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List of Readings

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Unit One: Intersection of Law and Education: The

Canadian

Charter

and Freedoms

1.1

W. H. Giles. "Constitutional Issues."

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1.2

G. M. Dickinson. ?

"Criminal Process in the Schools and Young Offenders'

Law."

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1.3

S. Day. "Equality Seekers Troubled by Affirmative Action Rulings."

1.4 M. LeBaron. ?

"Among Equals: Integration of Exceptional Children in

Regular Classroom."

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Unit Two:

Part One: Teacher Rights and Responsibilities

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2.1

G. M. Dickinson. "Teachers' Rights and Duties in an Era of Change."

2.2

E. L. Huribert, & M. A. Huribert. ?

"Freedom of Expression Outside the

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2.3

J.

Classroom."

Graham. "AIDS in Schools: A Model of Enlightenment and Tolerance?"

2.4 R. Noonan. "The College of Teachers—A Case of Double Jeopardy?"

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Part Two: Negligence, Intentional Torts, and Educational Malpractice

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2.5 M. LeBaron. "Summary—Negligence."

2.6 M. LeBaron. ?

"Supervision

Hypothetical."

2.7 J. R. Covert. "Educational Malpractice and the Future of Teaching."

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Unit

Three: Student and

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Parent Rights and Responsibilities

3.1

R. F. Magsino. "Student Rights and the Charter: An Analysis of Legal and

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Extra-legal Considerations."

3.2 J. C. Anderson. "Students and the Law: Curriculum Implications."

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3.3

E. Doctor. "Focus: Student Legal Rights and the Role of Schools."

3.4 Y. M. Martin. ?

"Parental Participation Policy for Schools: A Comparative

Legislative Analysis of Reform and Dynamic Conservatism in British

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Columbia, Alberta, and Quebec."

Unit Four: Criminal Law and Wrap Up

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4.1

H. Bohne. "Freedom and Fair Copies in the Information Age."

4.2

M. Vegh. "Students and Teachers Should Have a Copyright."

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4.3

S. M. Crean. "It's High Time Copycats Start Paying the Piper."

4.4

"Facts: Copyright and Canadian Libraries."

4.5

"Legislative Update: Copyright and Canadian Libraries."

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List of

Unit Four. Cn i

minal Law and Wrap Up (continued)

4.6 "Chronology: Copyright Legislation in Canad."

4.7 G. M. Dickinson. "Principals and Criminal investigations of Students:

Recent Developments."

Additional Readings

A. 1 V. Cockran. "The Basics of Legal Research."

A.2 T. Roberts. "Taking the Law into Your Own Hands."

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UNIT ONE

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RIGHTS AND FREEDOMS

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Reading 1.1

1. Introduction

In the United States, several constitutional provisions of the federal government

influence the operation of schools. Among these are constitutional rights

guaranteeing freedoms of religion, speech, press and peaceable assembly, a right

to bear arms, protection against unreasonable searches, recourse to a grand jury

in case of capital punishment, protection against self-incrimination, the right of

due process, the right to own property, to have a speedy trial by an impartial jury,

protection against excessive bail, and against cruel and unusual punishments.

Such rights, however, are against the central, not the state governments.

As individual states joined the Union, most adopted provisions similar to those

set forth in the Constitution. Since these provisions are often a codification of the

law, some are relevant not only to U.S. schools and courts, but also to

Commonwealth schools and courts. For reference purposes, an abbreviated

version of relevant sections and parts of sections of the U.S. Constitution has been

included at the end of this chapter.

While all of the sections have some relevance, some, like Article 1, section 10,

the First Amendment, the Fifth Amendment and the Fourteenth Amendment

contain the key provisions for our purposes.

The Canadian Charter of Rights and Freedoms, comprising sections 1-34 of the

Constitution Act, 1982 [enacted by the Canada Act, 1982 (U.K.), c. 11, Schedule B]

bears a striking resemblance to its American counterpart. Sections of the Charter

and other sections of the Constitution Act that could be relevant in educational

issues are reproduced at the end of this chapter. Many cases decided under the

U.S. Constitution may be applied under the Canadian Charter, and may be

important in helping principals and teachers decide what they should, or should

not, do. Sections of the Charter which may come to litigation include section 8

(regarding the right to search the person, the bags and the lockers of students for

alcohol, drugs or stolen property). Other sections of the Charter that may be

invoked in cases involving schools are sections 6(2), 7, 8, 9, 15 or 23.

I

The ability of a school or university to regulate and control the activities of the

students is partly controlled by the constitutional issues involved. At university,

where the staff is dealing with adults, this seems appropriate. For children,

' whose interests are sometimes sabotaged and destroyed by the Constitution,

instead of being nurtured, the matter is seriously at issue. What may seem

reasonable to someone who has no personal knowledge or understanding of a

situation involving young children may well be irrational and destructive to

I

someone concerned with, and committed to helping children grow. For this

reason, the judiciary has a very heavy responsibility in dealing with children, for

it too, in the end, is acting

in loco parentis.

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The following cases under the U.S. Constitution are probably equally relevant

under the Canadian Charter of Rights and Freedoms. Since the latter was enacted

I ?

only in 1982, there are as yet few cases on it; however, these cases are as relevant

Reprinted with permission from: Giles, W.H. (1988). Constitutional issues.

Schools and

students (

pp .

54-76). Toronto: Carswell.

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2—Reading 1.1

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W.H. Giles

for the U.S. as the U.S. cases in this area are for Canada. A few cases from other

jurisdictions have also been included, where they are relevant to Canadian or U.S.

constitutional issues.

2. Right of Schools to Expel or Suspend

(a) For Drug Offences

The discovery of drugs in the possession of students in private or state schools is a

nightmare for administrators and principals. All evidence suggests that

prevention of drug abuse can best be achieved by the influence of nurturing,

supportive parents. Unfortunately, for a variety of reasons, parents cannot or will

not always fulfil this role. It is obvious that, in such cases, additional support

must come from the school. Teachers and principals must, often at great personal

sacrifice, do whatever they can to save a child threatened by substance abuse.

The educator acts in

loco parentis;

acting as a parent means exactly what it

says. There is legal as well as common-sense authority for this doctrine, which

goes beyond disciplinary to non-disciplinary matters:

Piesnicar v. Kovach,

430

N.E. 2d 648 (Ill. App. 1981).

Commonly, schools respond to the discovery of drugs by expulsion of the

student involved. However, the constitutional right to due process may affect the

school's right to expel. Where a New York State student sold marijuana on the

school grounds, his actions gravely affected the well-being of other students, and

gave the principal the authority to expel. The student's conduct made his

continued presence harmful to the welfare of the 'school:

Rutz v.

Essex

Junction,

457 A. 2d 1368 (Vt. 1983).

Where a student sold pills to other students representing them as "speed" when

they were innocuous caffeine pills, such selling did not violate school rules, and

did not represent grounds for expulsion:

McEntire u. Brevard County,

471 So. 2d

1287 (Fla. App. 1985). On the other hand, where a dean of students was told by a

student that the latter had purchased speed for resale to other students, who also

swore that he had done so, then, though the offending student recanted, it was

enough to expel the student for the balance of theyear, even if the substance sold

was, in fact, only

caffeine:

Jones v. Brevaro County School Bd.,

470 So. 2d 760 (Fla.

App. 1985).

The search of a student's locker and of a metal box found to contain drugs was

justified because school officials had reasonable grounds to suspect that the search

would turn up evidence that the student had broken the law. The search was

limited to the box in the locker where drugs were suspected from the beginning.

This does not violate the Fourth Amendment standard of reasonableness:

State of

Washington v. Brooks,

718 P. 2d 837 (Wash. App. 1986). Another Fourth

Amendment right was not violated where a student habitually kept drug

paraphernalia in his coat, was searched and was found to have drug material.

The tipster in this case had previously correctly advised of other drug users:

Martens v. District No. 220 Bd. of Education,

620 F.'.Supp. 29 (D.C. Ill. 1985). It was

likewise found appropriate to suspend a high school pupil who admitted

possessing marijuana, and drug equipment, where the suspension had been

authorized by local authorities: Brewer v. Austin independent School Dist.,

779 F.

2d 260 (1985). Where an assistant principal had reasonable grounds for thinking

that a student locker contained alcohol and the search revealed marijuana, it was

held that the search did not violate the studnt's rights under the Fourth

Amendment: State of West Virginia v. Joseph T.,

336

S.E.

2d 728 (W. Ya. 1985).

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Constitutional Issues

?

Reading 1.! - 3

The use of heroin by students of the high school premises bears a reasonable

relation to, and may endanger, the health, safety and morals of other students, but

did not justify suspension in a case where the statute did not allow this:

Howard v.

Clark,

299 N.Y. S. 2d 65 (1969).

Since a school stands

in loco parentis,

in matters of discipline it has the right to

search a student's locker, after the student has been identified as a seller of

methedrine pills. When cigarettes made of marijuana and a plastic bag of

marijuana were found in the locker, they could be used as evidence for

disciplinary purposes:

Re Donaldson,

75 Cal. Rptr. 220 (Cal. App. 1969).

School board's expulsion of a student for possession of pills containing caffeine

and ephedrine was not arbitrary, unreasonable, capricious or oppressive, since

the student intended to give her classmates the pills. The possibility of some

students suffering allergic reaction existed. Also, the distribution of any sort of

pills in schools would directly contribute to the creation of a drug-oriented

atmosphere, or could lead to psychological dependence on the part of some

students: Wilson v. Collinsville Community Unit School Dist. No. 10,

451 N.E. 2d

939 (1983).

(b) On Other Grounds

Where a student deliberately carried a switchblade in school, but the notice of

hearing was defective, it was held that this defective notice was irrelevant, given

the student's certain carrying of a deadly weapon in school, and the certainty of

the same result (expulsion) if a fuller hearing had taken place:

McClain v.

La

f ayette

County Bd. of Education,

687 F. 2d 121 (1982).

However, a student making vulgar gestures towards a teacher after school,

and away from school, could not properly be suspended, for such action would be

contrary to his constitutional right of free speech:

Klein v. Smith,

635 F. Supp. 1440

(D.C. Me. 1986).

The suspension of two students for defacing school property by painting three-

foot-high numerals on a brick wall was not unconstitutional:

Clinton v. Municipal

Separate School Dist.,

477 So. 2d 237 (Miss. 1985).

Simple defiance can be another ground for suspension or expulsion. In New

Zealand, two girls handed out leaflets before morning assembly, then during the

assembly walked out, followed by 30 other girls. Normally, at the assembly a hymn

was sung, and short prayers said. Any girl who wished to avoid the religious part

of the assembly only needed a letter from parents to be excused. Neither of the girls

nor their followers obtained or handed in such a letter. After questioning the two

girls, the principal suspended them, refusing thereafter to readmit them. The

school board met and agreed that the suspension should stand till the year end

when an expulsion would take place. This was done so as not to prejudice their

possible university admission. The board's reason for the expulsion was not the

girls' refusal to take part in the religious process, but for openly defying the

authority of the principal. The New Zealand Court of Appeal concluded that since

section 63 of the Education Act authorized the governing body of the secondary

schools to permit religious observances during assemblies, and section 61 enabled

boards to require attendance, as long as an exemption would be given on parental

request, the

girls'

open defiance of the authority of the principal entitled the school

to suspend and/or expel them. No board is obliged to expel immediately:

Rich v.

