Bastarache J. states that ‘expertise must be understood as a relative, not an absolute concept’. He suggests that an evaluation of relative expertise has three dimensions:
The court must characterize the expertise of the tribunal in question; it must consider its own expertise relative to that of the tribunal; and it must identify the nature of the specific issue before the administrative decision-maker relative to this expertise.
Under the Act, the Board possesses specific authority granted to it specifically in this case to develop policies dealing with suspension of students and expulsion of students. The Board has exercised this power and established a number of relevant policies. We find the Board to possess certain specialized knowledge in the area of education which requires a degree of deference. That knowledge persuades us that the Board’s expertise in this area is greater than that of the court. The specific issues were the appropriateness of Mr. Comper’s inquiry and of the suspension imposed. These are matters that directly relate to the Board’s expertise, particularly the matter of penalty.
[32] Third, we must examine the purpose of the Act in the light of Bastarache J.’s statement at p. 1009 of Pushpanathan:
Where the purposes of the statute and of the decision-maker are conceived not primarily in terms of establishing rights as between parties, or as entitlements, but rather as a delicate balancing between different constituencies, then the appropriateness of court supervision diminishes.
Thus, where the purposes of the statute require the Board to consider competing interests and to offer solutions that balances those interests of many parties, more deference is called for. In this matter, the Board had to balance the interests of Andre and his mother, as against those of the alleged victim and the interests of the other children in the school. Mr. Comper’s interest was to maintain a safe and non-threatening condition on the school premises. Thus, while Ms. Jackson and Andre and Mr. Comper have interests directly involved in this incident, there are also the interests of the other children at the school and the interests of their respective parents. We find that “polycentricity” identified by Bastarache J. in Pushpanathan to exist in the matter before us. Hence, this calls for deference on our part.
[33] Fourth, we find the question before the Board to have been one of mixed fact and law. It had to consider the evidence of what happened on April 5th, 2002, and following; it then had to apply the Education Act and the Board’s policies established under that Act. The Board’s finding was not one which will be of great, even determinative import for future decisions of lawyers and judges. As a question of mixed fact and law, the Board’s decision deserves deference from this Court.
[34] Applying the pragmatic and functional approach as outlined in Pushpanathan, we find the standard of review to be patent unreasonableness.
- Did Mr. Comper’s actions constitute a denial of procedural fairness to Andre?
[35] The denial of the right to a fair hearing removes from consideration an analysis of the standard of review:
Where a tribunal is said to have failed to give a party natural justice, the court does not engage in an assessment of the appropriate standard of review, but evaluates whether the rules of procedural fairness or the duty of fairness have been adhered to.
Megens v. Ontario Racing Commission (2003), 2003 30010 (ON SCDC), 225 D.L.R. (4th) 757 (Ont. Div. Ct.) at para. 12
[36] Ms. Jackson identifies components of Mr. Comper’s inquiry which she advances as examples of procedural unfairness. She cites:
(a) failure to provide reasonable notice of the “expulsion hearing”;
(b) failure to provide proper disclosure of the accusers’ witness statements;
(c) failure to permit the full answer and defence. Andre had no opportunity to challenge the evidence of his accusers, by cross-examination or otherwise;
(d) Andre did not have the right to counsel;
(e) the failure of Mr. Comper to give reasons for his decision.
[37] The above examples of alleged procedural unfairness misconstrue entirely the nature of the inquiry conducted by Mr. Comper. His actions must be viewed in the light of Cory J.’s judgment in R. v. M. (M.R.), 1998 770 (SCC), [1998] 3 S.C.R. 393:
…On one hand, it is essential that school authorities be able to react swiftly and effectively when faced with a situation that could unreasonably disrupt the school environment or jeopardize the safety of the students. Schools today are faced with extremely difficult problems which were unimaginable a generation ago. Dangerous weapons are appearing in schools with increasing frequency. There is as well the all too frequent presence at schools of illicit drugs. These weapons and drugs create problems that are grave and urgent. Yet schools also have a duty to foster the respect of their students for the constitutional rights of all members of society. Learning respect for those rights is essential to our democratic society and should be part of the education of all students. These values are best taught by example and may be undermined by those in authority.
