11

THE CHARTER OF THE CHARTER OF RIGHTS RIGHTS AND AND FREEDOMS:FREEDOMS:

What Teachers & School What Teachers & School Administrators Should Administrators Should

KnowKnow

Jerome G. Delaney, Ph.D. Faculty of Education

Memorial University of Newfoundland

22

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Background:Background:

Charter came into effect in 1982.Charter came into effect in 1982.

By historical timelines, still in its By historical timelines, still in its infancy.infancy.

Slowly but steadily impacting the Slowly but steadily impacting the K-12 school system.K-12 school system.

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Purpose of This Purpose of This Presentation:Presentation:

To examine those sections To examine those sections relevant to the everyday work of relevant to the everyday work of teachers & school administrators teachers & school administrators in the K-12 school system;in the K-12 school system;

Hopefully, to offer some sage Hopefully, to offer some sage advice as to the interpretation of advice as to the interpretation of those relevant sections.those relevant sections.

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Role of the Judiciary:Role of the Judiciary:

Prior to 1982 (pre-Charter) the courts Prior to 1982 (pre-Charter) the courts were mainly preoccupied with the were mainly preoccupied with the interpretation of provincial/federal laws interpretation of provincial/federal laws that impacted on educationthat impacted on education

Judges usually left the running of schools Judges usually left the running of schools to teachers & administrators (deference)to teachers & administrators (deference)

Post-Charter (after 1982) judges were Post-Charter (after 1982) judges were now tasked with judging the laws of the now tasked with judging the laws of the land (Black-Branch, 1997)land (Black-Branch, 1997)

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Applicability of the Applicability of the Charter:Charter:

““. . . the Charter’s net falls over the . . . the Charter’s net falls over the actions, policies and decisions of actions, policies and decisions of departments of education, school departments of education, school boards, and school administrators. . boards, and school administrators. . . Independent or private schools. . . . Independent or private schools. . . are [also] bound by the Charter” are [also] bound by the Charter” (Watkinson, 1999, p. 27) (Watkinson, 1999, p. 27)

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The Concept of The Concept of ReasonablenessReasonableness

At first blush, the Charter may evoke At first blush, the Charter may evoke concern & paranoia in teachers & school concern & paranoia in teachers & school administrators;administrators;

Teachers & school administrators have a Teachers & school administrators have a statutory duty to “maintain order and statutory duty to “maintain order and discipline in the discipline in the school . . . ” school . . . ”

(Section 24f, Schools Act of NL, 1997) (Section 24f, Schools Act of NL, 1997)

The concept of reasonableness The concept of reasonableness permeates the Charter – nothing is permeates the Charter – nothing is absolute.absolute.

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Specific Relevant Specific Relevant Sections of the Charter:Sections of the Charter:

Section 1:Section 1: Guarantee of Rights & Guarantee of Rights & FreedomsFreedoms

Section 2:Section 2: Fundamental Fundamental FreedomsFreedoms

SectionsSections

7 – 12:7 – 12:Legal Rights Legal Rights Section 15:Section 15: Equality Rights Equality Rights

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Section 1: Section 1: Guarantee of Guarantee of Rights Rights & Freedoms & Freedoms

““The The Canadian Charter of Rights Canadian Charter of Rights & Freedoms & Freedoms guarantees the rights guarantees the rights and freedoms set out in it subject and freedoms set out in it subject only to such reasonable limits only to such reasonable limits prescribed by law as can be prescribed by law as can be demonstrably justified in a free demonstrably justified in a free and democratic society”. and democratic society”.

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According to Watkinson (1999):According to Watkinson (1999): every Charter analysis involves a two-every Charter analysis involves a two-

stage process;stage process; first, the courts must decide whether a first, the courts must decide whether a

challenged law or governmental action challenged law or governmental action limits a guaranteed right;limits a guaranteed right;

the onus of proving that a law the onus of proving that a law breaches the Charter is on the breaches the Charter is on the individual challenging the law. individual challenging the law.

