A Governance Odyssey SCC Rulings That Affected the Education

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A Governance Odyssey SCC Rulings That Affected the Education Powered By Docstoc
					 SCC Rulings That Affected the
      Education World

Alberta School Board Association
Spring General Meeting – June 8, 2010
A Governance Odyssey
                                       Debra Tumbach
                          Senior Legal Counsel, ASBA
                                               1
A Review of Supreme Court of
  Canada Decisions and their
   Impact on School Board
         Operations



                           2
R. v Jones [1986] 2 S.C.R. 284
   Early SCC decision on the freedom of religion
    and the right to security of a person
      Issue– Whether compulsory education law in
       Alberta violated these constitutional rights.
      Appeal by accused from convictions on three
       counts of truancies on the part of his children,
       contrary to section 180(1) of the Alberta School
       Act.


                                                          3
 Accused  refused to seek provincial approval for
 the education of his children, along with some
 20 others in a program he operated at his
 church, based the belief that his authority over
 his children and his duty to attend to their
 education came from God, and that it would be
 sinful to request the state to permit him to do
 God’s will.



                                                     4
 The Supreme Court upheld the convictions. The
 School Act did not infringe the accused fundamental
 right to freedom of religion.




                                                5
   Implications
      Provinces  have a compelling interest in student
       education and are entitled to place “reasonable”
       restrictions on an individual’s fundamental
       freedoms as they affect education.
      Court should not usurp or overrule the role of
       educational authorities or the architects of
       educational policy.


                                                          6
 School  officials need administrative flexibility to
  implement policy.
 Courts have shown that they will defer to the
  expertise of school officials who work within and
  are knowledgeable of a statutory educational
  scheme.




                                                    7
   Summary
     Provinces   have the right to impose a minimum of
      standards on persons who wish to educate their
      children outside the publicly funded school
      system.
     In Jones, the imposition of minimum standards did
      not violate Mr. Jones freedom of religion.
     The compulsory attendance law was upheld by the
      court.

                                                    8
Eaton v Brandt County Board of
Education [1997] 1 SCR 244
   The parents of a 12 year old girl with cerebral
    palsy who was incapable of communicating
    through speech, sign language or other
    alternative communication systems, brought an
    action against the Board alleging that Emily’s
    equality rights under section 15 of the Charter
    had been breached.


                                                9
   Early important decision of the SCC as to the
    meaning of student’s disability in light of
    equality rights under the Charter.
      The  court recognizes disability means vastly
       different things depending upon the individual
       and context.
      Produces the “difference dilemma” whereby
       segregation can be both protective of equality and
       violative of equality, depending upon the person
       and the state of disability.
                                                      10
   The Court’s recognition that as a child’s
    equality of rights are exercised by their
    parents, that the decision making body (i.e.
    Board) must ensure that its determination of
    appropriate accommodation for an
    exceptional child be made from a subjective,
    child centre perspective.


                                               11
   Equality must be meaningful from the child’s
    point of view as opposed to the adult’s in his
    or her life.
   This does not negate the importance of
    consultation with parents.
   Section 47 of the School Act requires
    consultation with a parent of a student and,
    where appropriate, with the student before a
    board places the student in a special education
    program.                                     12
   SCC upheld the Board’s placement
      No  finding of discrimination on the basis of
       disability.
      Appropriate accommodation for an exceptional
       child was determined from a child centered
       approach and not from the perspective of adults
       in her life.



                                                    13
   Implications
      Understanding   of appropriate needs for
       exceptional children must be determined with a
       view to supporting the best interests of that child.
       Board personnel must consult with the parents of
       the student and the student where appropriate in
       making such decisions.
      The courts will defer to the expertise of school
       officials which demonstrates reasonable support
       for recommendations.
                                                        14
 SCC  recognition that a student’s rights and
 interests are separate and distinct from their
 parents, and that the parent’s views will not be
 determinative of the course of action to be
 undertaken by the Board.




                                                    15
R. v M (MR) [1998] 3 S.C.R. 393
   SCC rules on student searches upholding
    decision of school authority which had,
    through the vice-principal, conducted a search
    on a student at school dance in the presence
    of a police officer.
      The  student argued that the right to be free from
       unreasonable search and seizure under section 8
       of the Charter had been violated.


                                                      16
 SCC  upholds expectation of privacy with respect
  to one’s person as reasonable and notes that it is
  not rendered unreasonable merely by the student’s
  presence at the school.
 The student’s privacy rights are however
  diminished in some circumstances. Expectation
  of privacy is lower for a student attending school
  than it would be in other circumstances, based
  upon the school’s responsibility for maintaining
  order and discipline.
                                                17
 The  court applies different standard to searches
  by school administrators.
 A search by a school official with appropriate
  authority may be undertaken if there are
  reasonable grounds to believe that a school rule
  has been, or is being violated and that evidence of
  the violation will be found on the location or on
  the person of the student searched.



