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 IMPACT OF SAFE SCHOOLS ACT Perspective of Schools and Boards Presented by Hugh M. Kelly

M I L L E R T H O M S O N LLP Toronto Vancouver Calgary Edmonton Markham Waterloo Region Whitehorse Washington, D.C. 2 Impact of Safe Schools Act Perspective 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 Toronto Vancouver Calgary Edmonton Markham Waterloo Region Whitehorse Washington, D.C. 3 Impact of Safe Schools Act Perspective 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 Determining Impact ð Even Though Both Get More Attention Than Other Provisions

M I L L E R T H O M S O N LLP Toronto Vancouver Calgary Edmonton Markham Waterloo Region Whitehorse Washington, D.C. 4 Impact of Safe Schools Act Perspective 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 Toronto Vancouver Calgary Edmonton Markham Waterloo Region Whitehorse Washington, D.C. 5 Impact of Safe Schools Act Perspective 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 Toronto Vancouver Calgary Edmonton Markham Waterloo Region Whitehorse Washington, D.C. 6 Impact of Safe Schools Act Perspective 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 Toronto Vancouver Calgary Edmonton Markham Waterloo Region Whitehorse Washington, D.C. 7 Impact of Safe Schools Act Perspective 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 Toronto Vancouver Calgary Edmonton Markham Waterloo Region Whitehorse Washington, D.C. 8 Impact of Safe Schools Act Perspective of Schools & Boards EXCLUSION: USE OF §265(m)  Must Be Balanced Against Competing Statutory Rights ð Right of Attendance As a Pupil, Resident or Co-terminus ð Right of Parent, As A Visitor ð Right of Appeal to the Board

M I L L E R T H O M S O N LLP Toronto Vancouver Calgary Edmonton Markham Waterloo Region Whitehorse Washington, D.C. 9 Impact of Safe Schools Act Perspective 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 Toronto Vancouver Calgary Edmonton Markham Waterloo Region Whitehorse Washington, D.C. 10 Impact of Safe Schools Act Perspective of Schools & Boards  Statutory Duties of Discipline  Education Act Imposes Duty Upon Teacher and Principal to Maintain Proper Order and Discipline ð Duty of Teacher: In Classroom & While on Duty ð Duty of Principal: In the Whole School

M I L L E R T H O M S O N LLP Toronto Vancouver Calgary Edmonton Markham Waterloo Region Whitehorse Washington, D.C. 11 Impact of Safe Schools Act Perspective of Schools & Boards Oft Forgotten Statutory Duty of Discipline: Duty of Pupil  Duty Prescribed by Regulation ð Exercise Self-Discipline ð Accept Discipline Equivalent to That of Kind, Firm & Judicious Parent ð Be Courteous to Fellow Pupils ð Be Courteous & Obedient to Teachers

M I L L E R T H O M S O N LLP Toronto Vancouver Calgary Edmonton Markham Waterloo Region Whitehorse Washington, D.C. 12 Impact of Safe Schools Act Perspective 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 Toronto Vancouver Calgary Edmonton Markham Waterloo Region Whitehorse Washington, D.C. 13 Impact of Safe Schools Act Perspective 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 Toronto Vancouver Calgary Edmonton Markham Waterloo Region Whitehorse Washington, D.C. 14 Impact of Safe Schools Act Perspective 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 Toronto Vancouver Calgary Edmonton Markham Waterloo Region Whitehorse Washington, D.C. 15 Impact of Safe Schools Act Perspective 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 Toronto Vancouver Calgary Edmonton Markham Waterloo Region Whitehorse Washington, D.C. 16 Impact of Safe Schools Act Perspective of Schools & Boards MITIGATING CIRCUMSTANCES ð Ontario Regulation 37/01 ð 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 Toronto Vancouver Calgary Edmonton Markham Waterloo Region Whitehorse Washington, D.C. 17 Impact of Safe Schools Act Perspective of Schools & Boards MITIGATING CIRCUMSTANCES ð 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 Toronto Vancouver Calgary Edmonton Markham Waterloo Region Whitehorse Washington, D.C. 18 Impact of Safe Schools Act Perspective 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 Toronto Vancouver Calgary Edmonton Markham Waterloo Region Whitehorse Washington, D.C. 19 Impact of Safe Schools Act Perspective of Schools & Boards SUSPENSION AS PENALTY ð Minimum = 1 School Day ð 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 Toronto Vancouver Calgary Edmonton Markham Waterloo Region Whitehorse Washington, D.C. 20 Impact of Safe Schools Act Perspective of Schools & Boards LIMITED EXPULSION AS PENALTY ð Principal has Jurisdiction ð 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 Toronto Vancouver Calgary Edmonton Markham Waterloo Region Whitehorse Washington, D.C. 21 Impact of Safe Schools Act Perspective of Schools & Boards SUSPENSION AND EXPULSION and 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 Toronto Vancouver Calgary Edmonton Markham Waterloo Region Whitehorse Washington, D.C. 22 Impact of Safe Schools Act Perspective 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 ð Either As Resident Pupil ð Or As Open Access Pupil

M I L L E R T H O M S O N LLP Toronto Vancouver Calgary Edmonton Markham Waterloo Region Whitehorse Washington, D.C. 23 Impact of Safe Schools Act Perspective of Schools & Boards TRANSPORTATION  Safety Is The Starting Point  Adjustments If Acting Out  Nature of Adjustment Depends On All Factors Involved ð Re-arrangement of Seating ð Place EA on Bus ð Alternate Form ie Taxi ð 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 IMPACT OF SAFE SCHOOLS ACT Perspective of Schools and Boards Presented by Hugh M. Kelly