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if the court agrees that the challenged if the court agrees that the challenged law/governmental action limits a law/governmental action limits a guaranteed right under the Charter, then guaranteed right under the Charter, then the court has to determine whether the the court has to determine whether the limit upon the right can be justified under limit upon the right can be justified under Section 1;Section 1;

the onus of proof shifts to the government the onus of proof shifts to the government or its agent which must show that the limit or its agent which must show that the limit is a reasonable one and one that can be is a reasonable one and one that can be justified in a free and democratic society.justified in a free and democratic society.

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SECTION 2: SECTION 2: Fundamental Fundamental FreedomsFreedoms

Everyone has the following fundamental Everyone has the following fundamental freedoms:freedoms:

a) freedom of conscience & religion;a) freedom of conscience & religion;b) freedom of thought, belief, opinion b) freedom of thought, belief, opinion

& & expression, including freedom of expression, including freedom of the the press & other media of press & other media of

communication; communication;c) freedom of peaceful assembly; and c) freedom of peaceful assembly; and d) freedom of association. d) freedom of association.

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Implications of Implications of Section 2 for Schools: Section 2 for Schools:

Example: Example: ““Student A is spreading malicious rumors Student A is spreading malicious rumors

about another student B”. about another student B”. Should student A be protected by the Should student A be protected by the

Charter (i.e. freedom of opinion and Charter (i.e. freedom of opinion and expression)?expression)?Absolutely not! Because there has to be a Absolutely not! Because there has to be a reasonable limit placed on students in the reasonable limit placed on students in the school setting which forbids these kinds of school setting which forbids these kinds of incidents from happening.incidents from happening.

The same reasoning applies to the other The same reasoning applies to the other freedoms in the school setting freedoms in the school setting (i.e. Freedom of association etc. ). (i.e. Freedom of association etc. ).

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Sections 7 – 12: Sections 7 – 12: Legal Legal Rights Rights

In pre-Charter days teachers & school In pre-Charter days teachers & school administrators enjoyed considerable administrators enjoyed considerable latitude & autonomy re the enforcement latitude & autonomy re the enforcement of school rules & regulations. of school rules & regulations.

Post-Charter days, disciplinary actions Post-Charter days, disciplinary actions taken by teachers & school taken by teachers & school administrators are subjected to a much administrators are subjected to a much greater scrutiny.greater scrutiny.

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Section 7:Section 7:

““Everyone has the right to Everyone has the right to life, liberty and security of the life, liberty and security of the person and the right not to be person and the right not to be deprived thereof except in deprived thereof except in accordance with the principles of accordance with the principles of

fundamental justice”.fundamental justice”.

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Natural [fundamental] justice:Natural [fundamental] justice:

“ “. . . [giving] persons specifically . . . [giving] persons specifically affected by the decision a reasonable affected by the decision a reasonable opportunity of presenting their case, opportunity of presenting their case, [being listened] to fairly and [having a [being listened] to fairly and [having a decision reached]decision reached]

untainted by bias” (Canadian Law untainted by bias” (Canadian Law Dictionary, 1995, p. 152) Dictionary, 1995, p. 152)

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Levin & Young (2002):Levin & Young (2002):

School discipline practices frequentlySchool discipline practices frequently

appear to violate principles of natural appear to violate principles of natural justice. For example, teachers often justice. For example, teachers often accuse students of misdemeanors and accuse students of misdemeanors and impose punishments on them without impose punishments on them without explaining precisely what the transgression explaining precisely what the transgression is and without providing an opportunity for is and without providing an opportunity for the students’ position to be heard. (p. 117) the students’ position to be heard. (p. 117)

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In the everyday life of schools, it In the everyday life of schools, it is necessary to “temper” the is necessary to “temper” the practicalities of enforcing student practicalities of enforcing student discipline policies with the overall discipline policies with the overall intent of the Charter. intent of the Charter.

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Some Practical Advice:Some Practical Advice:

1.1. At all times and especially so in At all times and especially so in disciplinary matters students disciplinary matters students should be treated with dignity & should be treated with dignity & respect.respect.

2.2. Students, depending on the nature Students, depending on the nature & severity of the infraction, should & severity of the infraction, should be afforded a reasonable degree of be afforded a reasonable degree of privacy & confidentiality in the privacy & confidentiality in the resulting discussions. resulting discussions.

