Toronto

Vancouver

Calgary

Edmonton

Markham

Waterloo Region

Whitehorse

Washington, D.C. M I L L E R T H O M S O N LLP

IMPACTOF

SAFE SCHOOLS ACT

Perspectiveof

Schools and Boards

Presented by

Hugh M. Kelly

M I L L E R T H O M S O N LLP 2

Toronto

Vancouver

Calgary

Edmonton

Markham

Waterloo Region

Whitehorse

Washington, D.C.

Impact of Safe Schools ActPerspective of Schools & Boards

Highly Personal View

Counsel to Trustees in About 40 Expulsion or Suspension Appeal Hearings Since Act

in Force in September 2001

Substantial Efforts Made to Ensure Fairness in Process

Recent Trend Is Toward Joint Submissions

M I L L E R T H O M S O N LLP 3

Toronto

Vancouver

Calgary

Edmonton

Markham

Waterloo Region

Whitehorse

Washington, D.C.

Impact of Safe Schools ActPerspective of Schools & Boards

Use of Safe Schools Act Is Generally Appropriate

Act Is More Than Just Expulsions and Suspensions

Hard to Come By Statistics That Are Useful to DeterminingImpact

Even Though Both Get More Attention Than Other

Provisions

M I L L E R T H O M S O N LLP 4

Toronto

Vancouver

Calgary

Edmonton

Markham

Waterloo Region

Whitehorse

Washington, D.C.

Impact of Safe Schools ActPerspective of Schools & Boards

Resources Available May Vary by Board, and by School

Dependence Upon Funding

Requirement to Balance Competing Demands Upon Scarce Resources

Availability of SEPPA, ISA and SIP Grants

M I L L E R T H O M S O N LLP 5

Toronto

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Calgary

Edmonton

Markham

Waterloo Region

Whitehorse

Washington, D.C.

Impact of Safe Schools ActPerspective of Schools & Boards

Resources Applied by Board

Generally Translates Into the Supply of Personnel

Again, Requires a Balancing of Competing Demands

Upon Resources

Not Rocket Science That Unit Costs for Special Programs Are Higher

M I L L E R T H O M S O N LLP 6

Toronto

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Calgary

Edmonton

Markham

Waterloo Region

Whitehorse

Washington, D.C.

Impact of Safe Schools ActPerspective of Schools & Boards

Consider Human Resources That are Available Teachers

EA’s and CYW’s

Principals

Special Education Teachers

Resource Teachers

Supervisory Officers

M I L L E R T H O M S O N LLP 7

Toronto

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Calgary

Edmonton

Markham

Waterloo Region

Whitehorse

Washington, D.C.

Impact of Safe Schools ActPerspective of Schools & Boards

Resources Available (Continued)

Consultants, Internal and External, including:

Social Work

Social Service Agencies

Medical / Nursing

Psychology

Psychiatry

M I L L E R T H O M S O N LLP 8

Toronto

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Calgary

Edmonton

Markham

Waterloo Region

Whitehorse

Washington, D.C.

Impact of Safe Schools ActPerspective of Schools & Boards

EXCLUSION: USE OF §265(m)

Must Be Balanced Against Competing Statutory Rights

Right of Attendance As a Pupil, Resident or Co-terminus

Right of Parent, As A Visitor

Right of Appeal to the Board

M I L L E R T H O M S O N LLP 9

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Calgary

Edmonton

Markham

Waterloo Region

Whitehorse

Washington, D.C.

Impact of Safe Schools ActPerspective of Schools & Boards

USE OF §265(m)

Duty of Principal to Exercise Judgment

Refuse to Admit To School or Classroom

Person Whose Presence Is Detrimental

To Physical or Mental Well-being of Pupils

M I L L E R T H O M S O N LLP 10

Toronto

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Calgary

Edmonton

Markham

Waterloo Region

Whitehorse

Washington, D.C.

Impact of Safe Schools ActPerspective of Schools & Boards

Statutory Duties of Discipline

Education Act Imposes Duty Upon Teacher and Principal

to Maintain Proper Order and Discipline Duty of Teacher:

In Classroom & While on Duty Duty of Principal:

In the Whole School

M I L L E R T H O M S O N LLP 11

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Calgary

Edmonton

Markham

Waterloo Region

Whitehorse

Washington, D.C.

Impact of Safe Schools ActPerspective of Schools & Boards

Oft Forgotten Statutory Duty of Discipline: Duty of Pupil

Duty Prescribed by Regulation

Exercise Self-Discipline Accept Discipline Equivalent

to That of Kind, Firm & Judicious Parent

Be Courteous to Fellow Pupils Be Courteous & Obedient to

Teachers

M I L L E R T H O M S O N LLP 12

Toronto

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Calgary

Edmonton

Markham

Waterloo Region

Whitehorse

Washington, D.C.

Impact of Safe Schools ActPerspective of Schools & Boards

Special Needs DOES NOT Abrogate Duty of Discipline

Special Needs MAY Relieve from, or Lessen, Penalty

Special Needs Requires Consideration of Impact of Needs on Suitability of Penalty

Statutory Recognition for This Principle -- OR37/01, 106/01

M I L L E R T H O M S O N LLP 13

Toronto

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Calgary

Edmonton

Markham

Waterloo Region

Whitehorse

Washington, D.C.