R. v. M. (M.R.), p. 401
Teachers and principals are placed in a position of trust that carries with it onerous responsibilities. When children attend school or school functions, it is they who must care for the children’s safety and well-being. It is they who must carry out the fundamentally important task of teaching children so that they can function in our society and fulfill their potential. In order to teach, school officials must provide an atmosphere that encourages learning. During the school day they must protect and teach our children. In no small way, teachers and principals are responsible for the future of the country.
It is essential that our children be taught and that they learn. Yet, without an orderly environment learning will be difficult if not impossible. In recent years, problems which threaten the safety of students and the fundamentally important task of teaching have increased in their numbers and gravity. The possession of illicit drugs and dangerous weapons in the schools has increased to the extent that they challenge the ability of school officials to fulfill their responsibility to maintain a safe and orderly environment. Current conditions make it necessary to provide teachers and school administrators with the flexibility required to deal with discipline problems in schools. They must be able to act quickly and effectively to ensure the safety of students and to prevent serious violations of school rules.
R. v. M. (M.R.), p. 415
Yet teachers and principals must be able to act quickly to protect their students and to provide the orderly atmosphere required for learning. If a teacher were told that a student was carrying a dangerous weapon or sharing a dangerous prohibited drug the parents of all the other students at the school would expect the teacher to search that student.
School authorities must be accorded a reasonable degree of discretion and flexibility to enable them to ensure the safety of their students and to enforce school regulations. Ordinarily, school authorities will be in the best position to evaluate the information they receive. As a result of their training, background and experience, they will be in the best possible position to assess both the propensity and credibility of their students and to relate the information they receive to the situation existing in their particular school. For these reasons, courts should recognize the preferred position of school authorities to determine whether reasonable grounds existed for the search.
R. v. M. (M.R.), pp. 421-422
[38] What then did Mr. Comper do? He conducted an investigation of the incident by talking to all the students involved, including those identified by Ms. Jackson; he put the allegations to Andre and obtained his response; he spoke with Ms. Jackson several times and kept her informed; he reviewed Andre’s history of behavioural problems; he canvassed the mitigating factors set out in O. Reg. 37/01 and decided there were none; he took into account the students’ knowledge that Andre had brought a knife to school.
[39] Viewed in the light of R. v. M. (M.R.), we find the actions taken by Mr. Comper and the inquiry conducted to have been scrupulously fair, reasoned and appropriate. He conducted himself as we imagine most parents with children at Sacred Heart would hope a principal would – with respect for the rights of Andre and the rights of other children at the school. Mr. Comper’s actions did not constitute a denial of procedural fairness to Andre.
- Did the Board’s conduct of the appeal hearing constitute a denial of procedural fairness to Andre?
[40] The Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, (“SPPA”), applies to hearings conducted by the Board by way of appeal from a principal’s decision to impose a limited expulsion on a student.
[41] Ms. Jackson alleges the Board denied Andre procedural fairness citing several examples which we propose to deal with in the order set out in the applicant’s factum.
[42] Ms. Jackson submits the Board erred in not holding a de novo hearing. We reject this submission for two reasons. First, there was no obligation to conduct a de novo hearing since the nature of the hearing was an appeal from the principal’s decision, pursuant to s. 311(3) of the Act. Nothing in the Act requires a hearing de novo.
[43] Second, the hearing was, for all intents and purposes, a hearing de novo. The hearing was held over two days. All parties, including Ms. Jackson, had an opportunity to call evidence, examine and cross-examine witnesses and present argument. Notice of the hearing was given. The parties were represented by counsel. A written decision was delivered. It is difficult to imagine how a more complete hearing could have been held.
[44] Ms. Jackson submits the Board reversed the order of presentation and the onus of proof as examples of procedural unfairness. We disagree. There was no policy in effect at the time of the hearing that required the principal to present first, contrary to the Applicant’s submission. It was, after all, an appeal from the principal’s decision. The Board is the master of its own procedure, subject to any existing procedural policy in effect. Moreover, onus of proof was not a factor in the Board’s decision. The Board asked itself – had Mr. Comper considered all the relevant factors when he decided to expel Andre? The Board concluded he had.