Christchurch Girls' High School Bd. of Governors,

[1974] 1 N.Z.L.R. 1 (C.A.).

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4—Reading 1.1 ?

W.H. Giles

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Where two students in South Africa were 'involved in political activities

I

affecting their training college and another school, contrary to the Internal

Securities Act of 1982, and were suspended and expelled without a proper hearing,

and contrary to natural justice (due process), the expulsions were set aside by the

Court in the Transvaal Provincial Division:

Mathale et al v. Secretary for

Education,

[198614 T.F.D. 427.

Where a student entered the dormitory of female students without permission

I

in breach of the college rules and later waived his claim for future disciplinary

action, he was found to be properly expelled. A private college generally may not

Arbitrarily or capriciously dismiss a student, but so long as the college acts in good

faith and on reasonable grounds, its expulsion or suspension decision will not be

subject to review in the courts. A college must have broad discretion in

determining the appropriate sanctions for violations of its policies, and there are

no constitutional hearings in respect to expulsion from a private institution under

the Fourteenth Amendment: Coveney v. President and Trustees of the College of

Holy Cross,

445 N.E. 2d 136, 383 Mass. 16 (1983). A three-day suspension of seventh

grade students for fighting will not be overturned unless it is unreasonable,

capricious or oppressive: Donaldson u.

Bd.

of Education for Danville School Dist.,

424 N.E. 2d 737(1981).

A three-day suspension of seventh grade students for fighting will not be

I

overturned unless it is unreasonable, capricious or oppressive:

Donaldson v. Bd.

of Education for Danville School Dist.,

424 N.E. 2d 737(1981).

Where a statute exists making public school pupils subject to suspension and

punishment if they injure school property, and making the parents liable for the

amount of such damages, the statute is not unconstitutional, nor does it deprive

parents of their property without due process of law:

Palmyra Bd. of Education v.

Hansen,

153 A. 2d 393 (N.J. 1959).

In

Re B. and W. et al.

(1986), 52 O.R. (2d)',

' 728 (H.C.), a female student

complained to the university of sexual harassment by a fellow student

B.

The High

Court found that the university had jurisdiction, over the students' conduct. It

must make decisions with regard to the admission of students, and their rights to

remain. The university was entitled to consider matters other than academic

achievement in deciding who to accept and who to keep. The conduct of a student,

on or off the campus, was a matter that the university was entitled to consider.

Dental students were dismissed for violating the honour code by cheating on

their exams. The students did not bother to make representation, and were

properly expelled. The expulsion was not a breach of their rights under the

Fourteenth Amendment:

Patterson v. Hunt,

682 S.W. 2d 508 (Tenn. App. 1984).

1

3.

Control of Freedom of Expression

(a) General

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In the U.S., the courts seem determined to inhibit school officials' attempts to

regulate the content of student expression. In most parts of the world, although

the schools do not overtly censor, they pressure, they discourage, they inhibit, and,

in extreme cases, they prohibit. Independent schools usually have provisions in

their contracts of admission which enable the schools to control, and if necessary,

to exclude children, if their speech or behaviour is unacceptable. Part of the

needed objective of schools is to regulate behaviour, because it is out of civility and

good manners that civilized behaviour grows. Even in the public schools, the

principal may properly regulate vulgar speech by the students. Thus, in

Bethel

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Constitutional Issues

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Reading 1.1 —5

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School Dist. No. 403 v. Fraser, 106

S. Ct.

3159 (1986),

the U.S. Supreme Court

emphasized that while the decision dealt with controlling the manner in which a

student expressed an idea, the First Amendment dealt with the issue of content.

While children have always had the right to free speech, they do not have the right

to make, on public occasions, tasteless and lewd statements describing, in effect,

the sexual act of a male in making a nomination speech. Mr. Justice Burger, of

the U.S. Supreme Court, felt it was inappropriate in public discourse to use vulgar

and offensive language, which may be insulting to one sex, and damaging to

young children: ibid.

The question of content in a monthly student newspaper came up in

Kuhimeir

v.

Hazelwood School Dist., 795

F. 2d

1368 (1986),

a case in the Eighth U.S Circuit

Court of Appeals. It involved the censorship of two student articles, one about

three pregnant girls, and the other about the impact of divorce on students. The

principal censored the articles on the pregnant girls because he thought that the

girls could be identified despite the use of pseudonyms. The same reason was

given in the case of the girl whose parents had divorced. There was no discussion

with the staff of the student newspaper in advance, nor was there any attempt to

gain concurrence from the students; the stories were simply deleted. The court

concluded that, if the newspaper functions as a forum for student expression, then

an article can be censored only if the censorship is necessary to avoid substantial

interference with schoolwork or discipline or the rights of others—this being the

standard established by the Supreme Court in

Tinker v. Des Moines Independent

Community School Dist., 89 S.

Ct.

733 (1969).

The court felt that the newspaper was

both an open forum for student opinion and a part of the school curriculum. It was

the opinion of the court that the articles did not invade the privacy of the parents.

Obviously, much depends upon the society. It is submitted that such articles would

constitute an invasion of privacy in Canada. While the two teen-age girls

consented to the interview, did they have a real understanding of how the articles

could hurt them? They were children, and, in this writer's perspective, it was

almost immoral to pretend that they were adults, and to impose adult standards.

The interesting aspect of this decision, apart from the second-guessing by

observers like the writer, is that it clearly gives the school authorities greater

control over student publications if those publications do not permit student

opinions and are merely part of the curriculum. From the writer's point of view,

this decision is bad for children. A standard of consultation that involved the

divorced parents of the children, and the pregnant girls, should have been

imposed. This would have provided an important learning experience to the young

writers, who might thus have learned to be sensitive to the best interests of others.

If all of those whose privacy was being invaded had understood the consequences,

and had agreed to the publication, then the principal should have withdrawn his

objections. He did not know what the response of the "injured" parties would be,

and did not take the trouble to find out. In review, he was wrong not to do so. He

decided one way. The judges were equally ignorant of these important facts, and

they decided another way. In so doing, they encouraged the belief of the writer and

of the student editor, that it may be quite appropriate to destroy or further injure

the lives of others who are already injured. The principle of the right of the press,

for its own benefit, to injure others, is not an attractive one. The case has nothing

to do with freedom of the press. It has everything to do with making schools places

of caring, of sensitivity and of decency.

Kuhlmeir v. Hazelwood School Dist.,

supra,

should be of concern to educators and to jurists alike.

The right of freedom of speech does not extend to writing and distributing

copies of newspapers which "contained four letter words, filthy references, abusive

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6—Reading 1.1

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W.H. Giles

and disgusting language and nihilistic propaganda":

Schwartz v. Schuker,

298 F.

Supp. 238 (D.C. N.Y. 1969).

(b) Student Dress

While in the U.K. and, elsewhere in the Commonwealth student dress is seen as

part of the disciplinary process, in U.S. state schools that can no longer. be

viewed

as being the case. Whereas in the U.K., New Zealand and Australia, uniforms are

normal in the state system as a means of eliminating class and economic

differences, in the U.S., there is less concern with the issue, and students may

wear what they wish, even if, in many cases, the

,

dress is seen as immodest and

offensive to good taste and common decency insofar as their elders are concerned.

In general, suspension of a student for not shaving, or for unconventional hair

styles is unconstitutional unless positive proof can be shown that such practices

are disruptive to the educational process, unsanitary or dangerous:

Dawson v.

Hillsborough County, Fla.,

322 F. Supp. 286 (F.C. Fla. 1971), affd 445 F. 2d 308

(1971).

If the doctrines set out in the

Dawson

case were applied, it is doubtful whether

a school could, in the absence of sexual or ordinary assault, prohibit the total

nudity of students. Proof that such a practice, is "disruptive, unsanitary or

dangerous" would be difficult to obtain without the expenditure of vast, sums of

money on sociological research.

Not all U.S. cases agree with the

Dawson

precedent. In an Arkansas case, the

court stated that school officials should have broad discretion in running the

schools and regulating student life. The university or school may impose

reasonable restrictions on dress, thereby reducing the student's normal freedom

to govern personal appearance:

Wallace v. Ford,

346 F. Supp. 156 (D.C. Ark. 1.972).

Student dress which is lewd, or deliberately draws attention to the student,

causing him to be a disruptive influence is no di#erent than verbal rudeness, and

may be controlled by the school: Ferrell v. Dallas Independent School Dist.,

261 F.

Supp. 545 (D.C. Tex. 1966) afFd 392 F. 2d 697 (1968)

(c) Insignia and Buttons

The U.S. courts have generally taken the position that the wearing of protest

insignia is legal, if not done in a manner that is disruptive to classroom discipline.

In one case, the right to wear arm bands was equated with the right to free speech,

which is protected under the First Amendment:

Tinker v. Des Moines

Independent Community School Dist.,

89 S. Ct. 733 (1969).

If buttons of a symbolic character can be worn without creating problems, that

is acceptable:

Burnside v. Byars,

363 F. 2d 744 (1966); however, if such buttons

produce disobedience, disrupt classroom procedures, and disturb other children

who want nothing to do with them, that is unacceptable:

Blackwell v. Issaquena,

363 F. 2d 749

(Miss.

1966). If there is evidence that the wearing of insignia would

provoke disorder, then it may be prohibited:

Guzick v. Drebus,

431 F. 2d 594 ( 1970).

This would include any symbols that could

\ support racism:

Smith v. St.

Tammany,

316 F. Supp. 1174 (D.C. La. 1970).

4. Freedom of Religion

In the United States, public schools may permit the release of students during

school hours for attendance at religious classes taught by religious teachers, but

not on the school premises:

Lanner v. Wimmer

662 F. 2d 1349 (1981).

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Constitutional Issues

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Reading 1.1 - 7

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Where an Alabama statute authorized a daily period of silence in public

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schools for meditation or voluntary prayer, this was held to be an endorsement of

religion and therefore in violation of the First Amendment:

Wallace v.

Jaffree,

105

S. Ct. 2479 (1985). Similarly, a West Virginia law provided the public schools with a

brief time at the beginning of each school day for any students desiring to exercise

their right to private meditation and prayer was found to be in violation of the

establishment clause of the First Amendment:

Walter v. West Virginia Bd. of

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Education,

610 F. Supp. 1169 (D.C. W. Va. 1985).

Arkansas statutes forbidding the teaching of evolution in public schools and in

colleges and universities supported in whole or in part by public funds are

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contrary to the freedom of religion mandate of the First Amendment:

Epperson v.

State of Arkansas,

393 U.S. 97 (1969). The provision of one minute of silence at the

discretion of the student before opening exercises each day violated the

establishment clause of the First Amendment, since the silence lacked secular

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purpose:

May v. Cooperman,

780 F. 2d 240 (1985).

Bantu children who, because they were Jehovah's Witnesses, refused to

participate in prayers and hymn-singing at the school as being contrary to their

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religion, were expelled from a school in South Africa. It was held that freedom of

religion, freedom of worship, and freedom of conscience were enshrined in the

common law. While such freedoms might be diminished or enlarged by

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Parliament, it had not legislated such changes. The children were permitted to re-

attend school without participating in religious ceremonies:

Simonlanga v.

Masinga,

[1976] 2 W.L.D. 733.

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5. Equality Rights and Discrimination

One of the objects of social concern in our day is the attempt to remedy past

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discrimination against minorities, such as black or female workers, by legislating

provisions which may now seem unfair to white male workers.

