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 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." - --- MAP posted-by: Larry Seguin