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3.3. Students should be advised of the Students should be advised of the “problem” that is being confronted.“problem” that is being confronted.

4.4. Students should be given the Students should be given the

opportunity to present “their side of opportunity to present “their side of the story”.the story”.

5.5. Students should be informed of any Students should be informed of any decisions reached by the decisions reached by the teacher/administrator and the teacher/administrator and the rationale behind the situation. rationale behind the situation.

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6.6. Parents should be advised of the Parents should be advised of the situation and of any decisions situation and of any decisions

reached re detentions, reached re detentions, suspensions, suspensions, etc. etc. Of course, Of course, depending on the depending on the severity or severity or gravity of the situation, gravity of the situation, the teacher the teacher / administrator will have / administrator will have to make ato make a decision as to whether or not decision as to whether or not parents parents are informed. are informed.

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7.7. Parents should be given the Parents should be given the opportunity to present an opportunity to present an

appeal. appeal. Schools should have an Schools should have an appeal appeal procedure in place. procedure in place.

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8.8. One cannot overemphasize the One cannot overemphasize the importance of students being accorded importance of students being accorded due process/procedural fairness (i.e. due process/procedural fairness (i.e. natural/fundamental justice).natural/fundamental justice).

9.9. It is not only important that justice It is not only important that justice bebe

done but that it be seen to be done! done but that it be seen to be done!

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Section 8:Section 8:

““Everyone has the right to be Everyone has the right to be secure against unreasonable secure against unreasonable search or seizure”. search or seizure”.

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This section is of particular This section is of particular significance to teachers & school significance to teachers & school administrators because there are administrators because there are situations which will necessitate situations which will necessitate the searching of students’ the searching of students’ belongings & lockers. belongings & lockers.

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According to Watkinson (1999), the According to Watkinson (1999), the central issue around this section of central issue around this section of the Charter is the balance between the Charter is the balance between the constitutional right to be the constitutional right to be secure from unreasonable search & secure from unreasonable search & seizure and the legal obligation for seizure and the legal obligation for school officials to provide safe & school officials to provide safe & secure educational environments. secure educational environments.

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Adding to the complexity of this issue Adding to the complexity of this issue is whether or notis whether or not

. . . school officials when conducting a . . . school officials when conducting a search of a student, that is, whether they search of a student, that is, whether they are acting are acting in loco parentisin loco parentis (in the place of (in the place of the parent) or as agents of the state; and the parent) or as agents of the state; and the legality of strip searches, locker the legality of strip searches, locker searches, and the search of personal searches, and the search of personal property. (Watkinson, 1999, p. 151)property. (Watkinson, 1999, p. 151)

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The Supreme Court of Canada has The Supreme Court of Canada has ruled that the standard to be ruled that the standard to be applied to searches by school applied to searches by school authorities depends on whether authorities depends on whether or not the school authorities were or not the school authorities were acting as agents of the police.acting as agents of the police.

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Brown and Zuker (2002):Brown and Zuker (2002):

If the school authorities are If the school authorities are acting acting as agents of the police, they as agents of the police, they must must meet meet the same the same standards as the police in standards as the police in order to order to engage in a search. However, engage in a search. However, if if they are not agents of the police, a they are not agents of the police, a different standard is applied. (p. 219)different standard is applied. (p. 219)

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The following advice re searching The following advice re searching students is offered as a result of students is offered as a result of the R. v. M. (1998) appeal to the the R. v. M. (1998) appeal to the Supreme Court of Canada:Supreme Court of Canada:

1. A warrant is not essential 1. A warrant is not essential in in order to conduct a order to conduct a search of a search of a student by a student by a school official. school official.

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2. The school authority must 2. The school authority must have have reasonable grounds reasonable grounds to believe to believe

that there has been a breach of that there has been a breach of

school regulations or discipline school regulations or discipline

& that a search of a student & that a search of a student

would reveal evidence of that would reveal evidence of that

breach. breach.

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3. School authorities will be 3. School authorities will be in the in the best position to best position to assess assess information information given to them & given to them & relate it relate it to the situation in their to the situation in their schools. schools.