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The questions which arise may be posed as follows:

1. Why were the minority preferences established?

2. Who benefited from them?

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3. Who suffered from the reverse discrimination?

In

Wygant v. Jackson Bd. of Education,

54 L.W. 4479 (U.S. C.A. 1986), the court

was asked to examine the legality of a 1972 collective bargaining agreement that

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exempted black teachers from layoff provisions. White teachers who were laid off

had sued, claiming that they were protected by the equal protection clause of the

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Fourteenth Amendment. The court concluded that no societal discrimination

alone was insufficient to justify a racial classification. Rather, the court had

insisted upon some showing of prior discrimination by the government unit

involved before allowing limited use of racial classifications in order to remedy

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such discrimination.

In another case, Local 28 of the Sheet Metal Workers' mt. Assn. v. Equal

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Employment Opportunity Comm., 54 L.W. 4984 (1986),

the Supreme Court

concluded that where the racism had been "egregious" and "contentious", it had to

be rectified and the minority membership increased to 29%. Although this action

involved a trade union, the issue of discrimination is equally applicable to schools.

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Similarly, in

Local 93, International Association of Firefighters AFL, CIO v. City

of Cleveland,

106 S. Ct. 3063 (1986), the Supreme Court held that a consent decree

in a lower court providing that half the promotions be reserved for minority

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firefighters, and that some ten firefighters should be promoted to captain,

battalion chief, or assistant chief forthwith, could bç upheld.

Pursuant to legislation concerned with equal opportunity between the sexes,

the appointment of a female who was deputy head of a school to the headship was

cancelled. The Director-General of Education in New South Wales, following his

own interpretation of the equal opportunity rule, had arbitrarily decided that

appointments to the role of principal would be decided on the basis of seniority.

When the matter was submitted to the court to determine whether the

appointment should be voided, the court held that the appointment was valid:

Anderson v. Director-General of Education,

[1978] 2 N.S.W.L.R. 423 (Sup. Ct.). On

similar facts see

Buchan v. Swan,

[1979]1 N.S.W.L.R. 19 (Sup. Ct.), where a male

appointment superseded the appointment of a female head because the prior equal

opportunity legislation had been published before the appointments were sought

and made.

While this last case is Australian, the principles in the legislation are similar

to those in the U.S. Constitution and the Canadian Charter of Rights.

In some cases, schools have prohibited students who are members of secret

societies from participating in athletics, literary clubs and music organizations,

and been upheld in doing so:

Wayland v. Bd. of School Directors,

86 P. 642 (Wash.

1906);

Wilson v. Bd. of Education of Chicago,

84 N.E. 697 (Ill. 1908). Expulsion was

found to be acceptable for breach of a prohibition of fraternity memberships:

Antell

v. Stokes

191 N.E. 407 (Mass. 1934);

Burkitt v. School Dist. No. 1,

246 P. 2d 566 (Ore.

1952). Students were asked to sign pledge cards that they would refuse to join

secret societies, in default of which their extracurricular privileges would be

prohibited. The right to impose such a requirement was upheld in

Coggins v. Bd.

of Education in Durham,

28 S.E. 2d 527 (N.C.

1944);:Wilson v. Abilene Independent

School Dist.,

190 S.W. 2d 406 (Tex. 1945).

In the United States, the incidence of eai1y marriages has increased

dramatically. While a school board may not compel school attendance of married

students, it may also not prohibit their attendance:

State v. Priest,

27 So. 2d 173 (La.

1946); State in the interest of Goodwin, Re,

39 So. 2d 731 (La. 1949);

McLeod v. State,

122 So. 737 (Miss. 1929);

Nutt v. Bd. of Education of Goodland,

278 P. 1065 (Kan.

1929). However, a limited temporary suspension, or a suspension for the

remainder of the school term for marrying have both been found to be lawful:

Alvin Independent Dist. v. Cooper,

404 S.W. 2d 76 (Tex. Civ. App. 1966);

State of

Tennessee v. Marion County Bd. of Education

302 S.W. 2d 57 (Tenn. 1957).

Similarly, a married girl may be suspended during :pregnancy:

State ex rel Idle v.

Chamberlain,

39175 N.E. 2d 539 (Ohio 1961). In another action, where unwed

mothers sought to return to school, their exclusion was found to be illegal:

Perry v.

Grenada Municipal Separate School Dist.,

300 F. Supp. 748 (D.C. Mass. 1969). In a

contrary view, where an unmarried girl became pregnant, her attendance in

regular classes was ended, but the court said she had the right to return:

Ordway

v.

Hargraves,

323 F. Supp. 1155 (D.C. Mass. 1971); A board can legally prohibit

participation of married students in extracurricular roles:

Kissick v. Garland

Independent School Dist.,

330 S.W. 2d 708 (Tex. Civ:App. 1959);

State ex rel Baker

v. Stevenson,

189 N.E. (2d) 181 (Ohio 1962);

Waterloo *Independent School Dist. Bd of

Education v. Green,

147 N.W. 2d 854 (Iowa 1967).

One of the questions that can be raised regarding sections 15 and 24 of the

Canadian Charter of Rights and Freedoms and the United States Constitution is

whether all children are able to obtain an education appropriate for their own

particular needs. In Mills v. Dist. of Columbia Rd. o/'Education,

348 F. Supp. 866

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(D.C.

D.C. 1972), it was held that constitutionally no child could be effectively

excluded from public education, and that what funds there were should be

expended equitably in such a way that the child would obtain an education

compatible with his needs and his ability to benefit from it.

In Canada, the Charter addresses discrimination on the grounds of mental or

physical disability. This provision assures the funding of education for disabled

children. It does not, however, assure the funding of suitable education for gifted

or exceptional children.

Also, the meaning of the age provision of the Charter is difficult to determine.

It is an integral part of our law that parents speak for minor children, so it would

appear that only parents can take appropriate action if a child is suffering

discrimination under this head of the Charter. To date, the Charter has been

concerned with procedural rather than substantive provisions. The fact that in

section 15 age is set out among the criteria is a clear indication that schools will

eventually be involved in actions on the age discrimination issue.

6. Public Funding of Private Schools

Where legislation exists by which a school district provides free transportation to

schools a student residing in the area will be entitled to free transportation, even if

he goes to a private school:

Unionville v. Rotteveel,

487 A. 2d 109 (Pa. 1985). On the

other hand, a policy statement favouring the loaning of text books to private

schools does not overcome the prohibition that no public funds can go to any

sectarian institution

Matter of Certification, Re,

372 N.W. 2d 113 (S.D. 1985).

Similarly, a programme under which New York City received federal funds under

The Elementary and Secondary Education Act, and used these funds to pay the

salaries of public school employees who taught in parochial schools, violated the

establishment clause of the Constitution.

Shared time or dual enrolment is an arrangement between public and private

schools in which facilities are shared usually in a public school. The school board

is the determiner of whether or not the academic credit will be available to the

student from the private school. The provision of textbooks to school children

throughout the state in both public and private schools was held to be legal:

Cochran v. Louisiana State Bd. of Education,

281 U.S. 370, 50 S. Ct. 335 (1930).

Likewise, the loaning of textbooks to parochial school students free of charge was

not unconstitutional: Central School Dist. No. 1 Bd. of Education u. Allen

392 U.S.

236(1968).

Loans to private schools have been held to be permissible under the

establishment clause of the First Amendment. Also, the provision of diagnostic

speech and hearing tests, bus transportation, school lunches and other public

health services falls within the class of general welfare services to all children,

whether or not they attend church-related schools:

Meek v. Pittinger,

421 U.S. 349

(1975); Wolman v. Walter,

433 U.S. 229 (1977);

Everson v. Bd. of Education of Ewing

Twp., 330 U.S. 1 (1947). But the loaning of materials and equipment that could be

used in religious instruction is unacceptable:

Meek v. Pittinger, supra.

In South

Dakota, textbook loans to private schools are unconstitutional, because there are

state statutes prohibiting aid to sectarian schools and institutions. If such state

prohibitions did not exist, the loans would be valid:

Elbe u. Yankton Independent

School Dist.,

640 F. Supp. 1234 (D.C. S.D.,

1986).

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7.

Search and Seizure

In R.

v. G. (J.M.)

(1987), 56 O.R. 2d 705, the Ontario Court of Appeal considered the

right of a public school principal to search a 14-year-old child in grade seven who,

he had reasonable and probable cause to believe, was carrying drugs. Upon

examination, the student had been found to be in possession of three marijuana

cigarette butts. The student swallowed another. He was not told of his rights, if

any, when it was demanded that he remove his socks and shoes. The principal

who found the three cigarettes, called the police. They arrested the boy on a charge

of being in possession of a narcotic, giving him at that time the usual caution, and

informing him of his Charter rights. Section 8 of the Charter states that everyone

has the right to be secure against unreasonable search or seizure. Grange J.A.

speaking for the court, approved the U.S. case of

New Jersey v. T.L.O.,

105 S. Ct.

733 at 743-4 (1985) and quoted with approval (56 O.R. (2d) 705 at 709 and 710). White

J.'s comments in that case that:

the legality of a search of a student should depend simply on the reasonableness,

under all the circumstances, of the search. Determining the reasonableness of any

search involves a twofold inquiry: first, one must consider "whether the . . . action

was justified at its inception" . . . second, one must determine whether the search

as actually conducted "was reasonably related in scope to the circumstances which

justifies the interference in the first place" . . . when there are reasonable grounds

for suspecting that the search will turn up evidence that the student has violated or is

violating either the law or the rules of the school. S,uch a search will be permissible

in its scope when the measures adopted are reasonably related to the objective of

search and not excessively intrusive in light of the, age and sex of the student and

the nature of the infraction . . . By focussing attention on the question of

reasonableness, the standard will spare teachers and public administrators the

necessity of schooling themselves in the niceties of probable cause, and permit them

to regulate their conduct according to the dictates of reason and common sense.

A principal has a discretion to deal with breaches of discipline on his own, and

has the right to do that rather than call in either the parents or the police. He

cannot exercise that discretion until he knows the nature and extent of the offence.

Grange J.A. continued

(ibid.

at 710):

Although I am prepared to presume that the Charter applies to the relationship

between principal and student, that relationship is not remotely like that between a

policeman and a citizen. First, the principal has a substantial interest not only in

the welfare of the other students, but in the accused student as well. Secondly,

society as a whole has an interest in the maintenance of a proper educational

environment, which clearly involves being able to enforce school discipline

efficiently and effectively. It is often neither feasible nor desirable that the

principal should require prior authorization before searching his or her student

and seizing contraband.

A detention as defined in the Charter has little to do with a school.

He [the student] was subject to the discipline of the school and required by the nature

of his attendance to undergo any reasonable ;disciplinary or investigative

procedure. The search here was but an extension of normal discipline such as, for

example, the requirement to stay after school or to do extra assignments or the

denial of privileges.

(Ibid.

at 712). ?

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Here the principal was not the agent of the police. There was no breach of the

Charter under section 8 or section 10 (b).

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8. Issues Involving Teachers

In the U.S., loyalty requirements which were once imposed with absolute

impunity on teachers, now tend to be rejected because they violate the First, Fifth

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and Fourteenth Amendments to the Constitution, and the right to academic

freedom: Keyishian v. Bd. of the University

of

the State of New York, 385 U.S. 589

(1967).

The right not to answer the question of whether or not one is a communist

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is properly protected by the Fifth Amendment:

Slochower v. Bd.

of Higher

Education

of

New York (City), 350 U.S. 551 (1956).

