Chapter Sixteen Student Welfare Rights Student Welfare Rights

Extension of School Authority

Student Records Grades and Certificates Search, Seizure, and Priva

cy Procedural Fairness

Creating Offences Practices Provincial Provisions

Corporal Punishment and the Use of Force Criminal Code Assault Pro

visions The Necessity Defence Miscellaneous Defences Correction of Children by

Force Specific Statutory Provisio

ns Child–Welfare Considerati

ons General Human Rights

Race Gender Pregnancy Age

Welfare rights and option Welfare rights and option rights (Golding, 541).  rights (Golding, 541). 

Welfare rights generally involve the Welfare rights generally involve the entitlement to something positive, entitlement to something positive, such as procedural fairness, or the such as procedural fairness, or the freedom from something negative, freedom from something negative, such as corporal punishment or the such as corporal punishment or the punitive use of grades.  punitive use of grades. 

In contrast, option rights involve the In contrast, option rights involve the freedom to make certain choices.  freedom to make certain choices. 

Student Records

From the From the Student Bill of RightsStudent Bill of Rights (Ungar, (Ungar, 19–22), which was drafted and passed 19–22), which was drafted and passed first reading in the Ontario Legislature in first reading in the Ontario Legislature in 1973. It never went to second reading and 1973. It never went to second reading and is not law in Ontario or anywhere else. is not law in Ontario or anywhere else. 

No school board shall, . . . No school board shall, . . . (d) punish a student for his participation (d) punish a student for his participation

in a non-school sponsored activity or enter in a non-school sponsored activity or enter information about that activity into school information about that activity into school records, or report such information to records, or report such information to prospective employers or other persons. prospective employers or other persons. 

Student Records

The record exists for the use of teachers and The record exists for the use of teachers and school board personnel involved directly or school board personnel involved directly or indirectly in the instruction of the pupil.  indirectly in the instruction of the pupil. 

It cannot be released to third parties without It cannot be released to third parties without the written permission of the pupil if the the written permission of the pupil if the pupil is an adult or of a parent of the pupil if pupil is an adult or of a parent of the pupil if the pupil is a child.  the pupil is a child. 

Persons who have legitimate access to the Persons who have legitimate access to the record must preserve the secrecy of its record must preserve the secrecy of its contents.  contents. 

Student Records

The record exists for the improvement of The record exists for the improvement of instruction, broadly defined, and cannot instruction, broadly defined, and cannot contain information that is irrelevant to this contain information that is irrelevant to this purpose.purpose.

However . . .However . . . In spite of the wording of section 266, In spite of the wording of section 266, school school

officials can be required to produce a student officials can be required to produce a student record under the Canada Evidence Act in record under the Canada Evidence Act in young offender hearings because of the young offender hearings because of the precedence of federal legislation over precedence of federal legislation over provincial in this area provincial in this area (Wilson and Tomlinson, (Wilson and Tomlinson, 443).  443).  The record can also be required for some The record can also be required for some types of child welfare proceedings. types of child welfare proceedings. 

Student Records

And . . .And . . . The federal Divorce Act contains a The federal Divorce Act contains a provision provision

for a non-custodial spouse who is the parent for a non-custodial spouse who is the parent of a student to obtain information from the of a student to obtain information from the student records of the daughter or son.  student records of the daughter or son. 

16.(5) Unless the court orders otherwise, a 16.(5) Unless the court orders otherwise, a spouse who is granted access to a child of spouse who is granted access to a child of the marriage has the right to make inquiries, the marriage has the right to make inquiries, and to be given information, as to the health, and to be given information, as to the health, education and welfare of the child.  education and welfare of the child. 

This provision has the potential to infringe This provision has the potential to infringe on provincial jurisdiction in the areas of on provincial jurisdiction in the areas of health, education, and welfare. health, education, and welfare. 

