** Unedited **

Indexed as:

Lutes (Litigation Guardian of) v. Prairie View School Division No. 74

Between Chris Lutes, suing on behalf of his litigation guardian, Debbie Lutes, Ivan Lutes and Debbie Lutes, Plaintiffs (Applicants),

and Prairie View School Division No. 74, Defendant (Respondent)

[1992] S.J. No. 198 DRS 93-03792

Q.B. No. 1305 of 1992 J.C.R.

Also reported at: 101 Sask. R. 232

Saskatchewan Court of Queen's Bench Judicial Centre of Regina

Barclay J.

April 20, 1992 (14 pp.)

   Injunctions — School discipline — Detention — Prohibiting student to sing offensive song — Freedom of expression.

   Application for an interim injunction preventing the detention of the applicant student for singing about safe sex. The applicant claimed an infringement of section 2(b) of the Canadian Charter of Rights and Freedoms.  The applicant was prohibited from leaving the school premises during lunch time for singing a popular song about safe sex in the presence of a school official.

   HELD:  The application was dismissed as moot and because the applicant had not shown irreparable harm.  The court should, except when dealing with a Charter argument, refrain from ruling on the rightness or wrongness of a decision of a school as long as the school was acting within its jurisdiction in carrying out discipline.  The applicant had, however, raised a strong prima facie case that the Charter applied.  The school's actions could not be justified under section 1.  The applicant was entitled to proceed with an action for damages for breach of section 2(b) of the Charter.

STATUTES, REGULATIONS AND RULES CITED:

Canadian Charter of Rights and Freedoms, 1982, ss. 1, 2(b). Education Act, R.S.S. 1978, c. E-0.1, ss. 91, 149, 149(c), 149(e), 150(b), 151, 175.Bruce Campbell, for the Plaintiffs (Applicants).LaVonne Beriault, for the Respondent.

      BARCLAY J.:— The applicant, Chris Lutes ("Chris"), a grade nine student at Milestone High School, contends that he unfairly received a month long noon hour detention for singing a rap tune "Let's Talk About Sex".  Chris says that the song by the United States rap group "Salt 'N' Pepa" promotes safe sex. He sang the song during the noon hour recess on Prairie Avenue, in Milestone.  According to Chris, he offended a school division official namely, Richard Buettner ("Buettner"), by singing the song and this caused the vice-principal of the school, Wayne Mc Gerray ("Mc Gerray"), to discipline him.

      Chris requested that the Court grant an interim injunction prohibiting the defendant, the Prairie View School Division No. 74 (the "School"), from proceeding with its punishment until the matter proceeds to trial. Milestone High School, which is situated in the Town of Milestone, is within the Prairie View School Division No. 74.

      After Chris sang the song in the presence of Buettner, the incident was reported to the School administration, who subsequently caused a letter under the signature of the vice-principal, Mc Gerray, to be sent to Chris' parents informing them of the reason for their son's punishment. This letter reads in part:

      Dear Mr. and Mrs. Lutes

On Monday March 16, 1992, Mr. Richard Buettner, our assistant director, reported an incident to the school administration which involved your son Chris.  Chris and four other boys were walking by Mr. Buettner on the street during noon hour. Chris reportedly broke into song with a currently popular tune entitled, "Let's Talk About Sex". Clearly, this was done for Mr. Buettner's benefit. This song has been banned from the school. The students think it was done at the urging of Mr. Buettner. What better way to offend him than to sing this particular tune?

This action was investigated by myself and Chris at first denied singing at all. Later in our conversation he did admit to singing the song but added that it was not directed at Mr. Buettner in spite of the role he may have played in having this inappropriate song banned in the school.

My own conclusions about the incident are as follow:

1.Chris did sing the song in order to impress the boys he was with.

2.Mr. Buettner was correct in concluding the song was directed at him.

Chris chose to be rude and disrespectful to Mr. Buettner. Inevitably, there are consequences to our actions. In Chris's case I have revoked his noon hour priviledge [sic]) of going downtown for a one month period.  Should he chose [sic] to leave the school property during this time period, suspension would be the consequence. Hopefully, Chris will recognize the fault in his behaviour and will make better choices in the future.