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4.4. The following may constitute The following may constitute reasonable grounds in this reasonable grounds in this contextcontext::

information received from one student information received from one student considered to be credible; considered to be credible;

information received from more than information received from more than one student, a teacher’s or principal’s one student, a teacher’s or principal’s own observations, or any combination own observations, or any combination of these pieces of information which of these pieces of information which the relevant authority considers to be the relevant authority considers to be credible.credible.

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The Supreme Court of Canada The Supreme Court of Canada further stated that the following further stated that the following factors should be considered factors should be considered when determining whether a when determining whether a search by a teacher or principal search by a teacher or principal was reasonable:was reasonable:

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1.1. The first step is to determine The first step is to determine whether it can be inferred from whether it can be inferred from the relevant the relevant Education [Schools] Education [Schools] Act that teachers and principals Act that teachers and principals are authorized to conduct are authorized to conduct searches of their students in searches of their students in appropriate circumstances. In the appropriate circumstances. In the school environment such a school environment such a statutory authorization would be statutory authorization would be reasonable. reasonable.

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2.2. The search itself must be The search itself must be carried carried out in a reasonable out in a reasonable manner. It manner. It should be conducted should be conducted in a sensitive in a sensitive manner and be manner and be minimally intrusive. minimally intrusive.

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3. In order to determine whether 3. In order to determine whether a search was reasonable, all a search was reasonable, all the surrounding circumstances the surrounding circumstances will have to be consideredwill have to be considered. .

((www.canlii.org/ca/cas/scc/1998/19www.canlii.org/ca/cas/scc/1998/1998scc84.html.p98scc84.html.p. 4). 4)

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Section 9:Section 9:

““Everyone has the right not to be Everyone has the right not to be arbitrarily detained or imprisoned”.arbitrarily detained or imprisoned”.

Generally speaking, this section Generally speaking, this section does not apply to students in does not apply to students in school situations; however, some school situations; however, some advice re detentions is offered. . . advice re detentions is offered. . .

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Practical Advice Re Practical Advice Re Detentions:Detentions:

Give students a minimum of 1 day’s Give students a minimum of 1 day’s notice.notice.

Re lunchtime detentions, students Re lunchtime detentions, students should be given a reasonable period of should be given a reasonable period of time to eat their lunch.time to eat their lunch.

The amount of time in detention should The amount of time in detention should

be reasonable.be reasonable.

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In the case of students being assigned In the case of students being assigned detentions in junior high or lower detentions in junior high or lower grades, it is suggested that parents be grades, it is suggested that parents be notified of the time and the reason for notified of the time and the reason for the detention. the detention.

Students serving detentions should be Students serving detentions should be in the presence of a teacher / in the presence of a teacher / administrator at all times. administrator at all times.

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Section 10:Section 10:

“ “Everyone has the right on arrest or Everyone has the right on arrest or detentiondetentiona) to be informed promptly of the a) to be informed promptly of the reasons thereof;reasons thereof;b) to retain & instruct counsel without b) to retain & instruct counsel without delay & to be informed of that right, & delay & to be informed of that right, & c) to have the validity of the detention c) to have the validity of the detention determined by way of determined by way of habeas corpus habeas corpus & & toto be released if the detention is not be released if the detention is not lawful”. lawful”.

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This section does apply to students when This section does apply to students when they are arrested on school property. they are arrested on school property. Police are expected to respect these Police are expected to respect these rights when an arrest is made.rights when an arrest is made.

A couple of points to keep in mind:A couple of points to keep in mind:

as mentioned earlier, students as mentioned earlier, students should be informed of the reasons should be informed of the reasons for their being assigned a for their being assigned a detention(s);detention(s);

communication between school communication between school and parent is imperative. and parent is imperative.

