Section 2
Background Information
for Educators
Background Information for Educators
2.1 Background Information on Fundamental Rights & Freedoms Within School Settings
(Summarized from School Law and The Charter, Public Legal Education & Information Service of New Brunswick)
Introduction
The Canadian Charter of Rights and Freedoms became an important part of our lives on April 17, 1982. Canadians watched the pomp and ceremony that surrounded this occasion as Queen Elizabeth II and Prime Minister Pierre Elliott Trudeau signed into law, the Canada Act, 1982 of which the Charter is a part. The Charter guarantees basic rights and fundamental freedoms under the Canadian Constitution.
The Canadian Charter of Rights and Freedoms are not however absolute. Such rights and freedoms may be limited in a manner that can be prescribed by law as can be demonstrably justified in a free and democratic society. Such limits on Rights and Freedoms are provided for by Section 1 of the Charter as follows:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
This section examines a number of rights and freedoms contained in the Charter that may be of particular interest to educators. These include, freedom of expression, equality rights, and legal rights. Educators are also urged to examine other legislations such as the province's Schools Act, the Young Offenders Act, and the Canadian Bill of Rights which have implications on rights and freedoms within the school settings.
Freedom of Expression
Freedom of expression is considered to be a fundamental right in Canadian society. The interpretation of what constitutes freedom of expression is an ongoing process. Subsection(b) of Section 2 of the Charter states:
Section 2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
For educators and students within the school system, freedom of expression raises issues such as manner of dress, censorship of student publications, and the extent to which teachers and students can express their views both in and outside of the classroom. Educators should note the following:
(a) Student Publications
Issues relating to freedom of expression may arise when students are involved with school newspapers. Such issues generally relate to the students' desires to express themselves without censorship and a school's responsibility to ensure that such publications do not contain material which might violate the rights of students or teachers. While students have the right to freedom of expression, they have a responsibility to produce and circulate publications which do not compromise others' rights. What is the acceptable balance?
Most schools have a policy on review of student publications by teachers or other school officials. However the standards of review must be clear, precise, unbiased, and reasonable. As well, standards must be understandable to the students and the community.
It should be noted that review of student articles by teachers or other school officials prior to publication is, at least in part, an effort to ensure that the contents of such publications do not violate these standards. These standards are consistent with Section 1 of the Charter, as they represent the interests of the community.
(b) Personal Appearance & Behaviour
Does the term "expression" in Section 2(b) of the Charter include personal appearance and dress? The Charter does not define the term "expression". Yet, it appears that courts will use a broad interpretation of the word in cases dealing with personal appearance and dress. Again, we should remember that as with the issue of speech, the courts would likely recognize as reasonable the limits that school officials place on dress and behaviour in order to maintain the discipline and the general orderliness required to produce an atmosphere conducive to learning.
(c) Balancing the Rights of Teachers & Students
The rights of a teacher to freedom of expression both in and outside the classroom is a topic of much debate. It is generally recognized that teachers must adhere to a special standard of conduct. But it is not always clear where the line between appropriate and unacceptable behaviour lies.
While all Canadian citizens are guaranteed the rights and freedoms set out in Section 2 of the Charter, these rights and freedoms are not unlimited.
If a teacher makes a comment, distributes literature, or includes subject matter in course work which a student finds offensive or inappropriate, the student should make such concerns known. If the student feels comfortable talking to the teacher involved, they may be able to resolve the problem at that level. The student may also wish to discuss the matter with the principal, parent(s)/guardians. A court challenge is generally considered as a last resort when other avenues to solve disagreements have failed.
(d) Role of Families
The extent to which parent(s)/guardians may express their views or impose standards on the school also raises some interesting issues related to Section 2(b) of the Charter. Parent(s)/guardians who have concerns about such matters as school curriculum or classroom instruction have avenues available to express their views. These people may discuss concerns with the teacher, school principal, district officials or school board representatives.