Grades and Certificates

No one mayNo one may (b) lower a student's academic standing or grades (b) lower a student's academic standing or grades

as a form of punishment for non-academic reasons; as a form of punishment for non-academic reasons; (c) withhold an award, diploma or promotion from a (c) withhold an award, diploma or promotion from a student where the student has successfully student where the student has successfully completed the course of study related to that award, completed the course of study related to that award, diploma or promotion, as the case may be; diploma or promotion, as the case may be;

However . . .However . . . Schools routinely withhold transcripts of marks and Schools routinely withhold transcripts of marks and

certificates as punishment for such offences as certificates as punishment for such offences as overdue library books, unpaid library fines, and overdue library books, unpaid library fines, and unpaid parking tickets.  This is one of a few effective unpaid parking tickets.  This is one of a few effective penalties that educational institutions have at their penalties that educational institutions have at their disposal.disposal.

Search, Seizure, and Privacy

School officials have narrower School officials have narrower powers of search and seizure over powers of search and seizure over students than do the students' students than do the students' parents but parents but broader powers than the broader powers than the policepolice.  Broader powers imply that .  Broader powers imply that more intrusive searches can be more intrusive searches can be conducted with less justification but conducted with less justification but justification is always required. justification is always required. 

Conditions for SearchConditions for Search . . . reasonable grounds to believe that a school . . . reasonable grounds to believe that a school

rule has been violated and the evidence of the rule has been violated and the evidence of the breach will be found on the student.  These breach will be found on the student.  These grounds may well be provided by information grounds may well be provided by information received from just one student that the school received from just one student that the school authority considers credible.  authority considers credible. 

Teachers require reasonable grounds to conduct Teachers require reasonable grounds to conduct a search, a lower standard than the probable a search, a lower standard than the probable cause required by the police.  cause required by the police. 

school officials can conduct searches for school officials can conduct searches for suspected violations of school rules, possession suspected violations of school rules, possession of tobacco for exampleof tobacco for example, something that the police , something that the police cannot do. cannot do. 

Strip searches are best Strip searches are best avoided.avoided.  

They may be justified if there is a They may be justified if there is a strong suspicion that a student strong suspicion that a student possesses a dangerous substance or possesses a dangerous substance or object or stolen goods of significant object or stolen goods of significant value that can be concealed on the value that can be concealed on the person.  person. 

CautionsCautions A strip search should be conducted by a school A strip search should be conducted by a school

staff member of the same sex as the student and staff member of the same sex as the student and should be witnessed by another same-sex staff should be witnessed by another same-sex staff member and by another same-sex person chosen member and by another same-sex person chosen by the student being searched if he or she by the student being searched if he or she desires it.  desires it. 

Two alternatives to strip searches conducted by Two alternatives to strip searches conducted by school staff should be considered.  school staff should be considered.  If it is believed that the parents will co-operate, a If it is believed that the parents will co-operate, a

parent can be called in to conduct the search.  parent can be called in to conduct the search.  If the requirements are met for a police arrest, it may If the requirements are met for a police arrest, it may

be preferable to have the police make the arrest and be preferable to have the police make the arrest and conduct a post-arrest search.  conduct a post-arrest search. 

Procedural Fairness

The Constitution Act, 1982 contains a The Constitution Act, 1982 contains a part, consisting of sections 7 to 14, part, consisting of sections 7 to 14, entitled “Legal Rights”, which provides entitled “Legal Rights”, which provides to Canadians many procedural to Canadians many procedural safeguards.  The most general of these safeguards.  The most general of these sections follows.  sections follows. 

7. Everyone has the right to life, 7. Everyone has the right to life, liberty and security of the person and liberty and security of the person and the right not to be deprived thereof the right not to be deprived thereof except in accordance with the except in accordance with the principles of fundamental justice.  principles of fundamental justice. 

Procedural Fairness

This fundamental justice includes the This fundamental justice includes the idea of due processidea of due process

. . . due process requires, in connection . . . due process requires, in connection with a suspension of 10 days or less, that with a suspension of 10 days or less, that the student be given oral or written the student be given oral or written notice of the charges against him and, if notice of the charges against him and, if he denies them, an explanation of the he denies them, an explanation of the evidence the authorities have and an evidence the authorities have and an opportunity to present his side of the opportunity to present his side of the story. story. 

Creating Offences

The existence and importance of formal The existence and importance of formal offences in schools depends very much on the offences in schools depends very much on the age of the students.  age of the students. 