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Section 11:Section 11:

This section lists from (a) to (i) This section lists from (a) to (i) the various rights a person has the various rights a person has after being arrested. Although after being arrested. Although not directly relevant to the not directly relevant to the everyday work of teachers & everyday work of teachers & school administrators, there are a school administrators, there are a couple of points worthy of note: couple of points worthy of note:

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Unreasonable delay is a theme Unreasonable delay is a theme throughout these rights. Hence, throughout these rights. Hence, the following advice is offered to the following advice is offered to school officials when dealing school officials when dealing with disciplinary matters:with disciplinary matters:

1. disciplinary incidents 1. disciplinary incidents should be handled as should be handled as expeditiously as possible;expeditiously as possible;

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2. a significant delay in dealing with 2. a significant delay in dealing with the specific incident may result in a the specific incident may result in a perception that the incident was not perception that the incident was not being taken seriously; being taken seriously;

3. the “referring teacher’ may feel a 3. the “referring teacher’ may feel a sense of not being supported by the sense of not being supported by the school administration; school administration;

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4. 4. the particular student may the particular student may feel that feel that ““s/he has dodged the bullet this s/he has dodged the bullet this time” & walk away from the time” & walk away from the incident thinking that the incident incident thinking that the incident was “no big deal” (i.e. loss of was “no big deal” (i.e. loss of respect for the teacher; loss of respect for the teacher; loss of credibility for the teacher). credibility for the teacher).

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Section 12:Section 12:

““Everyone has the right not to be Everyone has the right not to be subjected to any cruel & unusual subjected to any cruel & unusual treatment or punishment”. treatment or punishment”.

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Points to Ponder:Points to Ponder:

We as educators like to think that We as educators like to think that “cruel and unusual treatment or “cruel and unusual treatment or punishment” does not happen in punishment” does not happen in our schools. our schools.

Unfortunately, students are Unfortunately, students are

indeed subjected to ridicule, indeed subjected to ridicule, degradation & sarcasm – more so degradation & sarcasm – more so than we think! than we think!

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Students, no matter what age, are Students, no matter what age, are highly vulnerable & the impact we highly vulnerable & the impact we have on them as educators is indeed have on them as educators is indeed mind-boggling. mind-boggling.

Regardless of some very negative Regardless of some very negative student behaviors, the onus is on us as student behaviors, the onus is on us as professionals to treat students with professionals to treat students with respect & dignity; granted this is not respect & dignity; granted this is not always easy to do!always easy to do!

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Corporal Punishment:Corporal Punishment:

Prohibited in most provinces in Canada.Prohibited in most provinces in Canada.

Section 43 of the Criminal Code of Section 43 of the Criminal Code of Canada doesCanada does condone the use of condone the use of corporal punishmentcorporal punishment::

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““Every schoolteacher, parent or Every schoolteacher, parent or person standing in the place of a person standing in the place of a parent is justified in using force by parent is justified in using force by way of correction toward a pupil way of correction toward a pupil or child, as the case may be, who or child, as the case may be, who is under his care, if the force does is under his care, if the force does not exceed what is reasonable not exceed what is reasonable under the circumstances”. under the circumstances”.

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Supreme Court of Canada Supreme Court of Canada (2004):(2004):

Section 43 is no longer a defence for Section 43 is no longer a defence for striking a child under 2 and over 12, striking a child under 2 and over 12, for striking a child with a disability, for for striking a child with a disability, for striking a child in the head, or for using striking a child in the head, or for using an object to strike a child;an object to strike a child;

force can be used against a child only force can be used against a child only “by way of correction” as opposed to “by way of correction” as opposed to in anger or frustrationin anger or frustration;;

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any force applied against a child any force applied against a child must be only “minor corrective force must be only “minor corrective force of a transitory and trifling nature”;of a transitory and trifling nature”;

teachers should only use corporal teachers should only use corporal punishment (force) to break up a punishment (force) to break up a fight or in self-defence as long as it fight or in self-defence as long as it is “reasonable in the is “reasonable in the circumstances”.circumstances”.

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Section 15: Section 15: Equality Equality RightsRights

1)1) “Every individual is equal “Every individual is equal before and under the law and has before and under the law and has the right to the equal protection & the right to the equal protection & equal benefit of the law without equal benefit of the law without discrimination and in particular, discrimination and in particular, without discrimination based on without discrimination based on race, national or ethnic origin, race, national or ethnic origin, colour, religion, sex, age or mental colour, religion, sex, age or mental or physical disability”. or physical disability”.