                                                 18
 Searches undertaken for health and safety
  concerns may require different considerations.
 All circumstances surrounding a search must be
  considered in determining if a search is reasonable.




                                                  19
   Court guidance regarding searches
     A   warrant is not essential in order to conduct a
       search of a student by a school authority.
      A school authority must have reasonable grounds
       to believe that there has been a breach of school
       regulations or discipline and that a search of the
       student would reveal evidence of breach.
      A school authority is in the best position to
       determine if reasonable grounds exist for the
       search.
                                                      20
 Reasonable   grounds may consist of:
    Information received from one student considered to be
     credible;
    Information received from more than one student;
    A teacher or principal’s own observations; or
    Any combination of these pieces of information which the
     relevant authority considers to be credible.
 The compelling nature of the information and the
 credibility of these or other sources must be assessed
 by the school official and the context of the
 circumstances existing at the particular school.
                                                          21
   School searches are different from police
    searches.
      Police searches must usually be based upon
       reasonable and probable grounds, and usually
       require a warrant.




                                                      22
   Implications
      SCC   empowers school administrators to
       undertake searches on reasonable grounds,
       recognizing the practicalities and the need for the
       same in order to maintain student safety, order
       and discipline.
      School administrators have a privilege and inside
       perspective to decide whether to conduct a search
       of a student or her property.

                                                       23
 Boards  must ensure that principals are adequately
 trained to undertake searches which do not breach
 a student’s expectation of privacy which continues
 to exist at a lower threshold.




                                                24
R. v AM [2008] S.C.J. No. 19
   SCC rules on ability for police to conduct
    random searches in schools with the assistance
    of drug sniffer dogs.
      The search was a violation of the student’s right to
      be free from unreasonable search and seizure.




                                                       25
 The   court had to decide:
   Was drug evidence obtained as a breach of section 8 of
    the Charter: “Everyone shall be free from an
    unreasonable search and seizure”?
   Was the dog sniff of a backpack a search?
   If so, was there legal authority for conducting a search
    by sniffer dogs in the school, and is that law
    reasonable?
   Was the search itself conducted reasonably?
   If there was a breach of section 8, should the evidence
    be admitted in court proceedings?
                                                        26
 The  case focuses on random searches by police in
  schools, finding such searches unconstitutional.
 The ruling does not impact the ability for
  principals to conduct searches based upon
  reasonable suspicion.




                                                27
 Justice   Label, speaking for the majority, stated:
     “Students are entitled to privacy even in a school
     environment … Entering a school yard does not
     amount to crossing the border of a foreign state.
     Students ought to be able to attend school without
     undue interference from the state, but subject, always,
     to normal school discipline.”




                                                         28
 All members of the court agreed that a drug dog
  sniff is a search, but disagreed on the standard to
  be applied to the undertaking of such searches, as
  follows:
    Reasonable and probable grounds (per Label J, Fish J,
     Abella J and Charron J);
    Reasonable suspicion per McLaughlin CJ, Binnie J,
     Deschamps J, and Rothstein J; and
    Generalized suspicion per Bastarache J.


                                                         29
   Implications for school boards
      Police may not use drug detection dogs for
       random, speculative searches in schools, whether
       invited by school authorities or not.
      Random or broadly targeted sniffer dog searches
       conducted by the police or school, based on
       credible information relating to explosives, guns
       or other urgent public safety related contraband,
       may be permitted even if suspicion is not targeted
       on an individual.
                                                      30
 The  ruling does not impact the ability for a
  principal to undertake searches of students or
  their belongings in schools, as set out in the R. v
  M(MR) case, based upon reasonable suspicion.
 A door was left open for schools to ask for police
  assistance for searches using drug detection dogs
  if they have a reasonable suspicion that a search
  would disclose evidence of drug possession by a
  targeted individual or group. Suspicion must be
  current.
                                                  31
A   reasonable suspicion is more than an educated
  guess, unless in reasonable and probable grounds
  to believe.
 Suspicion must be backed up by objectively,
  verifiable indicators.
 Administrators using drug detection dogs or
  private contractors for the purpose of enforcing
  school rules may also be subject to legal challenge.


                                                  32
 Boards  contemplating the use of private
  contractors must take all possible steps to reduce
  the expectation of privacy and ensure that any
  such search was based upon a current reasonable
  suspicion that drugs will be found on the premises
  on the day that the search occurs.
 Legal advice and assistance in devising appropriate
  policy should be sought.



                                                 33
 The  search must not be random, but rather
  targeted based upon credible information.
 Such searches are undertaken with great risk in
  light of the SCC ruling.