At the elementary level, discipline is handled At the elementary level, discipline is handled informally.  informally. 

Written codes of conduct are unusual, Written codes of conduct are unusual, especially at the lower grade levels where especially at the lower grade levels where children would have difficulty reading them.  children would have difficulty reading them. 

minor offences provoke mild sanctions minor offences provoke mild sanctions designed to help the child behave more designed to help the child behave more appropriately in the future.  appropriately in the future. 

Provincial Provisions

The Ontario provisions for suspension and The Ontario provisions for suspension and expulsion are fairly typical of those in most expulsion are fairly typical of those in most Canadian provinces.  Canadian provinces. 

Under section 23 of the Education Act school Under section 23 of the Education Act school principals have the power to suspend principals have the power to suspend students up to a board-determined time limit students up to a board-determined time limit for a long list of offences.  for a long list of offences. 

Suspended students as well as their parents Suspended students as well as their parents must be informed in writing of the must be informed in writing of the suspension, the reasons for it, and their right suspension, the reasons for it, and their right to appeal.  to appeal. 

Variations to Variations to procedures. procedures. 

In Nova Scotia, under section 39 of the Education In Nova Scotia, under section 39 of the Education Act, a principal can suspend a student for up to five Act, a principal can suspend a student for up to five days or some shorter period authorized by the days or some shorter period authorized by the board, and the board can suspend for a period up to board, and the board can suspend for a period up to the end of the current school year.  Expulsions are the end of the current school year.  Expulsions are not permitted.  not permitted. 

. . . expulsions are frequently overlooked in . . . expulsions are frequently overlooked in subsequent school years, particularly by other subsequent school years, particularly by other schools or other boards.  schools or other boards. 

In some, the appeal is to the board itself rather than In some, the appeal is to the board itself rather than to board employees, and in some provinces a further to board employees, and in some provinces a further appeal to the minister of education or the minister's appeal to the minister of education or the minister's designate is permitted.  designate is permitted. 

Corporal Punishment and the Corporal Punishment and the Use of ForceUse of Force

A controversial issue in student A controversial issue in student rights in recent years. rights in recent years. 

. . . defined as the intentional . . . defined as the intentional infliction of physical pain on a infliction of physical pain on a person as punishment for an offence person as punishment for an offence and for the purpose of shaping that and for the purpose of shaping that person's behaviour.  person's behaviour. 

Corporal Punishment and the Corporal Punishment and the Use of ForceUse of Force

corporal punishment in schools is quickly corporal punishment in schools is quickly disappearing in Canada and in other disappearing in Canada and in other industrialized countries.industrialized countries.   

increased concern over child abuse, has increased concern over child abuse, has brought the legitimate and illegitimate uses of brought the legitimate and illegitimate uses of physical force in school settings into sharp physical force in school settings into sharp focus.  focus. 

use of force on other persons may violate a use of force on other persons may violate a number of statutes and regulations including number of statutes and regulations including the Criminal Codethe Criminal Code

Criminal Code Assault Criminal Code Assault Provisions Provisions

Under most circumstances, the direct Under most circumstances, the direct or indirect application of force to or indirect application of force to another person constitutes assault, another person constitutes assault, which, under the Criminal Code, is which, under the Criminal Code, is punishable by a fine or prison punishable by a fine or prison sentence.  sentence. 

several defences are available to several defences are available to teachers, including one that is specific teachers, including one that is specific to teachers and is intended to apply to to teachers and is intended to apply to the use of corporal punishment.  the use of corporal punishment. 

Common assaultCommon assault 265. (1) A person commits an assault when 265. (1) A person commits an assault when (a) without the consent of another person, he applies (a) without the consent of another person, he applies

force intentionally to that other person, directly or force intentionally to that other person, directly or indirectly; indirectly;

(b) he attempts or threatens, by an act or a gesture, to (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that apply force to another person, if he has, or causes that other person to believe upon reasonable grounds that he other person to believe upon reasonable grounds that he has, present ability to effect his purpose; or has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person imitation thereof, he accosts or impedes another person or begs.  or begs. 

(2) This section applies to all forms of assault, including (2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated a third party or causing bodily harm and aggravated sexual assault.  sexual assault. 