In Kane v. University of B.C. Bd. of Governors, [1980] S.C.R. 1105,

a number of

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propositions were delineated about discipline proceedings against a professor at

the University of British Columbia. The Supreme Court of Canada stated (at

1113)

that:

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i. A high standard of justice is required when the right to continue at'one's

profession or employment is at stake; and

2. The tribunal must listen fairly to both sides, giving the parties to the

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controversy a fair opportunity "for correcting or contradicting any relevant

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statement prejudicial to their views."

9. Relevant Sections of Constitutional Documents

(a) Canadian Charter

of

Rights and Freedoms

Guarantee

of

Rights and Freedoms

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.

Fundamental Freedoms

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.

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Mobility Rights

6.

(2) Every citizen of Canada and every person who has the status of a

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permanent resident of Canada has the right

(b) to pursue the gaining of a livelihood in any province.

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Legal Rights

7.

Everyone has the right to life, liberty and security of the person and the

right not to be deprived thereof except in accordance with the principles of

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fundamental justice.

8.

Everyone has the right to be secure against unreasonable search or seizure.

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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;

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12 —Reading 1.1

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W.H. Giles

(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.

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.

Equality Rights

15. (1) 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.

Minority Language Educational Rights

23. (1) Citizens of Canada

(a)

whose first language learned and still understood is that of the English or

French linguistic minority population of the province in which they reside,

or

(b)

who have received their primary school instruction in Canada in English

or French and reside in a province where the language in which they

received that instruction is the language of the English or French linguistic

minority population of the province,

have the right to have their children receive primary and secondary school

instruction in that language in that province.

(2)

Citizens of Canada of whom any child has received or is receiving primary

or secondary school instruction in English' or French in Canada, have the

right to have all their children receive primary and secondary school

instruction in the same language.

(3)

The right of citizens of Canada under subsections (1) and (2) to have their

children receive primary and secondary school instruction in the language

of the English or French linguistic minority population of a province

(a)

applies wherever in the province the number of children of citizens who

have such a right is sufficient to warrant the provision to them out of public

funds of minority language instruction; and

(b)

includes, where the number of those children so warrants, the right to have

them receive that instruction in minority language educational facilities

provided out of public funds.

Enforcement

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have

been infringed or denied may apply to a court of competent jurisdiction to

obtain such remedy as the court considers appropriate and just in the

circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that

evidence was obtained in a manner that infringed or denied any rights or

freedoms guaranteed by this Charter, the evidence shall be excluded if it is

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established that, having regard to all the circumstances, the admission of it

in the proceedings would bring the administration of justice into disrepute.

General

25. The guarantee in this Charter of certain rights and freedoms shall not be

construed so as to abrogate or derogate from any aboriginal, treaty or other

rights or freedoms that pertain to the aboriginal peoples of Canada

including

(a)

any rights or freedoms that have been recognized by the Royal Proclamation

of October 7, 1763; and

(b)

any rights or freedoms that may be acquired by the aboriginal peoples of

Canada by way of land claims settlement.

26. The guarantee in this Charter of certain rights and freedoms shall not be

construed as denying the existence of any other rights or freedoms that

exist in Canada.

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Citation

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34. This Part may be cited as the

(h) United States Constitution

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Article I

Section 8.

The Congress shall have Power to lay and collect Taxes, Duties, Imposts

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and Excises, to pay the Debts and provide for the common Defence and general

Welfare of the United States...

Section 10.

No state shall. .. pass any... law impairing the obligation of

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contracts.

Article Ill

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Section 1.

The judicial Power of the United States, shall be vested in one supreme

Court, and in such inferior Courts as the Congress may from time to time ordain

and establish. The Judges, both of the supreme and inferior Courts, shall hold

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their Offices during good Behavior, and shall, at stated Times, receive for their.

Services, a Compensation, which shall not be diminished during their

Continuance in Office.

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Section 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising

under this Constitution, the Laws of the United States...

In all Cases affecting Ambassadors, other public Ministers and Consuls, and

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those in which a State shall be Party, the Supreme Court shall have original

Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall

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27.

This Charter shall be interpreted in a manner consistent with the

preservation and enhancement of the multicultural heritage of Canadians.

28.

Notwithstanding anything in this Charter, the rights and freedoms

referred to in it are guaranteed equally to male and female persons.

29.

Nothing in this Charter abrogates or derogates from any rights or

privileges guaranteed by or under the Constitution of Canada, in respect of

denominational, separate or dissentient schools.

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14 —Reading 1.1 ?

W.H. Giles

have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and

under such Regulations as the Congress shall make.

Article

W

Section 1.

Full Faith and Credit shall be given in each State to the public Acts,

Records, and judicial Proceedings of every other State. And the Congress may by

general Laws prescribe the Manner in which such Acts, Records and Proceedings

shall be proved, and the Effect thereof.

Section 2.

The Citizens of each State shall be entitled to all Privileges and

Immunities of Citizens in the several States..

Article

V

The Congress, whenever two-thirds of both Houses shall deem it necessary, shall

propose Amendments to this Constitution, or on the Application of the

Legislatures of two-thirds of..the several States, shall call a Convention for

proposing Amendments, which, in either Case,

shall

be valid to all Intents and

Purposes, as part of this Constitution, when ratified by the Legislatures of three-

fourths of the several States or by Conventions in three-fourths thereof, as the one

or the other Mode of Ratification may be proposed by the Congress; Provided that

no Amendment which may be made prior to the Year One thousand eight

hundred and eight shall in any Manner affect the first and fourth Clauses in the

Ninth Section of the first Article; and that no State, without its Consent, shall be

deprived of its equal Suffrage in the Senate.

Article VI

This Constitution, and the Laws of the United States which shall be made in

Pursuance thereof; and all Treaties made, or which shall be made, under the

Authority of the United States, shall be the Supreme Law of the Land; and the

Judges in every State shall be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the

several State Legislatures, and all executive and judicial Officers, both of the

United States and of the several States, shall be bound by Oath or Affirmation, to

support this Constitution; but no religious Test shall ever be required as a

Qualification to any Office or public Trust under the United States.

Amendment 1 (1791)'

Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble, and to petition the

government for a redress of grievances.

Amendment 4(1791)

The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched, and the persons or things to

be seized.

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Amendment 5 (1791)

No person shall. . . be subject for the same offence to be twice put in jeopardy of life

or limb; nor shall be compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property, without due process of law; nor

shall private property be taken for public use without just compensation.

Amendment 6(1791)

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the crime shall

have been committed, which district shall have been previously ascertained by

law, and to be informed of the nature and cause of the accusation: to be confronted

with the witnesses against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of counsel for his defence.

Amendment 7(1791)

In Suits at common law, where the value in controversy shall exceed twenty

dollars, the right of trial by jury shall be preserved, and no fact tried by jury, shall

be otherwise re-examined in any Court of the United States, than according to the

rules of the common law.

Amendment 8(1791)

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.

Amendment 9 (1791)

The enumeration in the Constitution, of certain rights, shall not be construed to

deny or disparage others retained by the people.

Amendment 10(1791)

The powers not delegated to the United States by the Constitution, nor prohibited by

it to the States, are reserved to the States respectively, or to the people.

Amendment 11 (1798)

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The Judicial power of the United States shall not be construed to extend to any suit

in law or equity, commenced or prosecuted against one of the United States by

Citizens of another State, or by Citizens or Subjects of any Foreign State.

Amendment 13(1865)

Section 1.

Neither slavery nor involuntary servitude, except as a punishment for

crime whereof the party shall have been duly convicted, shall exist within the

United States, or any place subject to their jurisdiction.

Section 2.

Congress shall have power to' enforce this article by appropriate

legislation.

Amendment 14(1868)

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Section 1.

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the State wherein they

reside. No state shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any State deprive any

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person of life, liberty, or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.

Amendment

15(1870)

Section 1.

The right of citizens of the United States to vote shall not be denied or

abridged by the United States or by any State on account of race, color, or previous

condition of servitude.

Section 2.

The Congress shall have power to enforce this article by appropriate

legislation.

Amendment 16(1913)

The Congress shall have power to lay and collect taxes on incomes, from whatever

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source derived, without apportionment among the several States, and without

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regard to any census or enumeration.

Amendment 19(1920

Section 1.

The right of citizens of the United State's to vote shall not be denied or

abridged by the United States or by any State on account of sex.

Section 2.

Congress shall have power to enforce this article by appropriate

legislation.

Amendment 24(1964)

Section 1.

The right of citizens of the United States to vote in any primary or other

election for President or Vice President, for electors for President or Vice

President, or for Senator or Representative in Congress, shall not be denied or

abridged by the United States or any State by reason of failure to pay any poll tax or

other tax.

Section 2.

The Congress shall have power to enforce this article by appropriate

legislation.

Amendment 26(1971)

Section 1.

The right of citizens of the United States, who are eighteen years of age

or older, to vote shall not be denied or abridged by the United States or by any State

on account of age.

Section 2.

The Congress shall have power to enforce this article by appropriate

legislation.

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Reading 12 ?

R. v. M.H.?

Alberta Court of Queen's Bench, Judicial District of Edmonton, June 26, 1986,

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No. 8503-0478-S2

DECHENE, J. (orally): This has been a rather long and very interesting hearing,

and when I became aware of the complexity of the appeal and the probable length

of the argument, I informed counsel that I did not anticipate being able to write a

lengthy and well-considered judgment within a reasonable time. We therefore

proceeded on that understanding, that I would give an oral decision immediately

after the hearing.

I have listened carefully to the arguments of counsel. I do not pretend to have

read the numerous authorities cited to me, but I have heard counsel and I

certainly have read those excerpts from various decisions to which I was referred

and I believe I have a fairly good grasp of the problem.

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The Crown appeals the dismissal by Her Honour Judge Russell of a theft

charge against the respondent, a young offender, as defined by the Young

Offender's

[sic]

Act. The main argument stems from the learned trial judge's

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decision that the Canadian Charter of Rights and Freedoms applies to school

principals and school teachers and that the evidence of a school teacher was

inadmissible because of Section 56 of the Young Offender's

[sic]

Act. Other

grounds of appeal dealt with the, question as to whether, on the facts of this case,

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there had been a detention in the office of the principal, a detention within the

meaning of Section 10 of the Charter, and with the admissibility of the evidence of

that school principal and of three young accomplices.

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The facts of the case are really not in dispute and they are, I think, accurately

summarized in the memorandum of the appellant. On or about the 22nd of March,

1984, the respondent and accomplices opened a locked classroom door at Laurier

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Heights School in Edmonton. They went into the classroom, opened a filing cabinet

and removed cash from a purse belonging to Heather Field, Heather Field being a

teacher in that classroom.

The following day Miss Field addressed her class, of which the respondent was

a member, and advised them of the theft. She further advised that if the money

was returned, nothing further would be done. As a result of that the respondent

and at least two of the accomplices came forward and admitted the theft.

Sometime later this matter came to the attention of Mr. Powell, the principal at

Laurier Heights School. He spoke to all the individuals involved in his office. The

police were ultimately called and all the youths involved, including the

respondent, were charged. The youths were not advised by Mr. Powell of any right

to have an adult or a lawyer present while he spoke to them.

It is not, having regard to the conclusion which I have reached, necessary for

me to decide whether the Charter of Rights and Freedoms applies to educational

institutions such as the school in question in this action. If it were necessary to do

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Reprinted with permission from:

Dickinson, G.M. (1989). Criminal process in the

schools and young offenders law.