                                                    34
Ross v New Brunswick School District
No. 15 [1996] 1 S.C.R. 825
   SCC considers freedom of speech or
    expression and freedom of conscience and
    religion rights in face of complaint by a Jewish
    parent of a student who attended a school at
    which the teacher, Ross, made anti-Semitic
    comments in books and on television.




                                                 35
 SCC   considered whether the New Brunswick
  Human Rights Commission, which ordered the
  school board to take various personnel actions
  against Ross violated Ross’ freedom of speech,
  expression, conscience and religion.
 SCC upholds finding of discrimination.
 Evidence disclosed a poisoned educational
  environment in which Jewish children were likely
  to feel isolated and suffer a loss of self-esteem on
  the basis of their Judaism.
                                                   36
 Itwas reasonable for the board to infer that this
  was caused by Ross’ off-duty conduct.
 Human Rights Commission was correct in
  concluding that the school board had a duty to
  maintain a positive environment for all students
  and that by failing to impose sanctions against
  Ross, the school board breached that duty.




                                                  37
   Implications
     A   passive approach to complaints of
       discriminatory behaviour may signal a silent
       condonation and support of the complained of
       views.
      SCC recognition of the importance of a teacher as
       a role model and recognition of the trust and
       influence that a teacher can exercise over his
       students.

                                                     38
 Teachers   must be seen to be impartial and
  tolerant.
 Boards must ensure for an equal and
  discrimination free environment.




                                                39
Chamberlain v Surrey School District
No. 36 [2002] 4 S.C.R. 710
   SCC overturned school board motion to ban
    three books depicting same sex parented
    families for the following reasons:
        The school board motion violated the principles of
         secularism and tolerance as set out in the BC School
         Act;
        The school board ran afoul of its own regulation made
         pursuant to Ministerial Order as to how decisions
         about supplementary resources should be made; and


                                                          40
 The school board applied the wrong criteria to the
  evaluation of the supplementary resources by either
  ignoring or mistaking the requirements of the School
  Act and the learning outcomes of the curriculum.




                                                       41
 The  School Act’s emphasis on secularism did not allow
  the school board to act in a way that would
  undermine the values of accommodation, tolerance
  and respect for diversity.
 “A requirement of secularism applies that although
  the board is indeed free to address the religious
  concerns of parents, it must be sure to do so in a
  manner that gives equal recognition and respect to
  other members of the community. Religious views
  that deny equal recognition and respect to the
  members of the minority group cannot be used to
  exclude the concerns of the minority group.”        42
   Implications
      The  courts will not hesitate to intervene and
       overturn decisions of school boards which do not
       reflect the diverse and multicultural aspects of our
       Canadian society.
      The decision affirms the right of children in same
       sex parented families to see themselves and their
       families reflected in the school curriculum.
      A core component of this case is that tolerance in
       schools is “always age appropriate”.
                                                        43
Canadian Foundation for Children, Youth and
the Law v Attorney General of Canada [2004]
1 S.C.R. 76
   Challenge to the constitutionality of section 43
    of the Criminal Code which reads as follows:
       “Every schoolteacher, parent or person standing
       in the place of a parent is justified in using force
       by way of correction toward a pupil or a child, as
       the case may be, who is under his care, if the force
       does not exceed what is reasonable under the
       circumstances.”


                                                       44
   SCC does not find that the application of
    section 43 violates Charter rights but places
    restrictions on potential use of section 43
    which is really provides a defense to the
    application of force for a corrective means.
    (Note a partial dissenting opinion filed by
    Justice Binnie and dissents by Justice Arbour
    and Justice Deschamps)

     .                                          45
 Majority   make the following findings:
    The person applying force must have intended it to be
     for educative or corrective purposes;
    Section 43 will not exculpate outbursts of violence
     against a child motivated by anger or animated by
     frustration;
    The child must be capable of benefiting from
     correction;
    Force against children under two years of age cannot
     be corrective, since on the evidence they are incapable
     of understanding why they are hit;
                                                        46
    A child may also be incapable of learning from the
     application of force because of disability or some other
     contextual factor.
 Application of section 43 is limited to the mildest
  forms of assault.
 People must know that their conduct raises an
  apprehension of bodily harm and they cannot rely
  upon section 43.



                                                          47
 Corporal   punishment of teenagers is harmful
  because it can induce aggressive or anti-social
  behaviour.
 Corporal punishment using objects, such as rulers
  or belts, is physically and emotionally harmful.
 Corporal punishment which involves slaps or
  blows to the head are harmful.
 The above noted types of punishment are not
  reasonable.

                                                48
   Implications
      The  above noted list of findings sets out the
       implications for school boards. The use of force
       is severely limited.
      Section 43 of the Criminal Code, while withstanding
       constitutional challenge, limits the application of
       the defense for teachers.



                                                      49
 Teachers   should not use corporal punishment but
  may use minimal force to remove a child from
  class or a danger, or secure compliance with
  instructions.
 Teachers/caregivers must be cautious that the use
  of force never arises out of frustration, loss of
  temper or abusive personality.