Common assaultCommon assault (3) For the purposes of this section, no (3) For the purposes of this section, no

consent is obtained where the complainant consent is obtained where the complainant submits or does not resist by reason of submits or does not resist by reason of

(a) the application of force to the complainant (a) the application of force to the complainant or to a person other than the complainant; or to a person other than the complainant;

(b) threats or fear of the application of force (b) threats or fear of the application of force to the complainant or to a person other than to the complainant or to a person other than the complainant; the complainant;

(c) fraud; or (c) fraud; or (d) the exercise of authority.  (d) the exercise of authority.  Intent is a requirement for an assaultIntent is a requirement for an assault

The Necessity DefenceThe Necessity Defence necessity is a defence for use of force in situations that necessity is a defence for use of force in situations that

are not usually considered assaults and that are of no are not usually considered assaults and that are of no interest to the police or the courts.  interest to the police or the courts. 

Examples Examples an adult rushing onto a busy street to pick up and an adult rushing onto a busy street to pick up and

return to safety a small child who has ventured into return to safety a small child who has ventured into traffic.  traffic. 

Spotting in gymnastics, could involve the application of Spotting in gymnastics, could involve the application of substantial force to the student to prevent injury -  (a substantial force to the student to prevent injury -  (a teacher who fails to spot potentially dangerous teacher who fails to spot potentially dangerous gymnastics exercises could be guilty of negligence)  gymnastics exercises could be guilty of negligence) 

Necessity probably covers teachers using force to Necessity probably covers teachers using force to break up fights or gain possession of weapons from break up fights or gain possession of weapons from students. students. 

Correction of Children by Correction of Children by Force Force

The application of force to children in a The application of force to children in a manner that would normally constitute manner that would normally constitute assault is specifically provided for in the assault is specifically provided for in the Criminal Code.  Criminal Code. 

43. Every schoolteacher, parent or 43. 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 way parent is justified in using force by way of correction toward a pupil or child, as of correction toward a pupil or child, as the case may be, who is under his care, the case may be, who is under his care, if the force does not exceed what is if the force does not exceed what is reasonable under the circumstances. reasonable under the circumstances. 

Teacher/parent StatusTeacher/parent Status

Corporal punishment can be Corporal punishment can be administered by a schoolteacher or a administered by a schoolteacher or a person standing in place of a parent.person standing in place of a parent.   

a person standing in place of a parent a person standing in place of a parent is one who has taken on essentially all is one who has taken on essentially all the obligations of parenthood, the obligations of parenthood, including maintenance and support.  including maintenance and support. 

An employee in an institution, An employee in an institution, residential or not, does not stand in residential or not, does not stand in place of a parent.  place of a parent. 

“ “State of North Carolina v. Debra Pittard” State of North Carolina v. Debra Pittard” in daycare worker convicted for spanking a in daycare worker convicted for spanking a child of two was upheld child of two was upheld

the accused was not a teacher either by the accused was not a teacher either by licensing or function and that she was not licensing or function and that she was not standing in place of a parent.  standing in place of a parent. 

The Supreme Court of Canada then applied The Supreme Court of Canada then applied this reasoning to the word “schoolteacher”, this reasoning to the word “schoolteacher”, noting that it is narrower than the terms noting that it is narrower than the terms “teacher” and “instructor”.  To be a “teacher” and “instructor”.  To be a schoolteacher one must be licensed as such schoolteacher one must be licensed as such and must be giving “formal instruction in a and must be giving “formal instruction in a children's school” (“Ogg-Moss v. R.”, 315). children's school” (“Ogg-Moss v. R.”, 315). 

    Section 43 does not protect daycare Section 43 does not protect daycare workers, school paraprofessionals workers, school paraprofessionals such as aides and attendants, or bus such as aides and attendants, or bus drivers.  drivers. 

Any force used by a schoolteacher for Any force used by a schoolteacher for correction must be reasonable under correction must be reasonable under the circumstances, and the person to the circumstances, and the person to whom the force is applied must be whom the force is applied must be capable of learning from the capable of learning from the correction.  correction. 