For any parents/guardians or teacher concerned about a discipline problem, the need for clear communication is essential. Sharing information and agreeing on strategies for dealing with problems ensure a consistency that greatly improves the odds for success in addressing unacceptable behaviour.
It is important to recognize that while parents have rights regarding students' education, their rights too must be balanced with the interests of the community. Teachers and parent(s)/guardians should work as partners and provide consistency and routine for students.
Equality Rights
Issues of equality are difficult to mandate under law. Nevertheless, Section 15 of the Charter provides a rigid basis for enforcing equality rights. This applies not only in society at large but in the public sector workplace as well. Section 15(1) specifically states:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those who are disadvantaged because of race, national or ethnic origin, color, religion, sex, age or mental or physical disability.
The Supreme Court of Canada has described discrimination as: a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed on others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.
The equality provisions of the Charter provide protection against discrimination, particularly discrimination based on race, national or ethnic origin, color, religion, sex, age and mental or physical disability. It is important that we support equality rights in schools specifically in the area of equal treatment, fairness and impartiality. It should be noted that not every distinction or differentiation in treatment will offend the equality provisions of the Charter. In order to govern effectively, legislatures frequently treat individuals and groups in different ways. In fact, to achieve equality it may be necessary to make distinctions (for example, special exemptions for those of particular religious beliefs) and design affirmative action programs (commonly called employment equity in Canada) in relation to those who have been historically disadvantaged. As educators, we may note the following three scenarios:
(a) Equality in Schools
By law, everyone in Newfoundland and Labrador from the ages of five to twenty-one has a right to public education.
New Schools Act
A person who on December 31st in a school year is five years of age or older and younger than twenty-one years of age and who is a Canadian citizen, lawfully admitted to Canada for permanent residence, a child of a Canadian citizen, or a child of a person who is lawfully admitted to Canada for permanent or temporary residence is entitled to have access in that year to an education program in accordance with this act.
Because of the Schools Act and Section 15 of the Charter, schools must offer access to educational privileges for students from the ages of five to twenty-one. It appears that no one in this age group may be excluded (without just cause) from public education. As well, funds must be spent in such a way that every student receives an education suitable to his or her own needs and ability to benefit from it.
(b) Education of Students with Disabilities
In recent times, the education of students with disabilities has received much attention. Schools have been encouraged to integrate students with physical and mental disabilities into regular classes.
When considering the right of a child with disabilities to be treated equally by placement of that child in a regular classroom, the courts will likely balance the interests of that child with those of the other children in the classroom. People in decision-making roles will probably also consider the resources available and the goals of the education system. Any restriction which impacts on the equality of treatment of students must be reasonable in terms of Section 1 of the Charter.
(c) Discrimination on the Basis of Sex & Equality in School Sports
Over a period of time women have faced and continue to face disadvantages and discrimination solely because of their gender. The Charter attempts to eliminate some of these disadvantages by guaranteeing equality and by permitting programs, laws and activities that attempt to correct discrimination. In the past, female and male students have not always been treated equally. For example, female students have not had equal access to vocational programs as have male students. This was based on traditional role expectations in society which were reflected in the school system.
Another example in which the issue of inequality may arise is the access by female students to (male) sports teams or vice versa. For example, does Section 15 give females the right to try out for male teams? This question is not easy to answer. The general principle found in Section 15 of the Charter is: "everyone has the right to equal protection and equal benefit under the law". It could be inferred that all students should have equal access to school athletic resources including equipment.
In light of this, school officials and school boards may wonder about the validity of setting limitations on participation in school sport that are based on gender. If such gender-based limitations are challenged, it is likely that they will be reviewed on the basis of whether or not they are reasonable in the context of the nature of the sport today.