[45] Ms. Jackson submits the Board relied on hearsay evidence, thus denying procedural fairness. We reject this submission. By virtue of s. 15(1) of the SPPA, the Board was entitled to receive and act upon hearsay evidence.
[46] Ms. Jackson submits Andre was denied the opportunity to make full answer and defence because the principal failed to call Trina and Felicia as witnesses, thus preventing her counsel the opportunity to cross-examine them. We reject this submission. They were available to be called by Ms. Jackson’s counsel, who chose not to do so. If they had been unforthcoming as witnesses, it was open to counsel to seek to have them declared hostile and subject to cross-examination.
[47] Ms. Jackson’s counsel sought the Ontario Student Records (“OSRs”) of Trina and Felicia at the hearing. The Board refused the request since under s. 260 of the Act, the OSRs are privileged. Apparently counsel intended to use the OSRs to test the credibility of the girls and to examine their disciplinary history, if any. If counsel had wished to test the girls’ credibility, they could have been called, as noted earlier in these reasons. We agree with the submission of the respondent Board that the contents of the OSRs were irrelevant.
[48] Ms. Jackson submits the Board permitted the hearing to be tainted by a reasonable apprehension of bias since the decision-maker at first instance became the de facto accuser on appeal. We find no merit in this submission. If there was a de facto accuser in the appeal, it was surely one (or both) of the two girls. Ms. Jackson’s counsel chose not to call them. The principal acted upon the information gathered during his inquiry and ordered the expulsion. That decision was appealed to the Board. In those circumstances, the principal could and should respond to the appeal, as contemplated by the statutory scheme.
[49] Ms. Jackson submits the Board’s counsel engaged in partisan conduct such that it raises a reasonable apprehension of bias. We reject this submission. Counsel gave the Board his opinion that since Ms. Jackson was the appellant, she should proceed first. We find nothing in the giving of such an opinion that would raise a reasonable apprehension of bias.
[50] Ms. Jackson submits there was a reasonable apprehension of bias flowing from comments made by counsel for the Board to Ms. Jackson’s counsel, outside the hearing room during a break in the proceedings.
[51] The leading authority on reasonable apprehension of bias is Wewaykum Indian Band v. Canada, wherein the Supreme Court of Canada stated:
In Canadian law, one standard has now emerged as the criterion for disqualification. The criterion, as expressed by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369, supra, at p. 394, is the reasonable apprehension of bias:
The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is ‘what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly’.
Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 60
[52] There is no evidence that would lead “an informed person” to think it more likely than not that the Board, whether consciously or unconsciously, would not decide fairly in light of the exchange between counsel. There must be actual evidence that the person would have affected the decision of the appeal panel. There is no evidence that the Board’s counsel influenced the decision of the trustees. We note this issue was not raised with the Board during the hearing or during the three months that intervened between the hearing dates.
[53] Ms. Jackson submits the Board failed to give reasons for its decision. The Board’s decision was as follows:
The Board is satisfied that the Principal of Sacred Heart Catholic School, Joseph Comper, considered all relevant factors in arriving at his decision.
The Board dismisses the appeal of the Parent.
[54] These reasons fall dangerously close to being inadequate:
The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors.
Gray v. Ontario (Disability Support Program, Director), 2002 7805 (ON CA), 212 D.L.R. (4th) 353 (Ont. C.A.)
[55] Absent the unusual nature of the facts of this case, the proper course of action would be to return the matter to the Board for further and better reasons. We say this despite s. 17(1) of the SPPA which provides:
17.(1) A tribunal shall give its final decision and order, if any, in any proceeding in writing and shall give reasons in writing therefor if requested by a party.
[56] In our view, s. 17(1) contemplates a situation where a tribunal issues its decision saying “appeal dismissed” without more. In that instance, the appellant may ask for written reasons explaining the decision. In this matter, the Board has given its decision “appeal dismissed” and then added the reasons for dismissing the appeal, because “The Board is satisfied that the Principal of Sacred Heart Catholic School, Joseph Comper, considered all relevant factors in arriving at his decision”.
