WHOSE RIGHTS WIN?

Expulsions force battle between a school board, the Charter of Rights
and student safety

A legal battle has been launched in Peterborough over the powers of
Ontario's Education Act versus the rights of people under Canada's
Charter of Rights and Freedoms in a case that left five students
expelled from school.

At the centre is a Peterborough mother who is upset at her son's
school, PCVS, because she says it investigated an off-school party
incident and searched backpacks and a cellphone, which resulted in
several expulsions.

While the public school board says it has the authority under
Ontario's Education Act, the mother's lawyer says those powers violate
personal rights and freedoms.

The dispute between the board and family that started in December will
be the subject of an appeal hearing on March 2.

Let's start from the beginning with what the student's mother says
happened.

Joan knows her son smoked pot.

She even knows he sold a $10 bag of marijuana to a friend at a party a
couple of months ago.

But when her 17-year-old son was expelled from PCVS in December, she
felt the school had gone too far.

"The issue is not whether or not he smoked pot, it's whether the
principal and vice-principal should have more power than the chief of
police by violating the Charter of Rights," Joan said. "It should be
none of their business."

Their names have been changed to protect the youth from being
identified. (We'll call the mother Joan and her son, Nick).

In November, the school launched an investigation into allegations
that six students sold and consumed drugs on and off school property,
according to Joan.

The Kawartha Pine Ridge District School Board told The Examiner it
would not discuss individual cases or give its side in this incident
even though the family has gone public.

"It all started when one of the student's cellphones was taken away by
the vice principal," Joan claims. "He (PCVS vice-principal Ronald
Macdonald) removed the names and phone numbers of everyone, brought
them into his office and basically forced confessions of drug
trafficking out of them," she said.

Joan said her son was called into the vice-principal's office after
his name was found in the cellphone.

Nick told his mom that while in the office, the vice-principal "put
his hand on the phone and said, 'tell me you've been trafficking drugs
or I'll call the police.'"

Joan said the police were called, but they dismissed the charge,
leaving the school to handle the matter.

Nick admitted to his mother he sold a $10 bag of marijuana to another
student at a house party in October, Joan said.

"This is a party that was held off the school premises and outside
school hours," she said.

Six students were suspended on Nov. 11, Joan said.

After board expulsion hearings at the board offices on Fisher Drive in
December, she said, four were expelled from their school and one was
expelled from all schools in the board.

"So now those students are all in limbo trying to get enough credits
and figure out how to graduate from Grade 12," she said.

The sixth student who was suspended was not expelled and allowed to
return to class, Joan said.

PCVS principal Dinise Severin declined to comment to The
Examiner.

According to the public board's Safe, Caring and Restorative Schools
policy, the principal is authorized to suspend a student for up to 10
days.

The principal may suspend a student for up to 20 days in consultation
with the superintendent. A suspension will not exceed 20 days.

There are two different kinds of expulsions. Students can be expelled
from one school or all board schools. Nick was expelled from his
school, not all schools in the board.

The principal issues a suspension to the student first, then
investigates before making a recommendation to expel or not.

A recommendation to expel means there will be a hearing before the
school board to determine if the student will be expelled.

An expulsion from one school lasts a minimum of 21 school days. During
that time of suspension pending expulsion, the student will be
assigned to a program for suspended students.

An expulsion from all schools in the board can only happen after
there's been a hearing in front of the school board. Students who
receive this kind of expulsion are placed into a program for expelled
students.

At Nick's expulsion hearing, Joan said Severin told her the school is
acting in the best interest of the student and the rest of the school.

"Dinise Severin says she is acting as a judicious parent by doing an
investigation for things that happen off school property outside of
school time," Joan said. "Those were her words, she's the judicious
parent."

Rusty Hick, superintendent of schools and operations for the Kawartha
Pine Ridge District School Board, wouldn't comment on individual
students, but spoke generally about how the board handles such cases.

"Where a student's behaviour negatively impacts on the school climate,
regardless of when or where that occurs, school consequences may
result," Hick said.

Incidents that happen off school property can still potentially be
subject to an investigation, Hick stressed.

"Even if something happened in the summer, we have that authority
under the Education Act," he said. "We have an obligation to the rest
of our students as well."

After Nick was initially suspended for 20 days, Joan hired local
lawyer Christopher Spear, who argues the school violated several
policies and procedures during its investigation, such as searching
cellphones and backpacks.

"Being able to search students and their cellphones is not stipulated
in the Education Act," Spear said. "The board has ignored the
procedure set out in the act throughout."

On March 2 at the Holiday Inn in Peterborough, Spear and Joan take
their case to the Child and Family Services review board to appeal the
expulsion decision.

The section that will likely be the most hotly contested is Section
310.1: The principal shall suspend the student "if engaging in the
activity will have an impact on the school climate."

Spear said the wording of the section is too subjective and
broad.

"Theoretically you could dream up any number of speculative
circumstances that could infringe on school climate and that power
could be abused," he said.

But what Spears says he finds most destructive is the board's
extension to punishing behaviour regardless if it happened on school
property or even during school hours.