In A.W. Mackay,

Rights, freedoms, and the education

system in Canada

(pp. 395-397). Toronto: Edmond Montgomery.

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G.M. Dickinson

so, I would adopt the argument and the reasoningof Mr. Henkel and I would have

held that the Charter of Rights and Freedoms does not apply, having regard to the

provisions of the Constitution Act, the School Act and other authorities in

legislation. However, that is not necessary for my decision. The Young Offender's

[sic]

Act is the one which, in my view, governs this appeal. Section 56 of the Young

Offender's

[sic]

Act deals with the admissibility of evidence and says that:

(2) No oral or written statement given by a young person to a Peace Officer or other

person who is, in law, a person in authority is admissible against the young person

And I would hold here that the principal and the teacher are persons in authority

having regard to their dealings with a 13-year old student under their care. Such

evidence or such statement is not admissible unless:

(a)

The statement was voluntary.

Now, I would open a parenthesis here and say that the evidence, the transcript of

the evidence leads me to the conclusion that there was a voir dire entered into. It is

not clear whether there was a finding that under the ordinary rules of evidence

the statement was voluntary and there is no specific finding as to that.

But by subsection (b) it is not admissible unless:

(b)

the person to whom the statement was given has, before the statement

was made, clearly explained to the young person, in language appropri-

ate to his age and understanding, that...'

Firstly, he is under no obligation to give a statement. That

(ii) any statement given by him may be used as evidence in proceedings

against him,

(iii)

the young person has the right to consult another person in accordance

with paragraph (c), and

(iv)

any statement made by the young person is required to be made in the

presence of the person consulted, unless the young person desires

otherwise;

And in subsection (c) he is to be given a reasonable opportunity to consult with

parent, guardian or other persons.

In my view, there was a clear breach of that section in these proceedings.

There was no warning to the young person, there was no statement of his right to

consult counsel or another person or a guardian, and for that reason I think the

learned trial judge was right in finding the accused not guilty and not accepting

the evidence which had been tendered.

I therefore would find that if there was a detention by the principal, that he and

the teacher were persons in authority and that the statements made were not

shown to have been made voluntarily. I will therefore dismiss the appeal.

In the fall of 1986 the

Young Offenders Act

was amended to make it clear that an

adult chosen for purposes of consultation under section 56 is not a "person in

authority." The following provision has been added to section 56.

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I

Criminal Process in the Schools and Young Offenders Law

?

Reading 1.2 —3

I

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For the purpose of this section, an adult consulted pursuant to paragraph 56(2)(c)

shall, in the absence of evidence to the contrary, be deemed not to be a person in

authority.

"Parent" has also been redefined to include persons who have custody or control of

the young person.

Would this change in the

Young Offenders Act

have made any difference to the

outcome of R. v. M.H.?

Although findings that educators are "persons in authority" for the purposes of

confessions may not occur frequently, the

M.H.

case evidences the possibility of

such findings. In

The Queen u. AB.

(1986), 13 O.A.C. 68, the Ontario Court of

Appeal refused to treat parents as "persons in authority" for the purposes of

confessions made

by

their children to them. If educators derived their authority

solely through parental delegation, it would be reasonable to argue that educators

also ought not to be deemed "persons in authority" for such purposes. In the

J.M.G.

decision, however, the Ontario Court of Appeal clearly supported the idea

that principals' disciplinary authority is statute-based. This analysis would seem

to make it easier to rationalize holding them to be "persons in authority" for the

purpose of determining the admissibility of students' confessions.

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Reading 1.3

?

Equality Seekers Troubled by Affirmative Action Rulings

Co-Author of

Canadian Charter Equality Rights for Women: One Step Forward or

Two Steps Back

and Publisher of the Canadian Human Rights Reporter

Early court decisions interpreting section 15(2) of the Canadian Charter of Rights

and Freedoms send a warning to persons from historically disadvantaged groups.

The reason: interpretations of equality and affirmative action may become

badly confused if the early trends continue.

Section 15(2) of the Charter states that programs designed to overcome the

disadvantages of certain groups are not discriminatory, and do not violate the

equality guarantees in section 15(1). It is not clear yet, however, what programs or

laws will be protected by this provision.

Litigation on the subject of affirmative action will increase in Canada in the

1990s and it will be extremely important to clarifying our idea of equality.

Unfortunately, the early cases interpreting section 15(2) do not provide an

auspicious beginning.

There are two fundamental principles which must be embraced by the courts if

the Charter is to serve the needs of disadvantaged groups.

FIRST PRINCIPLE: Sections 15(1) and 15(2) are not contradictory

Sadly, in the first years of Charter litigation some courts have read these sections

as meaning different and opposing things. Section 15(1) has been read as

requiring the same treatment for all, while Section 15(2) allows different treatment

for the purpose of ameliorating disadvantage.

The Manitoba Court of Queen's Bench interpreted Section 15 in this split

fashion in Manitoba Rice Farmers Association v. Manitoba Human Rights

Commission

1

and the Saskatchewan Unified Family Court also viewed Section 15

this way in

Friesen v. Gregory.

2

For those who work in the equality rights

movement it is clear that interpreting equality as "same treatment", or "similar

treatment for those similarly situated", not only does not deliver equality, but

renders the problems of inequality invisible.

Here are some examples of the effect of this model of equality from women's

experience.3

Equal pay laws in most jurisdictions in Canada still require only that men and

women be paid the same when they perform the same work. These laws require,

then, that women, the consistently lower paid group, must do the same work as

men to obtain the same pay. But women and men in Canada, by and large, do not

do the same work. Most women low paid female enclaves. It is little surprise; laws

conceived in this way, based on the same treatment model of equality, have done

nothing to close the gap between men's and women's earnings.

Defining equality as providing women with the same treatment as similarly

situated men obscures the real inequality here. It ignores the historical sex

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Reprinted from:

Day, S. (January 1990). Equality seekers troubled by affirmative action

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ruling.

Canadian Human Rights Advocate, 6(1), 1-4.

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2— Reading 1.3 ?

S. Day

segregation of the workforce, and the fact that women are paid less for their work

because they are women. Pay laws so conceived espouse equality, but actually

reinforce inequality.

No Male/Female Comparisons are Possible in Some Situations

The same treatment model of equality provides women with no help when they

are discriminated against because of experiences for which there is no male

analogue. On the one hand, it has been argued, sometimes successfully, that men

and women are so much the same that special protections for women—such as

regulations prohibiting male guards from performing body searches on female

prisoners 4 and special protections for young girls against rape

5 —should be struck

down.

In these cases plaintiffs argued that men and women are so much the same

that no special protections for women should be allowed. This argument ignores

the fact that women are overwhelmingly the victims of sexual assault and sexual

intimidation and men are overwhelmingly the perpetrators of these acts.

On the other hand, in other cases, lawyers have argued and courts have found

that men and women are so very different that there is no equality issue involved.

For example, the Ontario Court of Appeal ruled in

R. u. Morgenthaler 6

that

abortion was not an equality issue because women could not show that abortion

laws are more burdensome to them than they would be to men if men could get

pregnant. Therefore, as long as men cannot get pregnant, abortion is not an

equality issue.

The failure of the same treatment model to address the inequality which

women face makes it clear that the problem between men and women is not that

they are the same or that they are different. The problem is that men are dominant

and women are subordinate. Equality, as Catherine MacKinnon has shown us, is

not a question of sameness and difference, but a question of dominance and

subordination between groups.7

Nor is the same treatment model a reliable definition of equality for persons of

colour.

For example, the idea of multiculturalism contains within it the same

treatment model; it asserts that treating all races and ethnic groups the same

achieves equality.

A tolerant pluralism is something to aspire to, but it presumes equality

between racial and ethnic groups, and that can only be achieved if the inequality of

some groups is first acknowledged and then eliminated.

hen the concept of multiculturalism is indistinguishable from the same

treatment model of equality, it can obscure the fact that in Canada one race and a

few ethnic groups are dominant, and all others are subordinate.

For example, in some English majority parts of Canada today, English is a

second language for a high percentage of school children. When society provides

the same education for all children or skimps on what it provides to immigrant

children by way of extra and the different help, it assures that the dominant

group's will is dominant.

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I

Equality Seekers Troubled by Affirmative Action Rulings

?

Reading 1.3 —3

I

Likewise, offering all children the same white education—which does not

acknowledge the history of the oppression of aboriginal peoples or indigenous

blacks in Canada—cannot be said to provide equality; in fact, it is simply racist.

The idea of equality must encompass the provision of whatever is necessary to

create real equality in these examples, extra language and other help for

immigrant children, and recognition in school curricula of the racist oppression

experienced by Canada's aboriginal peoples and other groups.

If equality is to be achieved, it must be recognized that sometimes equality

requires the same treatment of different groups and sometimes it requires

different treatment of different groups. Sometimes same treatment is the cause of

discrimination, and sometimes it is the appropriate remedy. It cannot, however,

be accepted as the model of equality itself.

In summary then, the interpretation of equality which all disadvantaged groups

require is one which:

recognizes that equality is a question of dominance and subordination between

groups,

• makes real conditions of inequality visible, and

• ensures that those conditions can be addressed effectively.

But, when sections

15(1)

and

15(2)

of the Charter are read by courts and lawyers

as contradictory, the assumption is that the norm of equality is treating everyone

the same, though special treatment may be justified under certain circumstances.

Because equality seekers cannot accept that equality means simply treating

dominant and subordinate groups in the same way—or simply treating the

disadvantaged and the advantaged alike—they cannot treat this as a cogent

interpretation of section 15 as a whole.

Rather, sections

15(1)

and

15(2)

must be seen to be complementary, with

15(2)

making it clear that the equality guaranteed in

15(1)

is not merely, or even

primarily, a matter of providing same treatment, but rather a matter of

addressing and overcoming the disadvantages of historically oppressed and

excluded groups.

Because this interpretation can better address the reality of inequality, it is the

one that best fits the purpose of section

15.

Second principle: section

15(2)

cannot be used to protect laws or programs which

are, in fact, discriminatory.

I

This may sound odd. How could section

15(2),

which specifically sanctions laws

and programs designed to

overcome

discrimination, be used to justify it?

Unfortunately, it is a legitimate fear.

I

So far the courts' interpretations and applications of section

15(2)

are very

troubling. For example, in a number of challenges to the

Young Offenders' Act,

courts have dealt with sections which provide that young offenders cannot earn

I

remission time on their sentences and cannot have jury trials, but can have the

disposition of their cases reviewed at anytime and can be transferred to adult

court.

8

Some courts found that while these provisions violated the age protections

of section

15(1),

they were "saved" by section

15(2)

because the

Young Offenders'

I ?

Act

as a whole is a program designed to ameliorate the disadvantages of young

people;

F1

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4—Reading. 1.3 ?

S. Day

Also, the B.C. Supreme Court in

Rebic u. The Queen

9

provided similar

analysis. At issue here were the sections of the

Criminal Code

which require

judges to order the indefinite incarceration of persons who are found not guilty by

reason of insanity.

The result of a finding of not guilty by reason of insanity is mandatory. There is

no sentencing hearing, as there is for those who are found guilty. Once the finding

is made, the judge is not allowed to consider whether the person is still insane, or

whether incarceration is necessary or appropriated Nor is the judge allowed to put

any time limit on the incarceration.