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2. “Subsection (1) does not preclude 2. “Subsection (1) does not preclude any law, program or activity that any law, program or activity that has as its object the amelioration of has as its object the amelioration of conditions of disadvantaged conditions of disadvantaged individuals or groups including individuals or groups including those that are disadvantaged those that are disadvantaged because of race, national or ethnic because of race, national or ethnic origin, colour, religion, sex, age or origin, colour, religion, sex, age or mental or physical disability”.mental or physical disability”.

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Implications for Teachers Implications for Teachers & School Administrators:& School Administrators:

This section has direct relevance to the This section has direct relevance to the area of special education. area of special education.

Re special education, Brown & Zuker Re special education, Brown & Zuker (2002) state that “The law provides them (2002) state that “The law provides them with specific entitlements because with specific entitlements because treating people equally does not always treating people equally does not always result in equality. Some pupils must be result in equality. Some pupils must be treated differently in order to have treated differently in order to have equality” equality”

(p. 298)(p. 298)

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Although this Equality Rights Although this Equality Rights section might first appear to be section might first appear to be more the concern of departments of more the concern of departments of education & school boards, it falls education & school boards, it falls to teachers & school administrators to teachers & school administrators to ensure that on a daily & to ensure that on a daily & operational basis students are not operational basis students are not discriminated against in the discriminated against in the classroom. classroom.

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To ensure that these issues are To ensure that these issues are dealt with in as highly a professional dealt with in as highly a professional manner as possible, the following manner as possible, the following advice with some caveats is offered:advice with some caveats is offered:

racerace – – conscious efforts by educators conscious efforts by educators dealing with students of another race dealing with students of another race should be made to ensure that those should be made to ensure that those students are treated the same as students are treated the same as mainstream students; mainstream students;

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national/ethnic national/ethnic origin: a heightened origin: a heightened awareness is recommended here esp. re awareness is recommended here esp. re certain habits/tendencies peculiar to that certain habits/tendencies peculiar to that specific ethnic origin (e.g. Innu students – specific ethnic origin (e.g. Innu students – very shy & reserved);very shy & reserved);

religion:religion: students of non-Christian faiths students of non-Christian faiths in schools where the majority of students in schools where the majority of students are Christian; a heightened awareness re are Christian; a heightened awareness re teachers’ commentaries is teachers’ commentaries is recommended.recommended.

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sexsex: It sometimes happens that : It sometimes happens that students perceive teachers/school students perceive teachers/school administrators as favoring one sex administrators as favoring one sex over the other (e.g. male teacher over the other (e.g. male teacher conversing with male students on conversing with male students on the topic of sports). Female the topic of sports). Female students may feel discriminated students may feel discriminated against! A heightened awareness – against! A heightened awareness – again! again!

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Conclusions:Conclusions:

The Charter has transformed the way The Charter has transformed the way we look at educational matters from a we look at educational matters from a legalistic perspective; it has made us legalistic perspective; it has made us more aware of the consequences of more aware of the consequences of our actions. our actions.

All matters of education dealing with All matters of education dealing with students & parents are subject to the students & parents are subject to the scrutiny of the Charter.scrutiny of the Charter.

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The Charter is having a The Charter is having a “nationalizing influence” on “nationalizing influence” on education (MacKay & Sutherland, education (MacKay & Sutherland, 2006).2006).

The Charter provides parents with a The Charter provides parents with a mechanism for challenging the mechanism for challenging the substance of school board decisions.substance of school board decisions.

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Common sense & reasonableness Common sense & reasonableness are the operative words for are the operative words for teachers & school administrators teachers & school administrators in their dealings & interactions in their dealings & interactions with students. with students.

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For Follow-Up to This For Follow-Up to This Presentation: Presentation:

Please contactPlease contact

Jerome DelaneyJerome Delaney

Faculty of EducationFaculty of Education

Memorial University of NewfoundlandMemorial University of Newfoundland

St. John’s, NL A1B 3X8 (Tel 737-2071) St. John’s, NL A1B 3X8 (Tel 737-2071)

E-mail:E-mail:

jdelaney@mun.cajdelaney@mun.ca