'NO ONE ELSE HAS THESE POWERS'

Not only did the school board possibly breach Ontario's Education Act
in expelling five PCVS students, two local lawyers say the case also
opens up a Pandora's Box of questions concerning the constitutional
rights of students.

Two sets of parents are launching an appeal to the Child and Family
Services review board -- one on March 2 and another March 6 -- after
five boys were expelled in December from PCVS.

As they prepare for the hearings, the parents, as well as their
lawyers, grapple with inconsistencies in provincial policy and what
they call a questionable investigation by the school.

In lawyer Christopher Spear's submission for the expulsion committee
hearing, he states "the school and school board have ignored or
breached virtually every provision in the Education Act and KPRDSB's
own administrative policy."

Spear said the school violated the student's right to know what he was
being charged with, his right to have a parent present when questioned
about possible criminal offences and his right to be questioned
without inducements or threats.

Then there's the school's "gross invasion of privacy" by rifling
through the contents of a student's cellphone and cross examining
students on events and activities outside of the school forum or
school time, Spear's submission states.

"It is questionable whether the school is meeting its statutory
obligations to the students at all when students are called out of
class to answer for activities conducted entirely off school," Spear
states.

The Safe Schools Act, or Bill 212, was passed in June 2007, said
Patricia MacNeil, spokesperson for the Ministry of Education.

The act amended sections of the Education Act and made changes that
tightened up the rules for suspensions and expulsions.

It provides a province-wide code of conduct, with the intent that all
members of a school community feel respected and safe from violence,
bullying, drugs and alcohol, she said.

The lawyer working on the March 6 appeal for Barry and his son Mark,
Donald White, said he is equally puzzled by the investigation and the
rules laid out in the Safe Schools Act.

White said he is also concerned mistakes were made in the
investigation and if the school followed "due process."

"Anyone who is being accused by the police, they have to be cautioned
of their rights. I don't think that safeguard was done here," White
said. "I don't know if (schools) are required to do it. I think they
should be required to do it. If it was a criminal case (suspects)
would have to be cautioned.

"They didn't even have a statement signed by this kid."

"There is an issue whether school boards are subject to the charter in
these cases. I don't have an answer for that."

At the appeal, Spear said, the board can confirm the decision, change
the decision, remove conditions or even overrule the decision and
reinstate the student.

"It's a full appeal of the school board's review of the decision,"
Spear said. "The whole thing could be turned over."

Rusty Hick, superintendent of schools and operations for the Kawartha
Pine Ridge District School Board, said the appeal hearing will focus
exclusively on the facts, unless new information has come up.

"It's not like a court of law. It's a confidential, formal hearing,"
he said. "They ask, 'why did the board expel this individual.'

"It's almost like doing the whole thing over again in front of a
different panel."

Either side can call witnesses to make statements in front of a
three-member panel, Hick said.

Hick said there has only been one appeal case for the local public
board in the last five years, although he wouldn't provide details of
the case.

The case also raises several constitutional questions, White pointed
out, although those issues are not likely to be debated at the level
of the current appeal.

Nonetheless, they're questions that make Joan wonder if her appeal is
a test case of the Education Act, Joan said.

"This becomes a constitutional issue," White said. "No one else has
these powers, which I can think of. Employers certainly don't have the
authority to call their employees in and haul them over the coals or
do drug testing or search their lockers.

"These are big, big questions."

If Joan is successful at the appeal level, she could go further with a
civil case, she said, but that is time-consuming and costly.

Expulsion vs. Suspension

The principal must consider a suspension, which means the actions by
the student will have a negative impact on the overall school climate,
for the following offences:

Threaten to seriously hurt another person

Have alcohol or illegal drugs

Are under the influence of alcohol at school

Swear at a teacher, principal or another person in a position of
authority

Vandalizing the school or property, such as cars, on school
property

Bullying

Persistent truancy

School boards can also consider a suspension for:

Skipping school

Persistent opposition to authority Smoking on school
property

Theft

Encouraging harmful behaviour (such as cheering on a fight between two
students)

Conduct detrimental to moral tone to school

Mandatory suspensions

The principal must suspend and begin an investigation to decide
whether to recommend expelling the student for the following offences:

Having a weapon, including a firearm

Using a weapon to threaten or hurt another person;

Physically hurt another person so that person requires medical
attention

Sexually assaulting someone

Trafficking (sell) weapons or illegal drugs Committing a
robbery

Giving alcohol to a person under 19 years old

Other offenses that could lead to an expulsion:

Behaviour that is harmful to the physical or emotional well being of
others at school

Threatening to seriously hurt another person

Vandalizing the school or property on the school

Physically assaulting someone

Hate-motivated violence

Have or misuse any harmful substances or

Inciting harmful behaviour (such as encouraging a fight)

SOURCE: Justice for Children and Youth and the Kawartha Pine Ridge
District School Board Safe, Caring and Restorative school's policy.