Chapter Four: Law and Education
We noted earlier that, in an attempt to maintain order, schools create various rules and place restrictions on students that are not ordinarily found in other social settings. Examples include rules governing movement (where students can be), privacy (lockers, personal possessions), appearance and dress, and conduct (smoking, fighting, taking turns). Canadian courts have consistently upheld the rights of schools to restrict students’ behaviour for the purpose of maintaining an orderly atmosphere in the school.
However, the courts have also begun to insist that such rules have some clear justification, and that their application must respect students as persons. School authorities need to show that the limitations placed on students are indeed necessary for the orderly conduct of schools. Tolerance for rules that are set and enforced in an arbitrary fashion is diminishing, and greater attention is being paid to principles of natural justice. This may mean that rules need to be clear and specific rather than vague and general, that students have to be informed of the rules in advance, and that some procedure for review or appeal of decisions may be required (Dickinson, 2009). Examples of these developments as they relate to issues of order and discipline can be seen most clearly in the handling of some of the more extreme situations in schools, which are discussed in the following sections.
Search and Seizure
Canadian students, like all other Canadians, have the right to be free from illegal and unreasonable search of themselves or their possessions by virtue of Section 8 of the Canadian Charter of Rights and Freedoms. Usually, courts must balance this right against the public’s right to be protected from crime and wrongdoing. Court decisions in Canada have supported the right of school administrators to search students or their property when there are reasonable grounds for suspecting some wrongdoing. For example, the right of a principal to search the clothing of a student who had been observed with illegal drugs was upheld by a court (Dickinson, 2009), and the Supreme Court ruled in 1998 (R. v. M. [M.R.] 3 S.C.R. 393) that school officials (in this case, a vice-principal) do have the right to search students and seize prohibited items (in this case, drugs) when it is necessary to provide a safe school environment and maintain order and discipline in a school. In fact, the Supreme Court spoke of how the education acts of each province infer the right of teachers and administrators to search and seize: “[T]he responsibility placed upon teachers, and principals to maintain proper order and discipline in the school and to attend to the health and comfort of students by necessary implication authorizes searches of students” (R. v. M. [M.R.]). The Supreme Court also clarified that teachers and administrators do not need a warrant if they are conducting a search or seizure independently of the police. Reasonable grounds for school personnel is a more lenient standard of proof than that needed to be shown by police officers, justified by the fact that teachers and administrators often must deal with situations immediately to protect students and to ensure an orderly learning environment.
However, schools do not have the authority to search students or their lockers arbitrarily ‒ that is, without some grounds for suspicion (Dickinson, 2009). As in other instances, much would likely depend on the facts of the case and the extent to which the teacher or principal had good grounds for believing that the student was engaged in some significant wrongdoing. The greater the invasion of the student’s privacy, the more serious the cause must be. As for searches of students’ lockers, courts would examine the teacher’s or administrator’s role of authority, the student’s reasonable privacy rights, and the grounds and procedures carried out in the search. Random searches might well be held to be wrong, while searches of particular lockers where there is a suspicion of, say, stolen goods, might well be upheld by the courts. However, due-process provisions, such as informing the student of the reasons for the search and allowing her or him to be present with a witness, would also be advisable.
The case for searching digital devices such as cell phones and laptops is not as clear. Even though it is recognized that students have a diminished right to privacy at school related to lockers and backpacks given the need for schools to maintain discipline and safety, recent Supreme Court decisions suggest that digital devices need special consideration because of the personal and private information they store (Mondaq Business Briefing, 2018). Two Supreme Court cases of concern relate to police search warrants of premises in which the warrant must expressly state that the search of a computer is authorized, and the search of a cellular phone upon arrest of an individual whereby it was made clear that searches of digital devices should be reasonably related to the nature of the arrest. There is little doubt that the outcomes of these cases will have consequences for the confiscation and search of student digital devices. It is yet to be determined the extent to which students diminished right to privacy in the school setting will apply (Mondaq Business Briefing, 2018).
The ability of schools to discipline students comes from two sources, one being the in loco parentis status of teachers and administrators in schools. As well, education legislation in most provinces provides specifically for the right of the school and school board to make rules and enforce discipline on students. These statutes are typically silent on what this provision might mean, and few higher-court cases have applied the Charter guarantees to students. On the whole, Canadian courts have, as has already been noted, accepted that schools can make and enforce rules that can reasonably be considered necessary to maintaining order. But in this area too, reasonable provisions consistent with the Charter and with natural justice are gradually becoming a standard in schools.
Corporal Punishment, Violence, and the Use of Force with Students
One of the most controversial forms of discipline in schools has historically been the practice of corporal punishment. Canada’s Criminal Code (Section 43) allows teachers to use reasonable physical force for the purposes of correction against students: “Every school teacher, parent, or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.”