"That's the section of the act that can be used or abused to include
activities that students engage in off school property and after
school time," Spear said. "And that's the danger of it I think."

Joan points out the Charter of Rights and Freedoms, which protects the
rights of all Canadians, should logically extend to students.

"In the charter it states that no one should be subject to illegal
search and seizure," Joan said. "It also says no one shall be subject
to illegal questioning without counsel."

Before the interrogation in the vice principal's office, Joan said,
parents should have been called immediately.

The Safe Schools Act, which is part of the provincial Education Act,
outlines for schools the protocol to handle suspensions and expulsions.

Spear said the board breached several provisions.

"Under the Safe Schools Act, the school is claiming the incident
corrupted the morals of the entire school community," Joan said. "This
happened at a Saturday night house party far away from the school.

"The Safe Schools Act has given schools so much power and I feel it's
an abuse of power.

"They are punishing them for being teenagers."

The Safe Schools Act, which passed in June 2007, amended sections of
the Education Act with new provisions related to student discipline,
said education ministry spokeswoman Patricia MacNeil. Prior to its
passing, the act underwent consultations by the Safe Schools action
team in 2006, MacNeil said.

"What they found was the previous act was being applied differently in
different places," she said. "So there was the need for clarification
of roles and responsibilities."

The amendments to the act, meant to provide a province-wide code on
conduct, also precipitated the list of infractions to grow longer, she
said, such as adding bullying.

The act also states an expulsion is not mandatory if the student does
not have the ability to control their behaviour, such as if they are
mentally ill, does not understand the consequences of their behaviour,
or does not create a risk to the safety of other students at school,
the act states.

"My son didn't meet any of the expulsion rules," Joan said. "He agreed
to go to counselling, he voluntarily agreed to have his bags searched,
he co-operated with the school and he quit smoking pot long before the
investigation started."

Before the investigation, Nick sought counselling through the
Peterborough Youth Services and followed up with a drug counsellor at
FOURCAST.

After only two sessions at Peterborough Youth Services, Joan said,
Nick's counsellor declared that he didn't require their services
because he is not addicted to drugs.

MacNeil said the act's amendments encouraged schools to consider the
student's personal circumstances, such as problems at home, past
history at school or how the suspension or expulsion would affect the
student's education.

"It says to schools, 'look at the bigger picture. Look at the
student's history,'" MacNeil said. "It's not just about punishing bad
behaviour, but also examining the circumstances surrounding that
behaviour." Joan said the school did not consider any of these factors
with Nick.

Spear argues those as mitigating factors why Nick should not be
expelled, she said.

Another of the other five students expelled that day, Mark and his
father Barry (whose names have also been changed), has also hired a
lawyer, Donald White, to appeal.

Their appeal date is March 6.

"I'm interested to hear the board's explanation," Barry said. "How can
they justify how they dealt with this whole situation?"

With regard to the investigation, Hick said, the school was acting
within its rights.

Legislators have concluded schools must have a certain degree of power
to maintain safety for all students, he said.

"The powers of search are very broad for school administrators and
that is upheld by the Supreme Court," Hick said. "There are different
standards for schools than the police have in a criminal
investigation.

"There has been a recognition by the courts that school administrators
have a very difficult job and that they have to keep schools safe."

Joan said she has told other parents at PCVS who expressed shock when
they learned about the sweeping powers schools have under the Safe
School's Act.

The other parents of the four other expelled students would not
comment to The Examiner. It is not known if any of them plan to file
appeals.

While Nick says he would like to see the whole mess just disappear,
Joan said she is prepared to fight what she calls a major flaw in the
Education Act.

"I think people will be really surprised to find out schools trump the
charter," she said, adding she plans to start writing letters,
beginning with MPP Jeff Leal, MP Dean Del Mastro, Premier Dalton
McGuinty, a Toronto legal aid clinic and advocacy group, Justice for
Children and Youth, as well as other local parents.

When he was first suspended from PCVS, Nick said, he was enrolled in a
board-run program at the Peterborough Public Library, five days a week
working on the "math side" of his woodshop course curriculum.

To get the practical side, the board could have him do a placement
with a carpenter, Hick said.

"We have to be creative and adaptable to the needs of the students,"
Hick said.

But Joan said nothing hands-on was offered. "Some classes he will fail
because he was not able to do the work in class," Joan said.

"Thankfully none of this will appear on his permanent record because
he is under 18."

Right now, Nick attends the Centre for Individual Studies (CIS) on
McDonnel Street two days a week working on his Grade 11 and 12 English
so he can graduate in June.

"This place is unbelievable," Joan said. "It's three portables and a
parking lot. It's beyond belief."

Nick, wearing big blue headphones around his neck, slouched in a chair
and looked down at the table wistfully.

"It's like correspondence school," he said.

"I don't see my friends as often."

He said he can't help feeling bitter toward his education.

"I feel my year was ruined because I was kicked out of school," Nick
said.

Joan said she has watched her son grow increasingly jaded. He feels
his future is up in the air, she said.

"He used to talk about college or university," she said. "Now he just
wants to sit on the couch and watch TV.

"He's so disillusioned."