      It is clear from the above that, at the time the letter was drafted, Mc Gerray was under the impression that the song was banned. He so states in the first paragraph. Later in the letter he refers to the role that Buettner may have played in having "this inappropriate song banned in the school".

      In a subsequent affidavit Mc Gerray attempts to qualify the initial reason for disciplining Chris. He now states that in using the word "banned" he was not intending to convey that the song referred to therein was prohibited from being sung and/or played at the School whatever the circumstances.  Both Mc Gerray and Buettner have conveyed to the Court that the song was not, in fact, banned as one would ordinarily understand the term, but rather that the use of such music in keyboard class was no longer permitted. In my view, the initial letter informing Chris' parents of the reason for his punishment clearly articulates that the song was banned and was inappropriate.

      Mr. Buettner said that as he approached Chris and the other boys, Chris began to sing in rap style the song "Let's Talk About Sex" which was followed by laughter and he characterized the pattern of behaviour as insolent, rude and disrespectful.  He further stated that if other adults would have witnessed the incident there would have been a negative reflection upon the School.

      Debbie Lutes, who is Chris' mother and his litigation guardian, after receiving the letter of March 23, ascertained that the song in question does not contain any offensive lyrics and has been used in the schools in North America pursuant to an Aids Awareness Program sponsored by Aids America and therefore her son was wrongfully punished. She also was concerned that the school could discipline her son for something that happened at noon hour and off school property. She also contends that it was a violation of his freedom of expression.

      The School argues that, as Chris is a resident of Riceton and therefore bussed to school, by virtue of ss. 150(b) of The Education Act, R.S.S. 1978, c. E-0.1 (Supp.), he is under the supervision of the School from the moment he enters the bus to attend School

until the time he descends the bus on his return home.  Thus he would be under the supervision of the School during the noon hour of a school day because he generally travels to School prior to the commencement of the school day and does not return home again until after the end of the school day.

THE LAW

When Are Interlocutory Injunctions Available?

      Vancise J. in the decision of Deloitte, Haskins & Sells v. Brooker et al. (1982), 23 Sask. R. 58 (Q.B.), sets out the general principles as to when the courts should grant an interim injunction. At p. 62 he states:

      The following principles determine whether or not an interlocutory injunction will be granted:

      (1)  An interlocutory injunction will only be granted where the right to relief is clear.

      (2)  The plaintiff in asserting that right must show a strong prima facie case, in support of the right which he asserts and a strong possibility that he will succeed at trial.

      (3)  The plaintiff must be able to show that an injunction until the hearing, is necessary to protect him against irreparable damage and loss, mere inconvenience is not enough.

      (4) Where any doubt exists as to the plaintiff's right or if his right is not disputed, but if violation is denied, the court should determine on the balance of convenience to the parties the nature of the injury which the defendant on the one hand would suffer if the injunction was granted and he should turn out to be right and that the plaintiff on the other hand might sustain if the injunction was refused and he should ultimately turn out to be right. The burden of proof that the inconvenience which the plaintiff will suffer by the refusal of the injunction is greater that [sic] which the defendant will suffer lies on the plaintiff.  (Halsbury's Laws of England) (3d Ed.), vol. 21, p. 364).

      Estey J. in Aetna Fin. Services Ltd. v. Feigelman, [1985] 1 S.C.R. 2, [1985] 2 W.W.R. 97 at 103-104, 55 C.B.R. (N.S.) 1, 29 B.L.R. 5, 15 D.L.R. (4th) 161, 4 C.P.R. (3d) 145, 32 Man. R. (2d) 241, 56 N.R. 241, states that the rule as to the availability of an interlocutory injunction, generally, is as stated by McRuer C.J.H.C. in Chesapeake & Ohio Ry. Co. v. Ball, [1953] O.R. 843 at 854-55, [1953] O.W.N. 801:

      The granting of an interlocutory injunction is a matter of judicial discretion, but it is a discretion to be exercised on judicial principles.  I have dealt with this matter at length because I wish to emphasize how important it is that parties should not be restrained by interlocutory injunctions unless some irreparable injury is likely to accrue to the plaintiff, and the Court should be particularly cautious where there is a serious question as to whether the plaintiff would ever succeed in the action.  I may put it in a different way: If on one hand a fair prima facie case is made out and there will be irreparable damage if the injunction is not granted, it should be granted, but in deciding whether an interlocutory injunction should be granted the defendant's interests must receive the same consideration as the plaintiffs.