                                                50
Jurban v North Vancouver School
District No. 44 (2)
   The BC Court of Appeal reinstated the finding
    of the Human Rights Tribunal that a person
    can bring a complaint under the Human Rights
    Code for discrimination on a perceived ground
    (in this case sexual orientation), and that a
    school board can be liable for discriminatory
    actions of its students.


                                              51
A   student experienced significant harassment over
  a number of years by other students based on the
  perception that he was gay.
 The student filed a human rights complaint against
  the board for failing to provide him with an
  educational environment free from discrimination.
 The Human Rights Tribunal found discrimination;
  the Superior Court overturned the ruling, finding
  that perceived sexual orientation is not a protected
  ground under the Human Rights Code.
                                                  52
 BC  Court of Appeal reinstated the Human Rights
  Tribunal decision.
 Leave to appeal the matter to the Supreme Court
  of Canada was refused.




                                              53
   Court findings
      Irrelevant as to whether the harassers actually
       believed the student was gay, the effect of their
       conduct was to deny his dignity and full
       participation in school life.
      Harassment negatively affected the student’s
       participation in school life.



                                                           54
 The   school board had a duty to provide students
  with an environment free from discrimination,
  but made it clear that school boards are not
  strictly liable for the conduct of its students.
 However, the school board’s response will be
  assessed when determining whether the school
  board took appropriate measures to protect the
  student from discrimination.



                                                 55
 The   VP testified that the school lacked resources
  to deal with bullying incidents that occurred
  outside the classroom and that they had not
  offered staff harassment training.
 While the board had taken some measures and
  instituted a code of conduct, and taken some
  disciplinary measures against the harassing
  students, these were found to be insufficient in
  light of the then current standards.

                                                   56
   Implications
      School   boards cannot rely upon an unavailability
       of resources to justify discrimination experienced
       by students.
      School boards must adequately resource and train
       staff to address complaints or incidents of
       bullying.



                                                      57
 School   boards should:
    Have a clearly written harassment policy stressing the
     importance of a discrimination free school
     environment.
    The policy should:
        set out the objectives of the school board’s harassment
         policy;
        express the seriousness of harassment and bullying, and the
         consequences for the same;
        provide clear procedural guidelines for the processing of
         complaints and investigations;


                                                                 58
 indicate that a breach may result in disciplinary action,
  including dismissal or expulsion, as applicable;
 be applied consistently to all students and staff and
  consistently enforced;
 train teachers, staff and students on racial, homophobic and
  sexual harassment.




                                                          59
Multani v Commission scolaire Marguerite-
Bourgeoys [2006] 1 S.C.R. 256
   SCC finds the school board violated the right
    to freedom of religion of a Sikh student when
    it prohibited him from wearing his kirpan to
    school.
      While the court concluded that the objective in
      ensuring a reasonable safety in schools was a
      pressing and substantial one, it also needed to
      balance the student’s right to freedom of religion.


                                                      60
 Mr.  Multani sued the school board arguing that his
  son had a right to wear his kirpan to school if it
  were sealed and sewn up inside his clothing and
  that this would be a reasonable accommodation to
  his son’s freedom of religion.
 Restrictions placed upon the wearing of the kirpan
  to school were overturned by the Court of Appeal
  which agreed with the school board’s ban on
  Multani from wearing his kirpan to school.

                                                 61
 The SCC overturned the Court of Appeal ruling
  and reinstated the lower court decision.
 Court concluded by stating the following:
    Religious tolerance is a very important value of
     Canadian society. If some students consider it unfair
     that [Multani] may wear his kirpan while they are not
     allowed to have knives in their possession, it is
     incumbent on the schools to discharge their obligation
     to instill in their students this value that is … the very
     foundation of our democracy.


                                                           62
…
A total prohibition against wearing a kirpan to school
undermines the value of this religious symbol and
sends students the message that some religious
practices do not merit the same protection as others.
…




                                                   63
   Implications
      Thiscase, from the highest court in the land,
      demonstrates the importance our society attaches
      to protecting the freedom of religion of individual
      students at schools and protecting the rights of
      minorities, while at the same time respecting the
      school’s duty to ensure a safe learning and
      teaching environment.


                                                      64
Conclusion
   This sampling of Supreme Court of Canada
    decisions indicates that the SCC will not
    hesitate to overturn decisions of school boards
    in certain circumstances. School board actions
    will be scrutinized to ensure that their actions
    are compliant with the law; generally and
    importantly with the human rights and
    constitutionally guaranteed rights available to
    students and staff.
                                                65
   The Courts have also demonstrated that they
    will provide great deference to decisions made
    by appropriately qualified individuals and
    boards who exercise their statutory
    responsibilities to educate students.




                                                66

				
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