Legal Rights
Legal rights undoubtedly constitute one of the most important areas of the Charter, having both procedural and substantive significance. The comprehensive set of legal rights provisions are listed under Section 7 to 14. For reasons of completeness, it is best to list them in their entirety:
7. Everyone has the right to life, liberty and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
8. Everyone has the right to be secure against unreasonable search or seizure.
9. Everyone has the right not to be arbitrarily detained or imprisoned.
10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor: (b) to retain and instruct counsel without delay and to be informed of that right; and (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
11. Any person charged with an offence has the right (a) to be informed without unreasonable delay of the specific offence; (b) to be tried within a reasonable time; (c)not to be compelled to be a witness in proceedings against that person in respect of the offence; (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; (e) not to be denied reasonable bail without just cause; (f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment; (g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations; (h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.
In essence, these rights address issues pertaining to life, liberty, and security of person (due process), search and seizure, detention, proceedings in criminal matters, treatment and punishment, and self-incrimination. These rights are undoubtedly intended for criminal matters outlining procedural requirements in arrest, detention and trial. Nevertheless, educators should be aware of these issues in relation to procedural requirements within schools. The Canadian Charter undoubtedly marked the beginning of a new era for school principals and teachers. The Charter has had, and will continue to have, an impact on educational decision-making pertaining to matters of routine discipline. The whole notion of traditional authority and deference to those in positions of authority has changed substantially in the past decade.
Such notions are increasingly being replaced by province and board sanctioned guidelines. In recent years what was left of traditional authority is being replaced by legal-organizational authority.
In relation to the Charter, it seems that provincial regulations, school board-based operational and procedural guidelines will have to be more and more detailed. Educators increasingly need guidelines outlining what they have to do and how to do it, especially in the following areas:
(a) Legal Rights Pertaining to Search & Seizure
Issues regarding search and seizure are not new to most educators. What is new is the notion of constitutional rights pertaining to this concept. Section 8 of the Charter specifically states that:
Everyone has the right to be secure against unreasonable search or seizure.
This means that any student who feels that he or she has been illegally searched can seek legal recourse under the Charter. Keep in mind as well that if a student can prove, under Section 24(2) of the Charter, that evidence held against him or her in a criminal charge was "obtained in a manner that infringed or denied" his or her rights, the student can apply to the court to have the evidence dismissed. For example, if a principal searched a student's locker and seized drugs and if the student can prove that the search and seizure was a violation of his or her constitutional rights under the Charter, then he or she could apply to have the drugs dismissed as evidence in court. Without the evidence there is no proof of the charge. Hence, the actions of the principal have significant consequences for criminal proceedings. This may apply similarly in the instance of stolen goods or whatever may be the case as it "would bring the administration of justice into disrepute".
Searching a student is a substantially different issue from simply searching a locker. Most people command a degree of respect for their privacy, either expressly or implicitly. Hence, when an educator decides to conduct a search of the person a new set of factors must be taken into account.
An important rule of thumb is to err on the side of caution. It is best to avoid searches of the person, if possible. Therefore, if a student is suspected of having drugs on his/or her person, if at all possible, other arrangements should be made to solve the problem. It might be wise to involve the parent(s)/guardians as soon as possible. That should eliminate many of the potential problems. Also in the case of drugs, it may be difficult to build an argument as to why there was a pressing need (which would uphold a search of the person), particularly if it extended beyond pant cuffs and shoes. Searching for a dangerous weapon would constitute a different situation.
Today, there may be very little difference between a duffel bag/back pack/sack and a purse. Nevertheless, a word of caution. There is a psychological difference between the two. A purse is culturally considered a place of privacy. Hence, administrators should be very cautious when searching a purse. If weapons or drugs are suspected, call the parent(s)/guardians or the police and have them deal with it. To take a student's bag and not allow him/her to have it is a different matter than taking it and searching it for suspected contents. Have the parent(s)/guardians conduct the actual search. But, should you suspect an explosive device of some nature, the sense of urgency is different. Sometimes large urban schools are exposed to such dangerous situations. These situations command a sense of urgency which means that they must be dealt with swiftly and effectively.
Search and seizure is very important. It could be a potentially problematic area with legal repercussions for the school and those involved. Educators should be aware of the implications, but they must also continue their duties as prescribed under the various Education and School Acts.