      These same principles were adopted in a recent decision of the Saskatchewan Court of Appeal in Potash Corporation of Saskatchewan Mining Limited v. Todd, Heinrich and Energy and Chemical Workers Union, Local 922 (1987), 53 Sask. R. 165.

AUTHORITY TO DISCIPLINE

      The first ground relied upon by Chris is that the School did not have the authority to discipline him for something that happened at noon hour and off School property.

      Generally speaking, the powers of a Board of Education are found in ss. 149, 150(b), 151(1) and (2) and 91.

      These sections read:

149 In the exercise of his right to access to the schools of the division and to the benefits of the educational services provided by the board of education, every pupil shall cooperate fully with all persons employed by the board and such other persons who have been lawfully assigned responsibilities and functions . . . and, without restricting the generality of the foregoing, every pupil shall:

(c)observe standards approved by the board of education with respect to cleanliness and tidiness of person, general deportment, obedience, courtesy and respect of the rights of other persons.

(e)conform to the rules of the school approved by the board of education and submit to such discipline as would be exercised by a kind, firm and judicious parent.

150 Every pupil shall be accountable:

(b)to the principal for his general deportment at any time that he is under the supervision of the school and members of the teaching staff, including the time spent travelling between the school and his place of residence.

151(1)Every pupil shall be subject to the general discipline of the school.

(2)Every board of education shall make provisions, which shall be set out in its bylaws or administrative manual, applicable to the schools in its jurisdiction for the expeditious investigation and treatment of problems arising in the relationship between pupil and the school.

      . . .

      91 A board of education shall:

(a)administer and manage the educational affairs of the school division in accordance with the intent of this Act and the regulations;

(b)exercise general supervision and control over the schools in the division and make such bylaws with respect to school management as may be considered necessary for effective and efficient operation of the schools.

      In addition s. 175 authorizes the principal to administer such disciplinary measures as he considers proper.

      The burden of proof is on Chris. There is a presumption of validity in favour of the action taken by the School and, unless the validity of the exercise of the power appears on the face of the act, the correctness of the action taken thereunder may be presumed unless and until the contrary is shown.  Ian MacF. Rogers, Q.C., The Law of Canadian Municipal Corporations, 1st ed. (Toronto: Carswell, 1959) 883.  The principle of democratic local self-government has been preserved within the school system in The Education Act.  Under the Act, the duty and power to manage the educational affairs of each school in a school division has been vested in the Board of Education duly elected by the electors in the division.

      In my opinion, as Chris is bussed to school, he is by virtue of ss. 150(b) of The Education Act, under the supervision of the School from the moment he enters the bus to attend school until the time he descends the bus on his return home and therefore the subsequent discipline of Chris falls within its powers and duties.

      In the case of Hawreluik, Sawchuk and Springinatic v. Board of Education of Shamrock School Division No. 38 (1987), 57 Sask. R. 188 (Q.B.) the students were challenging the right of the school board to place restrictions on the movements of certain students during the school day.

      In answer to this argument, McLellan J. at pp. 191 and 192 stated as follows:

      On this application the board does not have to justify the necessity of the "short bounds" placed on the applicants. It is not for me to decide the rightness or wrongness of the decision of the board. I do not sit on appeal from the board. I am only asked to determine whether the board possessed the authority under the Act to impose the restrictions.

      There is no suggestion by the applicants, for example, that there had been a denial of natural justice. Nor was there any argument that there had been an infringement of any of the rights and freedoms guaranteed under the Canadian Charter of Rights and Freedoms.

      The reasons that the board gave for its action, as contained in two affidavits filed on its behalf, may or may not be convincing.  I make no decision on that point. I am satisfied that the board acted bona fide in a matter within the scope of its powers. As to the wisdom or unwisdom of the board policy, it is for the electors and not the court to decide that issue.

