SCC Rulings That Affected the Education World

1. 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

2. A Review of Supreme Court of Canada Decisions and their Impact on School Board Operations

3. 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.

4. 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.

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

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. School searches are different from police searches. • Police searches must usually be based upon reasonable and probable grounds, and usually require a warrant.

23. 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.

24. 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.

25. 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.

26. 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?

27. 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.

28. 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.”

29. 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.

30. 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.

31. 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.

32. 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.

33. 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.

34. 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.

35. 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.

36. 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.

37. It was 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.

38. 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.

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

40. 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

41. 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.

42. 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.”

43. 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”.

44. 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.”

45. 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) .

46. 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;

47. 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.

48. 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.

49. 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.

50. 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.