Impact of Safe Schools ActPerspective of Schools & Boards

Discipline Is Generally Progressive

Starts With Gentle Guidance

Progresses to Greater Severity

Suspension for More Serious Acts

Expulsion for Most Serious Acts

Board Policy Determines Specific Nature of Disciplinary Responses

M I L L E R T H O M S O N LLP 14

Toronto

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Calgary

Edmonton

Markham

Waterloo Region

Whitehorse

Washington, D.C.

Impact of Safe Schools ActPerspective of Schools & Boards

CERTAIN PUPIL ACTIONS

REQUIRE Suspension

PERMIT Suspension

REQUIRE Expulsion

PERMIT Expulsion

M I L L E R T H O M S O N LLP 15

Toronto

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Calgary

Edmonton

Markham

Waterloo Region

Whitehorse

Washington, D.C.

Impact of Safe Schools ActPerspective of Schools & Boards

Where Suspension or Expulsion Could Result From Pupil Actions:

Safe Schools Legislation DOES NOT DIFFERENTIATE Actions of Special Needs Pupils & Other Pupils

Safe Schools Legislation DOES DIFFERENTIATE

Penalties for Actions of Special Needs Pupils & Other Pupils

M I L L E R T H O M S O N LLP 16

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Calgary

Edmonton

Markham

Waterloo Region

Whitehorse

Washington, D.C.

Impact of Safe Schools ActPerspective of Schools & Boards

MITIGATING CIRCUMSTANCES Ontario Regulation 37/01 Ontario Regulation 106/01

May Make Penalty No Longer Mandatory

But Do Not EXCUSE Behaviour

AND Does Not Prohibit Expulsion

M I L L E R T H O M S O N LLP 17

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Waterloo Region

Whitehorse

Washington, D.C.

Impact of Safe Schools ActPerspective of Schools & Boards

MITIGATING CIRCUMSTANCES OR 37/01 & OR 106/01

No Ability to Control Behaviour No Ability to Understand the

Foreseeable Consequences of Behaviour

Continuing Presence Not Create Unacceptable Risk to

Safety or Well-being of Others

M I L L E R T H O M S O N LLP 18

Toronto

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Calgary

Edmonton

Markham

Waterloo Region

Whitehorse

Washington, D.C.

Impact of Safe Schools ActPerspective of Schools & Boards

FACTORS AFFECTING PENALTY Nature & Circumstance of Incident Degree of Harm to the Victim and

School Community

Intent to Cause Harm Pupil History, Previous Offences

Consistency of Consequences With Similar Incidents

Willingness for Restitution / Rehabilitation

M I L L E R T H O M S O N LLP 19

Toronto

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Calgary

Edmonton

Markham

Waterloo Region

Whitehorse

Washington, D.C.

Impact of Safe Schools ActPerspective of Schools & Boards

SUSPENSION AS PENALTY Minimum = 1 School Day Maximum = 20 School Days

From One or More Classes From One or More School-related

Activities

From Any Combination of Classes/Activities

School and all school related related activities

M I L L E R T H O M S O N LLP 20

Toronto

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Calgary

Edmonton

Markham

Waterloo Region

Whitehorse

Washington, D.C.

Impact of Safe Schools ActPerspective of Schools & Boards

LIMITED EXPULSION AS PENALTY Principal has Jurisdiction Board has Jurisdiction

Only From School in Which Previously Enrolled

From School-Related Activities

For 20 School Days to One Year

Until Meet Board Requirements

Board School-Return Programs

M I L L E R T H O M S O N LLP 21

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Markham

Waterloo Region

Whitehorse

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Impact of Safe Schools ActPerspective of Schools & Boards

SUSPENSION AND EXPULSIONand

SPECIAL NEEDS PUPILS Limited Choices of Schools in

Which Appropriate Programs Are Offered

Availability of Suitable Staff May Further Limit Choices

This is a Further Example of Need to Balance Competing Interests

M I L L E R T H O M S O N LLP 22

Toronto

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Calgary

Edmonton

Markham

Waterloo Region

Whitehorse

Washington, D.C.

Impact of Safe Schools ActPerspective of Schools & Boards

FULL EXPULSION AS PENALTY From ALL Ontario Schools

Unlimited As To Time Requirement to Complete Strict

Discipline Program

Right to Attend Inoperative

Either As Resident Pupil Or As Open Access Pupil

M I L L E R T H O M S O N LLP 23

Toronto

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Calgary

Edmonton

Markham

Waterloo Region

Whitehorse

Washington, D.C.

Impact of Safe Schools ActPerspective of Schools & Boards

TRANSPORTATION Safety Is The Starting Point Adjustments If Acting Out Nature of Adjustment Depends

On All Factors Involved Re-arrangement of Seating Place EA on Bus Alternate Form ie Taxi

Temporary Suspension of Transportation Service

Toronto

Vancouver

Calgary

Edmonton

Markham

Waterloo Region

Whitehorse

Washington, D.C. M I L L E R T H O M S O N LLP

IMPACTOF

SAFE SCHOOLS ACT

Perspectiveof

Schools and Boards

Presented by

Hugh M. Kelly