      I agree with those comments, as in my view, the Court should, subject to any Charter argument, refrain from ruling on the rightness or wrongness of the decision of the School as long as the School is acting within its jurisdiction in disciplining the student.

IS THERE A VIOLATION OF SUBSECTION 2(B) OF THE CHARTER?

      However, this is not the end of the matter as Chris also argues that there has been an infringement of his rights under ss. 2(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, namely his freedom of expression. In my view, his submission has merit.

      In a well prepared brief, counsel for the School states that it is by no means settled law that it is the exercise of every statutory power which attracts the application of the Charter. In R. v. J.M.G. (1986), 33 D.L.R. (4th) 277 (leave to appeal S.C.C. denied (1987), 59 O.R. (2d) 286 (S.C.C.)), the Ontario Court of Appeal, in determining the

authority of a principal to search a student, was able to resolve that question without making a definitive ruling that the Charter applied for the purposes of that case.  The Court assumed the Charter applied but clearly identified that there was a significant question to be answered in that regard.  Because it was not necessary to answer the question in order to come to a decision, the Court only highlighted the arguments for and against, choosing to leave the determination of that issue to a future case.

      The Ontario Court of Appeal in Re McKinney v. Board of Governors of the University of Guelph et al. and seven other applications (1986), 57 O.R. (2d) 1, specifically rejected the notion that a body is governmental because it derived jurisdiction from statute or government in some way.  The focus was instead placed on the governmental nature of the functions of the body in issue so that governmental powers such as expropriation or rate levying may attract Charter scrutiny to those activities of the board.  While the question as to whether the Charter applies to school boards does not appear to have been expressly addressed, specific actions taken by the school boards or their staff have been the subject of Charter arguments.

      I am of the opinion that Chris has raised a strong prima facie case that the Charter does apply to the actions of the School in this case.  Subsection 2(b) of the Charter reads:

2.Everyone has the following fundamental freedoms:

. . .

(b)freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

      The School submits that there is no factual basis for the submission by Chris that he was disciplined for singing a banned song and thereby his freedom to express himself in the song has been infringed. It argues that Chris was clearly disciplined for his rude and disrespectful behaviour. For the purpose of this interim application, I respectfully disagree. Chris' rights were crystallized at the time the letter of March 23 was sent to his parents and that letter signed by the vice-principal, Mc Gerray, clearly states in the first paragraph that the song was banned and later in the letter he refers to the role that Buettner, the School official, may have played in having this inappropriate song banned in the School.

      Although in subsequent affidavits, the School officials now take the position that the song had not been banned and that Chris had been disciplined for his rude behaviour, I find as a fact on this interim application, that Chris was disciplined primarily for singing a banned song and this clearly violates his freedom of expression as guaranteed by the Charter.

      In the case of R. v. Pinehouse Plaza Pharmacy Ltd., [1991] 2 W.W.R. 544 (Sask. C.A.), Vancise J. sets out the tests to determine whether governmental action infringed ss. 2(b) of the Charter.  At pp. 552 and 553 he states:

      The Supreme Court of Canada considered this question in Irwin Toy Ltd. v. Que. (A.G.), [[1989] 1 S.C.R. 927]. The majority outlined a two-step inquiry to determine whether the governmental activity sought to be justified is protected by the guarantee of freedom of expression under the Charter.  They expressly and pointedly noted that not all activity is protected by the guarantee of freedom of expression and that if the activity in question is not within the protected sphere, governmental action restricting it does not infringe the Charter.

(a)Step One

      The first step is to determine whether the action or conduct which the claimant wishes to pursue may be categorized as falling within "freedom of expression". One must identify those things that an individual is free to do when the principle of freedom of expression is accepted.

      In deciding what activities justify an appeal to the concept of freedom of expression and whether commercial expression was within the protected sphere, the majority stated at p. 968:

"Expression" has both a content and a form, and the two can be inextricably connected. Activity is expressive if it attempts to convey meaning. That meaning is its content. Freedom of expression was entrenched in our Constitution and is guaranteed in the Quebec Charter so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream. Such protection is, in the words of both the Canadian and Quebec Charters, "fundamental" because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual.