These sections of the

Criminal Code

have been the object of criticism for many

years.

The Law Reform Commission of Canada, the Obstacles Committee and the

Parliamentary Committee on Equality have all recommended major changes.

The sections are notoriously archaic and discriminatory in their treatment of

persons with mental disabilities.

The B.C. Supreme Court, however, ruled that the challenged provisions of the

Criminal Code

did not violate section 15 of the Charter because section 15(2)

applied and one of the objects of these

Criminal Code

provisions is "the

amelioration of conditions of individuals discriminated against because of mental

disability."

10

An Ontario Board of Inquiry recently handed down a similarly troubling

decision. In this case, Roberts v. Ontario (Ministry of Health), 11

a 73 year old man

challenged the terms of Ontario's Assistive Devices Program. This program

provides aids and devices to persons with disabilities.

However, the program is age-limited; only those 22 and under are currently

eligible. Mr. Roberts, who has chorioretinopathy, applied for funding for a device

which would magnify so he could read. The Ministry of Health rejected Roberts'

application, saying he was too old.

The Board of Inquiry ruled that the program is an affirmative action program

and that, therefore, the discrimination in the program on the basis of age was not

a violation of the Ontario Human Rights Code.

Two lines of reasoning emerge from these decisions, both very disturbing.

The first line of reasoning is that any program set up for one group only, no

matter how discriminatory in its effects or results for the group, must be an

affirmative action program or a program sanctioned by 15(2).

According to this reasoning, because the

Young Offenders' Act

and the "not

guilty by reason of insanity" provisions of the

Criminal Code

address one specific

group, treat them differently, and are considered well intentioned, they are

affirmative action programs.

Applying this analysis, sheltered workshops, in which people with disabilities

can earn as little as 50 dollars a month, with no coverage under Unemployment

Insurance, Canada Pension Plan, or Workers' Compensation, may also be

deemed to be affirmative action programs, protected by section 15(2).

This would be an absurd result, but the reasoning is the same as that in

Rebic.

In these cases, the confusion between what is discrimination and what is

affirmative action becomes complete.

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I

Equality Seekers Troubled by Affirmative Action Rulings

?

Reading 1.3 —5

1

I ?

The second line of reasoning is that if there is an ameliorative program,

any discrimination within it is not discrimination.

Thus, though the courts say that provisions in the

Young Offenders' Act

would

I ?

otherwise be considered discriminatory, because the

Act

as a whole is designed to

be ameliorative, those discriminatory provisions are acceptable.

I

The Board of Inquiry in

Roberts

says the same thing. In a program designed

for disabled people, discrimination against some disabled people on the basis of

another characteristic is tolerable.

According to this logic then, a program designed to ameliorate the

I

disadvantages of black people could discriminate against black women, or a

program like the federal Language Training Program could discriminate against

immigrant women, without running afoul of the law.

The

problem at the heart of this faulty analysis is the adherence to the same

treatment model of equality. This analysis assumes that equality means treating

all groups the same, and any departure from that, any different or special

I

treatment, must be affirmative action protected by section 15(2). Having gotten this

far, courts and the

Roberts

Board of Inquiry throw up their hands: once "special

treatment" is involved, and the same treatment model is clearly inapplicable,

I

anything goes.

But some different treatment is just plain old discrimination, and must be

recognized as such. It is only by examining the

effects

of a law or program that

I

one can determine whether it is discrimination or affirmative action, not by

whether the same or different treatment is afforded.

Programs like sheltered workshops should not be assumed to be ameliorative,

I

rather than discriminatory, just because they involve different treatment of one

group and are well-intended. Their. effects must be studied.

I

Nor can it be accepted that in the name of affirmative action, discrimination

against some members of a target group can be tolerated. In some circumstances,

there may be a clear equality-based rationale for addressing a program to one part

of a target group. There may be ample justification, for example, for targeting

I

programs

to poor women.

However, courts and Boards of Inquiry must examine every case in detail and

consider carefully whether equality is served by any distinctions which are made

I

within a program. They cannot simply throw up their hands once they have

decided they are dealing with an ameliorative measure.

The early interpreters of section 15(2) have not been working within a developed

I ?

and coherent interpretation of section 15 as a whole. Nor have they rejected the

same treatment model of equality.

I

If, however, that model is rejected, as it has been by the Supreme Court in

Andrews v. the Law Society of British Columbia,

12

and if instead, courts and

Boards of Inquiry accept that equality requires whatever treatment is necessary to

I

produce an equal result, then the difference between an affirmative action

program and a program or law designed to produce equality disappears. There is

no difference at all.

If sections 15(1) and 15(2) are not separate and contradictory, but

complementary, then 15(2) makes it absolutely clear that the purpose of section 15

as a whole is to ameliorate the conditions of those who are disadvantaged and that

that is what

equality

requires. The idea that affirmative action is a separate,

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6 - adirg 1.3 ?

S. Day

different concept from equality can be discarded. Affirmative action,-becomes then

what it clearly is—a means of creating equality, not a contradiction of it.

Endnotes

1

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7 C.H.R.R. (1986) D/3315.

2 ?

(1986) 55 Sask. R. 245 (Unif. Fam. Ct.)

3 ?

This model is often referred to as formal equality. It asserts that equality means equality in the

form of the law, and it requires that laws treat similarly persons who are similarly situated.

4 ?

Weatherall v. A.G. Canada (1987), 11 F.T.R. 279 (F.C.T.D.).

5 R. v. Neely (1985), 22 C.C.C. (3d) 73 (Ont. Dist. Ct.) and R. i. Lucas (1985), 16 C.R.R. 1 (Ont. Dist.

CO. Both Neely and Lucas were reversed on the ground that s. 15 was not in force at the time the

charges were laid: (1986), 27 C.C.C. (3d) 229.

6 ?

(1985), 52 O.R. (2d) 353 (C.A.).

7 See Catharine MacKinnons discussion of the question of equality in "Making Sex Equality Real"

in L. Smith et al., eds.,

Righting the Balance: Canadajs New Equality Rights

(Saskatoon: Canadian

Human Rights Reporter, 1986) at 37.

8 ?

See for example Re M and The Queen. (1985) 21 C.C.C. (3d) 116; R. v. G.M., (1985)24 C.C.C. (3d)

288; R. v. W., (1985) 22 C.C.C. (3d) 269.

9 ?

(1985) 20 C.C.C. (3d) 196.

10

?

Ibid. at 206. The B.C. Court of Appeal did not follow this reasoning.

11 ?

10 C.H.R.R. (1989) D/6353.

12 ?

10 C.H.R.R. (1989) D/5719.

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Reading 1

Among Equals: Integration of Exceptional Children

I

in Regular Classrooms

Summary of Facts

The parents of a seven year old boy in Coventry, Ontario, are suing on his behalf

for the right to education in a regular classroom. Austin Latham was born

I

prematurely on August 5, 1981. He has Downs Syndrome and his intellectual

functioning falls within the range of moderate mental retardation. He is

physically healthy, active, and has reasonably good verbal and social skills.

I

Austin's parents have endeavoured to provide a rich and stimulating

environment for their son. They enrolled him at age eight months in the Coventry

Infant Development Programme, a programme offered jointly by the municipality

I

of Coventry and the Province of Ontario to meet the needs of developmentally-

delayed infants. Austin attended this programme three times per week with his

Mother until the age of thirty-eight months.

I

At age three, Austin began to attend Avalon Preschool, a Montessori preschool

where he was the only exceptional child enrolled. He attended five mornings per

week for three years. At age five, he attended the neighbourhood school, Coventry

I

Elementary, where he was enrolled in the afternoon kindergarten program. In

1987, the Elmcrest Region Board of Education, acting on the advice of the Coventry

Elementary principal, teachers, and expert assessments, refused the Lathams'

requests that their son be registered in a regular grade one classroom. They

I

recommended that Austin be bussed to an adjacent K-8 school where a class for

slower learning pupils was established commensurate with the child's ability.

This school was located in Camden, 16 km. from Coventry.

The Lathams rejected this suggestion, sending Austin to the Avalon Primary

School, a private extension of the Montessori preschool which Austin had

attended. They followed the appeal procedure set out in the Education Act, R.S.O.

1980, c. 129, but their request to compel the Elmcrest Region Board of Education to

accommodate Austin in a regular classroom at Coventry Elementary School was

turned down by the Appeal Board and the Ontario Special Education (English)

Tribunal before whom they appeared. They launched an action in the Supreme

Court of Ontario.

Plaintiffs Claim—Outline

• THAT the decision of the Special Education Tribunal convened under s.36(1) of

the Education Act is subject to judicial review notwithstanding s.36(5) which

states: The decision of a Special Education Tribunal or of a regional tribunal

under this section is final and binding upon the parties to any such decision.

No provincial statute can operate to preclude a review based on the Canadian

Charter or Rights and Freedoms. Such a review must include an examination

of the substantive issues involved in the appeal in order to be fully operative in

the sense intended by the Parliament of Canada.

THAT the Canadian Charter of Rights and Freedoms s.2(d) has been violated

Reprinted with permission from:

LeBaron, M.

Among equals: Integration of exceptional

children in regular classrooms

(mock trial documents)

pp.

1-4; 8-10.

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2 —'Read'in2 1.4

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Michelle LeBaron

by the refusal of the Elmcrest 'Regional Board to place 'Austin in .a regular

classroom. Austin is entitled to freedom of association, and his placement in a

special classroom violates this right. The' discriminatory effect of the

legislation is subject to review by the Court under the Charter.

•

THAT

the Canadian Charter of Rights and Freedoms s.15 has been violated 'by

the decision of the Board, the effect of which is to discriminate against Austin

on the 'basis of his mental disability. Excluding Austin from a regular class

has the effect of denying him the right to the equal protection and benefit of the

law as guaranteed by s.15(1).

• THAT the Canadian Charter of Rights and Freedoms s.24(1) empowers the

Court to mandate a remedy for the discrimination experienced by Austin

Latham.

• THAT the Elmcrest Regional Board is in breaôh of its duty to provide Austin

with a special education program and special education services appropriate to

his needs pursuant to s. 149.7 of the Education Act of the Province of -Ontario.

• THAT the Elmcrest Regional Board is in breadh of its duty to provide access to

educational services to Austin without the payment of fees pursuant to s8(2) of

the Education Act of the Province of Ontario.

• THAT the Ontario Human Rights Code, S.O. .1981, c. 53 prohibits discrimin-

ation on the basis of mental disability, which" discrimination is the effective

result of the refusal of the Elmcrest Board to accommodate Austin in a regular

classroom.

• THAT the principles set out by Mr. Justice Taylor in the

Bales

decision ought to

be applied in this case, vis. educational, sociological, and other expert evidence

supports the concept of mainstreaming.

•

THAT

Section 15 of the Charter of Rights and Freedoms and the Education Act

of the Province of Ontario combine to guarantee individuals' rights to education

within the least restrictive environment.

• THAT the Court take judicial notice of the American precedents in which the

Fourteenth Amendment has been interpreted to guarantee handicapped

children the right to all educational services regularly provided by the state to

the non-handicapped (Pennsylvania Association for Retarded Children (PARC)

u. Commonwealth of Pennsylvania,

F. Supp. 1257 (E.D. Pa. 1972)).

• THAT the Province of Ontario has not, under s.'33( 1) of the Charter, opted out of

the provisions of ss. 15(1) and 15(2) of the Charter, and is therefore bound by

them.

