Pubdate: Thu, 26 Feb 2009 Source: Peterborough Examiner, The (CN ON) Copyright: 2009 Osprey Media Group Inc. Contact: http://drugsense.org/url/4VLGnvUl Website: http://www.thepeterboroughexaminer.com/ Details: http://www.mapinc.org/media/2616 Author: Andrea Houston '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. - --- MAP posted-by: Larry Seguin