In its constitutional challenge, the Canadian Foundation for Children, Youth and the Law advocated for the abolition of corporal punishment, as have many teachers’ associations and other groups of educators. In 2000 the Ontario Superior Court was asked by the Children’s Foundation to declare that Section 43 of the Criminal Code was contrary to Sections 7, 12, and 15(1) of the Charter of Rights and Freedoms. The Canadian Federation of Teachers joined with the Attorney General to argue for Section 43, and the court upheld the Section, ruling that it could be interpreted sufficiently narrowly so as not to contravene the Charter (“Reasonable force” provision upheld, December, 2000). The case eventually went to the Supreme Court of Canada, and on January 30, 2004, the Supreme Court ruled that Section 43 was constitutional; that it did not violate a child’s right to security of the person and quality; and that it is not cruel and unusual punishment in situations where the use of force “is part of a genuine effort to educate the child, poses no reasonable risk of harm that is more than transitory and trifling, and is reasonable under the circumstances” (Canadian Foundation for Children, Youth and the Law v. Attorney General [Crim.] [Ont.] 2004 SCC 4/ 2004 CSC 4). Over the years, the courts have limited the use of corporal punishment in various ways: the punishment must be for purposes of correction; it must be reasonable given the offence; it cannot leave a permanent mark or injury; it must be suited to the pupil’s age; and so on.
The stance on section 43 of the Criminal Code is impacted by changes in social values regarding the use of physical punishment. There is less and less public support for corporal punishment, for almost any reason. Many school districts in Canada have prohibited corporal punishment. The sixth Call to Action of the Truth and Reconciliation Commission of Canada (2015) (and the first call under the Education section) advocates that “We call upon the Government of Canada to repeal Section 43 of the Criminal Code of Canada” (p. 1). This sends a clear message to the education community regarding the victimization of Indigenous children at the hands of teachers and clergy in residential schools.
While there is considerable consensus concerning the educational inappropriateness of corporal punishment in schools, teachers’ associations have recently expressed growing concern about student violence in schools, and about violence directed at teachers (Alberta Teachers Association, 2020; Santor et al., 2019). This has focused greater attention on issues of workplace safety and school security, and to the need for teachers to be protected by Section 43 of the Criminal Code when using force against a student for reasons other than punishment. Examples of such a situation might be to restrain a student from harming other people, breaking up a fight, or, defending one’s self against a student whose behaviour becomes violent.
The available evidence does not necessarily support the view that violence in schools has increased (Statistics Canada, 2018/2019). Table 4.13.1, for example, provides Statistics Canada data on the number of cases and decisions in youth criminal courts from 2014/15 to 2018/19, which illustrate that violence rates have actually decreased, though there are critical concerns about the nature of reporting, investigations, and follow-up. Nonetheless, schools have responded to the outcry of public concern by taking two sorts of steps to try to curtail violence ‒ using what might be called educative and disciplinary strategies. Many schools have implemented programs that are aimed at preventing violence by helping students learn to solve disputes through peaceful means, including restitution programs, mediation, peer-counselling, and other conflict-resolution programs. At the same time, many schools and school systems have introduced so-called “zero-tolerance” programs, in which violent actions lead automatically to severe consequences such as suspension or expulsion. Although zero-tolerance policies send a clear message to students and parents about the school’s attitude toward violent behaviour, they do not solve problems. Some provision still has to be made for students who may have been expelled, the causes of the problems are not dealt with, victim’s needs for restitution are generally not met, and cases inevitably arise in which the consequences simply do not fit the supposed offence ‒ for example, bringing a paring knife to school to cut one’s lunch. A balance is clearly needed that protects both students and teachers and allows the school to be orderly without undue coercion.
Youth Court Statistics in Canada, 2018/2019: Number of Cases by Type of Decision
|Type of Decision||2014/2015||2015/2016||2016/2017||2017/2018||2018/2019|
|Transferred to Adult Court||1||0||0||0||0|
|Stayed or Withdrawn||13,876||13,500||13,202||13,103||11,654|
Source. Statistics Canada. Table 35-10-0038-01 Youth courts, number of cases and charges by type of decision. DOI: https://doi.org/10.25318/3510003801-eng
Suspension and Expulsion
Legislation in each province provides for the suspension and expulsion of students from schools. Suspension is a temporary ban on attending school, while expulsion is a permanent ban. Legislation generally gives the school board the authority to make suspension decisions, and boards delegate that authority by resolution to the school; however, the decision to expel a student permanently can be made only by a school board. School board policies normally spell out suspension procedures, including what provisions of natural justice must be observed (e.g., whether or not the student has the right to a hearing before suspension). Provisions for hearings and appeals before expulsion are found in most provincial legislation.
Schools have had almost total latitude from the courts to suspend students for any reason the school or school board deems sufficient, ranging from violating rules to committing a crime. One impact of the Charter has been to require school boards to be clearer about the kinds of grounds on which a suspension can be justified, and to show how these are required to maintain order in a school. Schools will continue to be able to suspend students who endanger others or who refuse to accept the basic rules of the school. But whether a school could legally defend itself for suspending a student who had spoken publicly against a school policy or criticized a teacher is not nearly as certain.