Argument of Defence—Outline

THAT the Court has no jurisdiction to examine the relative merits of

mainstreaming, nor the merits of the plathtiffs case, as these were the

prerogative of the Special Education Tribunal, whose decision was final and

not subject to appeal.

THAT the Elmcrest Regional Board has fulfilled all duties imposed upon it by

the Education Act of the Province of Ontarid vis. it offered an appropriate

educational program to Austin without the payment of a fee.

THAT s.15 and s.2 of the Canadian Charter of'Rights and Freedoms have not

been violated by the Board in any essential respect.

I

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Among Equals ...

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Reading 1.4-3

• THAT s.1 of the Canadian Charter of Rights and Freedoms which provides

"reasonable limits imposed by law" as a restriction on the rights guaranteed

therein operates to disentitle the plaintiffs to the protection of ss. 15 and 2. The

I

provision of equal benefits in this case would pose an unreasonable strain on

the resources of the Board as it would require the hiring of additional staff and

the duplication of services already provided at the Camden School.

• THAT the bussing proposed for Austin is not discriminatory under s.15 of the

Canadian Charter of Rights and Freedoms as other students within the

District are bussed regularly at a distance equal to or greater than that

necessitated in this case.

I

•

THAT s.15(2) of the Canadian Charter of Rights and Freedoms operates to

empower the District to create and maintain separate schools for mentally

-

?

handicapped individuals as their needs dictate.

Overview of Relevant

Legislation

In their article entitled

Special Education and the Charter: The Right to Equal

Benefit of the Law,

Terri Sussel and Michael Manley-Casimir review Canadian

legislative and judicial precedents involving the placement of physically and

mentally exceptional children in public school placements. They conclude that

there has been historical inequity due, inter alia to

the narrow scope of judicial decision making the expense of instituting legal

proceedings, and the remote chance of successfully challenging provincial

legislation ... [all of which] appear to have discouraged parents of handicapped

children from seeking redress in cases of unequal treatment.

Section 15 of the Charter came into force in 1985 and reads, in part, as follows:

15. (1) 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.

The interpretation of this language is a subject of wide debate among public

I

interest groups, governments, educational administrative agencies, and those

with disabilities themselves. Public interest organizations representing the

disabled argue that the language of s.15 should operate to entitle exceptional

I

children to the right to an education in the least restrictive physical environment

possible. Provincial legislation does not always operate to achieve this effect,

however. The Rowett decision illustrates this point.

The Rowett case arose in the province of Ontario. Regulation 274 of the Ontario

I ?

legislation provides for the placement of those pupils who evidence

behavioral, communicational, intellectual, physical, or multiple exceptionalities

I

in a special education program. The Minister of Education explained the Bill to the

Ontario legislature as facilitating universal access for all children to enrollment

after an assessment procedure, and as imposing a duty on school boards to provide

I

suitable programming for all children.

This regulation does not, however, necessarily have the effect of preventing

exclusionary treatment of the handicapped in all cases. Section 34 of the Ontario

I

Education Act mandates a principal or parent of a child who is

because of a mental or a mental and one or more additional handicaps, unable to

profit from instruction offered by the board

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4 - Reading 1.4

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Michelle LeBaron

to refer the child to a three person committee for programming recommendations.

Such a committee was convened in the Rowëtt matter, referred to as an

Identification Placement and Review Committee. The committee recommended

that Jaclyn be placed in a self-contained class with other "slow learners". The

decision of this committee was appealed to a Special Education Tribunal convened

pursuant to s.36(1) of the Education Act. The Special Education Tribunal

concurred with the decision of the IPRC. The decision of the Tribunal was

appealed to the Supreme Court of Ontario. The Court has not yet adjudicated the

case. The Court's interpretation of s.15 of the Charter will be an important

indication of the willingness of the judiciary to give effect to the rights of

exceptional pupils to placement with their age-peers. The School Board in the

Rowett case contends that s.15(2) of the Charter operates to sanction its decision,

as it

(2)

provides

Subsection

that

(1 ) does not preclude any law, program, or activity that has as its

I

object the amelioration of conditions of disadvantaged individuals or groups

including those that are disadvantaged because ofrace, national or ethnic origin,

colour, race, religion, sex, age or mental or physical disability.

The interpretation of s.15(2) is thus central to the entitlement of exceptional

children to accommodation in regular classrooms.

Section 2(d) of the Charter provides for freedom of association as a fundamental

freedom to which every Canadian is entitled. This has been argued to be a

foundation for the claim that all students are entitled to be "mainstreamed"

wherever possible.

Section 24 of the Charter is the enforcement section which mandates a Court to

award

such a remedy as the court considers appropriate and just in the circumstances.

Arguably, this entitles a Court to order thata child be placed in a regular

I

classroom, and that appropriate programming. be

provided in that setting.

Practically, the issue of funding is often raised as a bar to such an arrangement.

Canadian courts have not traditionally been activist to the extent of ordering an

agency or board to allocate funding to facilitate a particular arrangement. Rather,

they have dealt with similar issues by reviewing only whether a board has acted

correctly from a procedural point of view. They have tended to leave the substantive

placement decision to the educational experts.

Section 1 of the Charter provides that the rights and freedoms set out therein

are

subject to such reasonable limits as prescribed by law as can be demonstrably

justified in a free and democratic society.

Those who would oppose universal access to placement in regular classrooms

I

for the mentally disabled argue that this section recognizes practical constraints

which may make such practice unworkable or impractical.

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UNIT TWO

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PART

ONE:

RESPONSIBILITIES

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PART TWO

EDUCATIONAL MALPRACTICE

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Reading 2.1 ?

Teachers' Rights & Duties in an Era of Change

Abbotsford School District 34 Board of School Trustees

?

v. Shewan and Shewan?

(1986), 70 B.C.L.R. 40 (S.C.)

BOUCKJ.:

Description Of Proceedings

John Shewan and lize Shewan are husband and wife. In the fall of 1983 they were

employed by the appellant as school teachers. Controversy developed when Mr.

Shewan took a picture of his wife in the nude. With their permission, the

photograph was subsequently published in the February 1985 edition of Gallery

Magazine. When the matter came to the attention of the school board they were

suspended from their positions as teachers for a period of six weeks.

An appeal was then taken by the respondents from these suspensions to a

three-person Board of Reference pursuant to s. 129 of the School Act, R.S.B.C. 1979,

c. 375. Evidence and argument were heard by the Board of Reference over a period

of 6 1 /2

days between 9th April and 18th June 1985. On 28th June 1985 the majority

delivered their written opinion allowing the appeal and ordering the respondents

be reinstated together with compensation for all wages and benefits lost as a result

of their suspension.

From that decision the school board appeals to this court.

I

Facts

Mr. and Mrs. Shewan have two children, aged eight months and three years.

I

They are both employed as teachers by the appellant school district. Mrs. Shewan

has been with the appellant since 1976 as a junior high school teacher. She has

taught Drama, English, French, German, with English as a second language.

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Mr. Shewan has been employed by the appellant as a junior and senior high

school teacher since 1973. He has taught English 8, French 8, 9 and 10, Social

Studies 8, 9, 10 and 11, History 12, Law 11, General Business 12 and Foods

I

Cafeteria 10, 11 and 12. He was also extensively involved in many extra-curricular

and community activities.

In 1982 or 1983 Mr. Shewan obtained an entry blank for an amateur photo com-

petition in Gallery Magazine. The respondents filled in the entry form together

and mailed it with a 100-word descriptive statement and three photographs.

Each month several amateur photographs are published in Gallery Magazine.

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There is a monthly winner and a monthly runner-up. At the end of the year an

over-all winner is chosen. The over-all winner gets a substantial prize. Anyone

whose photograph is published receives $50.

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On

the entry form no last names are requested. Mr. and Mrs. Shewan

therefore expected anonymity.

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Reprinted with permission from:

Dickinson, G.M.

(1989).

Teachers' rights and duties in

an era of change.

?

In A.W.

MacKay,

Rights, freedoms, and the education system in

Canada

( pp .

594-610.)

Toronto: Edmond Montgomery.

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2—Reading 2.1

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G.M. Dickinson

On 27th December 1984 Mrs. Shewan received notification by letter from

Gallery Magazine that one of her photographs would be published in the February

1985 edition. With the letter she received a $50 cheque and the remaining two

photographs.

The motives of the respondents for sending the photographs to Gallery

Magazine were personal. Mr. Shewan wanted to tell his wife he loved her and that

she was a beautiful woman. Mrs. Shewan was motivated by an attempt to improve

her self-esteem and a wish to please her husband..

As advised, the photograph was in fact published in Gallery Magazine and

appeared with the following caption at

p.

48:

lize S. 34, teacher

Clearbook, B.C.

Canada

Photography by her husband, John

Ilze is a high school teacher who can speak, read and write in seven languages.

The proud mother of a 15 month old baby boy she also finds time for cooking and

photography.

It is worth noting the setting and nature of the particular colour photograph

which is the subject matter of these proceedings. The picture appears on the

bottom left hand side of a page of photographs under the title "The Girl Next Door,

February 1985". There are five other photographs on the left and right side of ladies

who are either totally or partially nude. One page before and about 13 thereafter

contain pictures of a similar nature. Mrs. Shewãn is seen lying on her back on a

bed with the top of her body uncovered. She has on stockings, high heels and a

garter belt.

Sometime around 23rd January 1985 the superintendent of schools for the

appellant received a telephone call from a radio station reporter inquiring about

the photograph. He then went and bought a copy of Gallery Magazine and

confirmed the identity. After that he called the respondents to meet in his office on

24th January 1985. During the meeting the suprintendent asked questions and

Mr. Shewan responded for himself and his wife.

When asked about the appropriateness of submitting the photograph to the

magazine, Mr. Shewan said he felt it met community standards. The

superintendent said it was not appropriate and he would not be surprised if the

school board felt the same way. Mr. Shewan replied that in his view those opinions

did not reflect the community.

After the meeting on 24th January 1985 the superintendent reported the matter

to the school board. The board then resolved to suspend Mrs. Shewan immediately.

It then set 30th January 1985 as the date for the statutory hearing pursuant to s.

122 of the School Act.

Prior to the statutory meeting on 30th January 1985 the superintendent gave an

interview on television indicating he was shocked and sickened by the episode.

At the statutory meeting, Mrs. Shewan indic'ated through her counsel that the

picture in the magazine was indeed a photograph of herself. She also said that she

had not seen the magazine at the time she sent the photographs. She indicated

there was some indiscretion but that she felt it did not go against community

standards. Following the meeting, the board decided to also suspend Mr. Shewan.

A statutory meeting for this purpose was set for Saturday, 2nd February 1985.

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Teachers' Rights and Duties in an Era of Change

?

Reading 2.1 - 3

At the 2nd February 1985 meeting Mr. and Mrs. Shewan again appeared with

counsel. Counsel for Mr. Shewan requested further time to prepare for the

hearing. At that time a joint public statement was put forward by the respondents

but was not accepted by the school board. On 4th February 1985 Mrs. Shewan was

suspended for six weeks without pay.

Mr. Shewan's statutory hearing took place on 4th February 1985. Through his

counsel Mr. Shewan felt there had been an indiscretion but he further indicated

that in his opinion the magazine met community standards.

On 5th February 1985 Mr. Shewan was notified that he was also suspended

without pay for six weeks.