Educators should be cautious and not too quick to conduct a search. Examine the situation and decide whether there is sufficient urgency in the circumstances.
Subsequently, do not be too hesitant to act. It is the educator's responsibility to uphold and maintain a safe and secure environment for all in the school.
The supreme Court of Canada provides guidance to school authorities and to courts in outlining factors to be considered in determining whether a search conducted by a teacher or principal in the school environment is reasonable.
(1) The first step is to determine whether it can be inferred from the provisions of the (applicable provincial school legislation) that teachers and principals are authorized to conduct searches of their students in appropriate circumstances. In the school environment such a statutory authorization would be reasonable.
(2) The search itself must be carried out in a reasonable manner. It should be conducted in a sensitive manner and be minimally intrusive.
(3) In order to determine whether a search was reasonable, all the surrounding circumstances will have to be considered.
R.v.M.R.M. (November 26, 1998), S.C. J. No. 83 (S.C.C.).
(b) Detention and Due Process
Issues of power and control have changed somewhat in the past twenty years. The days of the principal telling the student what to do without any explanation have gone. A student who is ordered to sit and wait must be told why he/she is being detained.
The Charter provides the right to be free from illegal detention. The Charter states:
9. Everyone has the right not to be arbitrarily detained or imprisoned.
10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefore;
(b) to retain and instruct counsel without delay and to be informed of that right;
and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
As discussed above, this has potential implications for schools. Indeed, a number of other cases involving detention have come forward. Students may launch successful arguments under this clause of the Charter as a means of challenging the actions of educators.
In the past, for most educators, discussions about detention, due process, and fundamental justice were confined to lectures on law, not on education. School principals were rarely privy to such discussion within the context of decision making in their own work. However, currently, the notion of allowing students the due process of law in line with principles of fundamental justice is important in most schools.
The term "due process" refers to the right to life, liberty and security of person. The Charter specifically states:
Section 7. Everyone has the right to life, liberty and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
This provision of the Charter is equivalent to what is referred to in the United States as due process. As a result, Section 7 has become known as the due process clause of the Charter.
The right to life, liberty and security of person is a fundamental principle within every democratic state. Few educators would deny their fellow citizens such a right. Nevertheless, some difficulty may occur when implementing rights of due process into the everyday context of student discipline. In all likelihood, most schools probably extend due process to their students but do not think of it in these terms.
Due process refers to two important elements: it means allowing students some degree of participation in the disciplinary process, and allowing for an appeal process for decisions reached. Participation means that the student is asked to share his or her side of the story with the teacher or principal administering discipline.
The second important component in due process is allowing for an appeal process. Once a decision has been reached, there should be some method by which the student can object to the decision, should they decide to do so. The student will thus be allowed an opportunity to express his or her views and request a review of the decision.
Conclusion
Given the growing complexity of school life, it is important and challenging to create a balanced policy and practice which recognizes students' rights as well as responsibilities. Educators and students should recognize students' rights to learn and teachers' rights to an environment conducive to teaching. This will best serve the interests of all concerned. Educators need not become semi-trained lawyers, but, as professionals, they should be familiar with the Charter, the Young Offenders Act, and the Criminal Code at the federal level, the statutes and regulations that govern educators at the provincial level; and the policies of their school district.
Educators should view these statutes and regulations as an opportunity to assess the validity and desirability of existing rules and as a means to improve the educational system for all partners concerned.
Edward Broadbent, the former leader of the New Democratic Party of Canada summarized the value of having a Charter of Rights and Freedoms in a school setting. In the 1981 House of Commons debate on the Charter he argued:
I would like the resolution particularly the Charter of Rights and Freedoms, to hang on the wall of every classroom in every school in every region of Canada .......because constitutions are fundamentally about people; and people from childhood on must be encouraged to acquire a deep understanding of their own liberties as well as an even deeper appreciation of the liberties of others.
(Government of Canada 1982)