[57] When we examine the rationale for requiring adequate reasons, we are reluctant to return the matter to the Board. Reasons are required to inform the losing party why they lost and to equip that party with sufficient information to effectively pursue an appeal, if desired. The only conclusion to be drawn from the Board’s reasons is that the Board was satisfied Mr. Comper had reacted appropriately to the initial information, conducted a fair inquiry, and imposed the appropriate penalty having regard to the mitigating factors in s. 2 of O. Reg. 37/01.
[58] Any suggestion of the inability of Ms. Jackson to effectively pursue her appeal is dispelled by the factum filed on her behalf, containing fifty-three pages comprising one hundred and seventy paragraphs. The factum attacks the decision of the Board on at least sixteen different fronts. It cannot be said the failure to give more detailed reasons has in any way impaired Ms. Jackson’s ability to mount an effective appeal.
[59] We therefore conclude the matter should not be returned to the Board merely to underscore the importance of giving adequate reasons. We find it would not be in the best interests of the parties, given the particular facts of this case. However, the Board should be made aware of the importance of giving adequate reasons in any of its decisions, having regard for the principles cited in Gray v. Ontario, noted above.
- Was the knife a “weapon” within the meaning of s. 309(1) of the Education Act, R.S.O. 1990, c. E.2 (“the Act”)?
[60] The applicant made lengthy submissions to the effect that the knife was not a weapon, within the meaning of s. 309(1)(2) of the Act. We reject those submissions. The applicant’s factum, para. 92(c) states that the knife could only be a weapon if Andre made the threat of which he was accused. This is precisely the conclusion to which Mr. Comper came, based on his inquiry, that Andre threatened someone with the knife. The requirements of s. 309(1)(2) were satisfied at that point. The knife was a weapon for the purposes of the section.
- Was the Board’s decision patently unreasonable or, in the alternative, unreasonable?
[61] We have concluded that the standard of review of the Board’s decision is patent unreasonableness. We have also concluded that Mr. Comper’s conduct, viewed from the perspective of Cory J.’s comments in R. v. M. (M.R.), was little short of impeccable. In rejecting Ms. Jackson’s appeal and confirming the actions of Mr. Comper, the Board’s decision was not patently unreasonable.
- Were Andre’s and Ms. Jackson’s security and liberty rights as protected by s. 7 of the Charter infringed by the expulsion?
[62] Ms. Jackson submits that the respondents deprived her and Andre of their rights to liberty and security of the person under s. 7 of the Canadian Charter of Rights and Freedoms. Specifically, she contends that the right to choose her son’s school is a “liberty” within the meaning of s. 7; and since the expulsion left Andre “distraught and had a devastating impact on his schooling and self-esteem,” it infringed his right to security of the person, as guaranteed by s. 7.
[63] We assume, without deciding, that the Charter applies to the actions of Mr. Comper and the Board in applying sections 309 and 311 of the Act; that is, the School and the Board, particularly in regard to the decision to expel a student, are subject to and governed by the Charter.
[64] The Supreme Court of Canada in Blencoe v. B.C. Human Rights Commission, 2000 SCC 44, [2000] 2 S.C.R. 307 at para. 49 held that “liberty” is engaged where state compulsions or prohibitions affect important and fundamental life choices, such as where persons are compelled to appear for fingerprinting or to produce documents. In general, individuals are entitled to make decisions of fundamental importance free from state interference, including psychological interference. As stated in Blencoe at para. 54, however, “such personal autonomy is not synonymous with unconstrained freedom”.
[65] Security of the person” may protect both the physical and psychological integrity of an individual. At the same time, not all state interference with an individual’s psychological integrity will engage s. 7. Only interference that constitutes “serious state-imposed psychological stress” will amount to a breach of an individual’s security of the person (Blencoe, supra, para. 57). Moreover, even when the interference is serious, s. 7 is not always engaged.