They continued at p. 969:

We cannot, then, exclude human activity from the scope of guaranteed free expression on the basis of the content or meaning being conveyed. Indeed, if the activity conveys or attempts to

convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee.

(b)Step Two

      The second step is to determine whether the purpose or effect of the municipal governmental action was to restrict freedom of expression.  The court must determine whether the purpose or effect of the impugned governmental action was to control attempts to convey meaning. This step requires a further two-stage inquiry. First, if the purpose is to restrict attempts to convey meaning, there is a limitation by law of the s. 2(b) right, and a s. 1 analysis is required to determine whether the law is justified within the provisions of the Constitution.

      Secondly, if it was not the government's purpose to restrict attempts to convey meaning, the court must determine whether the effect of the action is a limitation on the s. 2(b) right.

      I am satisfied Chris has established a strong prima facie case that his freedom of expression as guaranteed under s. 2 of the Charter has been violated and that the actions of the school cannot be justified under s. 1.

      This song, which intended to educate young people about safe sex and aids, was unfortunately characterized by a School official in the letter of March 23, as an inappropriate song.

      In my view, this whole problem arose as a result of overreaction to an inoffensive song that carried a powerful message.

IRREPARABLE HARM

      In order to obtain an interim injunction prohibiting the School from continuing with the School detentions until trial, Chris also must establish that he suffered irreparable injury that could never be adequately compensated for by damages. See Halsbury's Laws of England (3d Ed.), vol. 21, p. 352:

. . .By the term irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired.

      Vancise J. in Waddell and Waddell v. Neill, Neill and Gifts By Neill's Ltd. (1983), 26 Sask. R. 14 (Sask. Q.B.) stated "mere inconvenience is not enough".

      That the alleged injury must be material is also apparent from the statement of Cameron J.A. in Burkhart et al. v. Dairy Producers Co-operative Ltd. (1990), 87 Sask. R. 241 at p. 258:

      It was also incumbent upon the unions to have demonstrated that the alleged violation by the company of their primary rights was likely to result in irreparable harm, in the sense at least that the company's proposed course of action was of major import and was likely to cause the unions and the employees they represented significant injury incapable of adequate remedy at the end of the day.

      Unfortunately, although the revocation of Chris' privileges commenced on March 23, there were only five school days remaining after the date set for the hearing of this application until the privilege can be reinstated.  I agree with counsel for the School, if the alleged risk of irreparable harm was significant enough to warrant the granting of an injunction, why did Chris not bring the application more expeditiously?

      If Chris is successful at trial, he can be compensated adequately in damages. Robert J. Sharpe, in Injunctions and Specific Performance, (Toronto: Canada Law Book Limited, 1983) discusses "irreparable harm", and states at para. 165:

. . . In the context of preliminary injunctive relief, the phrase is given a more specific meaning, namely that the plaintiff, before the trial, must risk some injury which cannot be compensated or remedied other than through the granting of an interlocutory injunction.

      Grotsky J. in Westfair Foods Ltd. v. Derby Holdings Ltd. (1987), Sask. D. 1892-01, stated that, traditionally, an injunction will be granted only where damages would provide an inadequate remedy. Chris has, in fact, advanced a claim for damages.

      Although I conclude that Chris has established a strong prima facie case that his freedom of expression as guaranteed under s. 2 of the Charter has been infringed, I am not granting an interim injunction to prevent the School from proceeding with its punishment until trial. As the detention period was coming to an end at the time of the hearing, this aspect of the case is now academic. Furthermore, I am not satisfied that Chris, by remaining at school during noon hour as a punishment, would suffer irreparable harm that could not be compensated for in damages.

      The application for an interim injunction by Chris to reinstate his noon hour off campus privileges is dismissed.

      Costs shall be costs in the cause.

      Chris, however, is entitled to proceed with his action for damages against the School for allegedly infringing his freedom of expression as guaranteed by s. 2 of the Charter.

BARCLAY J.

DRS/DRS