Specific Statutory Provisions Specific Statutory Provisions

All provinces have enacted general All provinces have enacted general provisions in statutes or regulations provisions in statutes or regulations governing discipline, often with the governing discipline, often with the “kind, firm, and judicious parent”“kind, firm, and judicious parent” type type of wording.  of wording. 

Many do not have specific provisions Many do not have specific provisions for corporal punishment, for corporal punishment,

Thus, corporal punishment is permitted Thus, corporal punishment is permitted by default in accordance with the by default in accordance with the provisions of the Criminal Code.  provisions of the Criminal Code. 

Specific Statutory Provisions Specific Statutory Provisions

Corporal punishment is explicitly permitted Corporal punishment is explicitly permitted in Newfoundland and Labrador by the in Newfoundland and Labrador by the Schools Act as follows.  Schools Act as follows. 

75. A teacher in a school shall 75. A teacher in a school shall (d) maintain proper order and discipline in (d) maintain proper order and discipline in carrying out his or her duties, avoiding carrying out his or her duties, avoiding corporal punishment except when all other corporal punishment except when all other methods of enforcing discipline have failed, methods of enforcing discipline have failed, and then keep a record of all offences and and then keep a record of all offences and the punishment administered, which the punishment administered, which records shall be open to inspection by his or records shall be open to inspection by his or her principal and the appropriate her principal and the appropriate superintendent.  superintendent. 

Specific Statutory Provisions Specific Statutory Provisions

79.(1) Teachers are permitted to 79.(1) Teachers are permitted to administer corporal punishment in administer corporal punishment in reason and with humanity, but they reason and with humanity, but they shall refrain from the use of it, until shall refrain from the use of it, until other means of discipline have been other means of discipline have been tried, and striking children on the tried, and striking children on the head is forbidden, and corporal head is forbidden, and corporal punishment shall not be administered punishment shall not be administered to delicate or nervous children.  to delicate or nervous children. 

Specific Statutory Provisions Specific Statutory Provisions

(2) A teacher shall not administer corporal (2) A teacher shall not administer corporal punishment to any pupil unless a 3rd punishment to any pupil unless a 3rd person, not being a pupil, is present to person, not being a pupil, is present to witness such punishment.  witness such punishment. 

In contrast, British Columbia, which had In contrast, British Columbia, which had forbidden corporal punishment by forbidden corporal punishment by regulation for many years, has now regulation for many years, has now incorporated that restriction into the School incorporated that restriction into the School Act itself.  Section 95(3) requires that the Act itself.  Section 95(3) requires that the discipline of a student “shall not include discipline of a student “shall not include corporal punishment” (662).  corporal punishment” (662). 

Child–Welfare Considerations Child–Welfare Considerations

heightened concern over child abuse and heightened concern over child abuse and the widespread adoption of mandatory the widespread adoption of mandatory reporting requirements has placed those reporting requirements has placed those school systems that allow corporal school systems that allow corporal punishment in a very awkward position punishment in a very awkward position

corporal punishment . . . could be corporal punishment . . . could be construed as child abuse, construed as child abuse,

teachers and school administrators who are teachers and school administrators who are aware of its use but who do not report it to aware of its use but who do not report it to child–welfare authorities face the child–welfare authorities face the possibility of being prosecuted for failure to possibility of being prosecuted for failure to report suspected child abuse.  report suspected child abuse. 

Human rightsHuman rights codes forbid discrimination codes forbid discrimination The Human Rights Code of Ontario provides an The Human Rights Code of Ontario provides an

example.  example.  1. Every person has a right to equal treatment with 1. Every person has a right to equal treatment with

respect to services, goods and facilities, without respect to services, goods and facilities, without discrimination because of race, ancestry, place of discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status sexual orientation, age, marital status, family status or handicap.  or handicap. 

Schools generally have good human rights records, Schools generally have good human rights records, and there are very few school-related cases and there are very few school-related cases involving students.  involving students. 

Discrimination is permitted when a prohibited Discrimination is permitted when a prohibited ground is legitimately required for the performance ground is legitimately required for the performance of a function.  of a function. 

Discrimination Issues and Discrimination Issues and examplesexamples

GenderGender RaceRace Pregnancy Pregnancy AgeAge