[66] Pursuant to s. 179(1)(6) of the Act, every Board shall,
(6) provide instruction and adequate accommodation during the school year for the pupils who have a right to attend a school under the jurisdiction of the Board.
[67] Under s. 31(1) of the Act, a pupil has no right to attend one school in a particular area or school district as opposed to another.
[68] The jurisprudence underscores the proposition that attendance of children at a particular school is not a legal right, benefit or license. No pupil, therefore, has “any vested interest” in any single school. See, for example, Robertson v. Niagara South Board of Education (1974), 1973 732 (ON SCDC), 1 O.R. (2d) 548 at 552 (Div. Ct.); Crawford v. Ottawa (City Board of Education (1970), 1970 301 (ON SC), 15 D.L.R. (3d) 141 (Ont. H.C.), aff’d 1970 385 (ON CA), 17 D.L.R. (3d) 271 (Ont. C.A.).
[69] Moreover, the assertion of Ms. Jackson that Andre suffered injury or interference with his psychological integrity was completely unsubstantiated. No particulars were advanced to underscore this bald assertion of injury.
[70] In the circumstances, there is no evidence of deprivation to Ms. Jackson’s or Andre’s liberty or security of the person rights sufficient to engage s. 7 of the Charter.
[71] If the rights of the applicant and/or Andre were impaired in any way, the actions taken were effected in accordance with the principles of fundamental justice. The Court in Suresh v. Canada (Minister of Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at para. 113 explained the relationship between the common law duty of procedural fairness and s. 7:
The principles of fundamental justice of which s. 7 speaks, though not identical to the duty of fairness… are the same principles underlying that duty. As Professor Hogg has said"The common law rules [of procedural fairness] are in fact basic tenets of the legal system, and they have evolved in response to the same values and objectives as s. 7": see P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.) vol. 2, at para. 44.20.
[72] The principles of fundamental justice require, at minimum, compliance with the common law principles of procedural fairness. For the reasons given above, the requirements of procedural fairness have been met in this case. Additionally, there is no basis for a finding that any substantive unfairness has resulted in this case. The decision is fundamentally just in all of the circumstances.
[73] Furthermore, expulsion of a student (particularly, as here, a limited expulsion whereby the student enters into a parallel school system) can be sustained under s. 1 of the Charter as a reasonable limit, which is justified in a free and democratic society as per the Supreme Court’s test outlined in R. v. Oakes (1986), 1986 46 (SCC), 26 D.L.R. (4th) 200.
[74] Maintaining safe schools is a significant objective; the means (expulsion or limited expulsion) are fair and are rationally connected to the objective; the limitation constitutes a minimal impairment of the student’s rights and there is proportionality between the objective (a safe school environment) and the effects of the limitation on a student’s rights or freedoms.
[75] Thus, although the Act does not confer, either expressly or by necessary implication, the power to limit the rights guaranteed by the Charter, when one subjects the action taken in this case to the test set out in s. 1, the action is found to constitute a reasonable limit that can be demonstrably justified in a free and democratic society. In other words, the use made of the discretion conferred on Mr. Comper by statute clearly had the effect of keeping the limitation within reasonable limits.
CONCLUSION
[76] The respondents acted in good faith at all times, and in accordance with the principles of fundamental justice and procedural fairness. Their actions were taken in fulfillment of their duties and responsibilities under the Act to maintain order and discipline, and to ensure that the school was kept safe and secure for all its students. In doing so, there was no violation of the applicant’s and/or Andre’s rights to liberty and/or security of the person under s. 7 of the Charter.
COSTS
[77] The parties have fifteen days from the date of issue of these reasons to make brief written submissions as to costs.
CARNWATH J.
CHAPNIK J.
E. MACDONALD J.
Released: 200607
COURT FILE NO.: 589/03
DATE: 20060717
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, CHAPNIK & E. MACDONALD JJ.
B E T W E E N:
STEPHANIE JACKSON
Applicant
- and -
TORONTO CATHOLIC SCHOOL BOARD, JOSEPH COMPER, PRINCIPAL of SACRED HEART CATHOLIC SCHOOL
Respondents
JUDGMENT
THE COURT
Released: 20060717