An appeal was taken by the respondents pursuant to s. 129 of the School Act to

a Board of Reference. That board was appointed by the minister. It consisted of Mr.

Marvin R.V. Storrow, Q.C. (chairman), Mr. Philip Rankin and Mr. Gordon Eddy.

The Board of Reference heard evidence and argument over a

61/2

day period. At

the hearing, evidence on behalf of the school board was given by the

superintendent of schools for the appellants, the superintendents for the school

districts of Vancouver, Burnaby and West Vancouver, and two parents of school

children were also called.

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The respondent for the appellant school district testified he received some 50

phone calls on the subject and the board also received some letters, both for and

against the respondents. The superintendent said some eight parents requested

I

their children not be assigned to the classes conducted by the respondents but he

did not know if any of those students were in the classrooms of Mr. and Mrs.

Sb ewan.

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,During the course of the hearing the superintendent described the respondents

as exemplary teachers both in their teaching ability and in their extra-curricular

activities.

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Two parents were called by the appellant. Mrs. Webb testified she had not seen

the magazine or the picture; however she felt it was disgusting. She further stated

she would not want her 14-year-old son taught in the next term by Mrs. Shewan.

Her children had never had Mr. or Mrs. Shewan as a teacher. She had no other

1 ?

knowledge of their capabilities as teachers.

Mr. Maxwell was the second parent called by the appellant. He also had not

I ?

seen the magazine or the picture. He did not have any children in Mr. or Mrs.

Shewan's classes. Mr. Maxwell was considering placing his children in a new

Catholic private school. At that school the prime requirement for teachers was to

I ?

be their moral and religious views rather than their technical qualifications.

The three experts called by the appellant all indicated that the teachers'

conduct amounted to misconduct.

'

?

?

On behalf of the respondents, Mr. and Mrs. Shewan gave evidence at the hear-

ing. They each admitted an indiscretion but denied any misconduct on their part.

Two parents of students taught by the respondents were called as witnesses on

I

their behalf. One testified that her daughter had Mrs. Shewan as her English 9

teacher. She saw the photograph in question in the magazine but she was not

concerned by the incident.

I

Another witness had her daughter enrolled in a history course taught by Mr.

Shewan. She also saw the magazine and photograph but was not concerned.

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4 - Reading 2.1

?

G.M.

Dic/i1.Mm

However, she was bothered by the actions of the school board in its suspension

ruling.

The chairperson of the Periodical Review Board was called by the respondents.

She indicated she examined the February 1985 edition of Gallery Magazine but

found nothing obscene in it. She described Gallery Magazine as one of the better

magazines which she reviews.

The vice-president of marketing for Mainland Magazine, which distributes

Gallery Magazine, indicated the sale of the magazine was not really increased

because of the incident.

In addition, three expert witnesses were calfed by the respondents. A Dr.

Robert Walker of Simon Fraser University indicated that since the photograph did

not interfere with their professional duties, the incident did not amount to

misconduct. Dr. William Bruneau of the University of British Columbia stated

that since the three aims of public education were not breached by the

respondents, there was no misconduct. Finally, Dr. Michael Manley-Casimir of

Simon Fraser University testified that as there was insufficient evidence of any

effect on their teacher performance arising out of the incident, there could not be

misconduct.

A former student of the respondents also gave evidence. He said that Mr.

Shewan had been a very positive influence on him in school and persuaded him to

pursue a university education. He felt the incident would have no effect on Mr.

Shewan as a teacher or a person.

Principals and colleagues of both respondents, were called on their behalf to

indicate they were superior teachers and members of the community. It was the

opinion of these witnesses that the incident would have no effect on the competence

of the respondents as teachers.

The majority of the Board of Reference held the respondents' actions fell within

accepted standards of tolerance in contemporary Canadian society and therefore

did not amount to misconduct. The majority ordered the decision of the school

board set aside with full back pay to Mr. and Mrs. Shewan.

On the other hand, the minority decision of the board as rendered by Mr.

Storrow held the actions of the respondents constituted misconduct. However, he

decided the penalty was unfair and reduced their term of suspension from six

weeks to ten days.

Issues

Three issues arise from these facts:

1.

'What is the nature of the appeal jurisdiction granted to this court by s. 129 of

the School Act?

2.

Assuming this court has the jurisdiction of the Court of Appeal, did the Board

of Reference err in law or fact when the;ma jority found there was no

misconduct?

3.

If there was misconduct, what is the appropriate penalty?

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-Teachers' Rights and Duties in an Era of Change ?

Reading 2.1 —5

2. Inquiry as to any error by the Board of Reference

Analysis ?

the

(a) ?

of ?

ruling of the majority

Under s. 122 of the School Act a teacher may be suspended by a school board:

1

1.

a. ?

for misconduct, neglect of duty or refusal or neglect to obey a lawful order of

I

the board

It is common ground that the appellant made the suspension orders in

February 1985 because of alleged acts of misconduct. In the majority report the

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members said this:

This case turns on what is meant by the word "misconduct".

I

Because the incident arose outside the course of their normal duties as school

teachers, the majority commented upon the obligations of the respondents when

they are not 'teaching:

We are not convinced that an employer can demand more of a teacher than they

I

exhibit enough decorum and formality to do their job. Teachers are not on duty 24

hours a day. Surely their main function

is

to teach, not to be emulated. When

I

lifestyle.

teachers are off the job, they ought to be allowed far greater latitude in their

We do not expect that teachers should be invisible in their community, nor do we

expect a British Columbia teacher must conform to the strictest behaviour in a

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community, especially while off the job.

Evidence was lead before the Board of Reference as to the "community

standards" in Abbotsford. The argument was then made that the conduct of the

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respondents did not meet these standards and so there was misconduct. The

majority held that proof of community standards was not established to their

I

satisfaction:

Furthermore, Counsel for the Board argued that there were clearly people in the

district who were offended. Since the Shewans had failed to conform with at least

some of the community's standards of conduct, he said that failure amounted to

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misconduct.

Although evidence was lead on the community standards in Abbotsford, neither

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party established to our satisfaction what those community standards were.

As a consequence, the majority then concluded the real test was whether the

I

respondents' conduct "was within the accepted standards of tolerance in

Contemporary Canadian society?" In their opinion it was.

The question we believe that should be asked is not whether the Shewans conduct

fell below some of the community's standards but whether it was within the accepted

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standards of tolerance in contemporary Canadian society. We must formulate an

opinion of what the contemporary Canadian community will tolerate. We have

heard evidence of the community standards and we have heard expert evidence. In

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our opinion, the Shewans' conduct would be tolerated by contemporary Canadian

standards and the evidence on balance indicates this. British Columbian teachers

do not have to have different standards of behaviour depending on what community

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they

teach in.

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6—Reading 2.1

?

G.M. Dickin.wii.

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The actions of Mr. and Mrs. Shewan showed an appalling lack

of

judgment.

Can that lack

of

judgment or imprudent act on these facts amount to misconduct

within the meaning

of

Section

12 of

the

School Act?

In our opinion it does not.

A fair summary of the majority award is as follows:

i.

The standard of conduct of a teacher off the

,

job should not be set at as high a

level as when the teacher is performing his or her professional duties.

ii.

When not working a teacher's conduct does not have to compare with that of

the strictest behaviour in the community.

iii. When assessing what is or is not misconduct, the test should be what is the

accepted standard of tolerance in contemporary Canadian society and not

what is within the community standards of the area where the teacher is

employed.

(b)

Definition

of the word "misconduct"

The word misconduct is not defined in the School Act. The Canadian Law

Dictionary gives it this meaning:

Any transgression

of

some established and definite rule

of

action, a dereliction

from duty, unlawful behaviour, willful in character,

improper or wrong behaviour.

In the law

of

master and servant there is no fixed rule

of

law defining the

degree

of

misconduct which will justify dismissal. The particular act justifying

dismissal must depend upon the character

of

the act itself, upon the duties

of

the

workmen and upon the nature

of

the possible consequences

of

the act. The conduct

complained

of

must be inconsistent with the fulfillment

of

the express or implied

conditions

of

service.

According to the Shorter Oxford English Dictionary it means:

1.

?

Bad management; mismanagement. Often quasi-

spec.,

malfeasance.

2.

?

Improper conduct. Often

spec.

in the sense of "adultery".

Finally, Black's Law Dictionary, 5th ed. (1979), defines "misconduct" as:

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A transgression

of

some established and definite rule of action, a forbidden act, a

dereliction from duty, unlawful behavior, willful in character, improper or wrong

behavior; its synonyms are misdemeanor, misdeed, misbehaviour, delinquency,

impropriety, mismanagement, offence, but not negligence or carelessness.

(c)

Analysis of the evidence

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In proving its case before the Board of Reference, the school board called a number

of witnesses to testify. The first was the superintendent of schools of the appellant

district, the second, the superintendent of schools for School District 45, West

Vancouver, the third, the superintendent of schools for School District 41,

Burnaby, the fourth, the superintendent of schools for Vancouver, the fifth, a

parent of a child who attended school at the same school where Mrs. Shewan

taught and, last, another parent whose five children attend or will be attending

school in School District 34.

All ?

four ?

school ?

superintendents ?

gave

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evidence ?

about ?

the ?

duties ?

and

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responsibilities of a teacher and the fact the reacher sets an example fr the

students in their classroom and how they should behave outside the school. They

also expressed an opinion that the photography incident amounted to misconduct

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Teachers' Rights and Duties in an Era of Change

?

Reading 2.1 - 7

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on the part of the respondents. One parent had not seen the picture in question but

she stated it was disgusting and discipline should have followed. The other parent

described Gallery Magazine as a kind of cheap "skin" magazine.

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Approximately eight witnesses testified on behalf of the respondents. A parent

of a child in a class taught by Mr. Shewan said she had a high opinion of Mr. and

Mrs. Shewan and their private life was their own. Another parent was not

I

offended by the picture. An officer representing the distributor of the magazine

said the February 1985 edition was approved by a non-statutory advisory board that

was set up to monitor these kinds

,

of publications. A witness who described herself

as a sociologist and who does research in the field of pornography said the

I

particular edition was not objectionable. Mr. Shewan was described by a former

student as very helpful to students outside the normal school hours. He stated the

picture did not offend him.

One gentleman testifying for the respondents said he was an expert in the

professional conduct of teachers. He is a professor at Simon Fraser University. In

his opinion, the incident did not involve any bad behaviour nor was there anything

bad about sending a nude photograph of one's wife to a magazine. The principal of

a local junior secondary school spoke favourably about the competence of Mrs.

Shewan as a teacher but in his opinion it was not wise for her to put her picture in

the magazine. Finally, an expert in the theory and development of public

education and moral theory described the event as a foolish indiscretion and not

misconduct.

Besides this oral testimony, a number of documents were filed as exhibits at

the hearing before the Board of Reference. They included testimonials to the

character of the respondents and written reports of experts who were later called

to give evidence.

In summarizing this evidence, I am not intending to describe verbatim what

was said by these witnesses over the

61/2

days of the hearing. Nor do I know what

testimony the majority of the Board of Reference accepted and what exactly it

rejected. The purpose of the exercise is to give some general idea of what the

majority heard so as to put their decision in context.

(d) Error in the majority award

Previously I mentioned the majority held that the real test in this instance was to

determine whether or not the conduct of the respondents was within the standards

of what contemporary Canadian society would tolerate. To assist them in reaching

their decision, they relied upon the judgment of the Supreme Court of Canada in

Towne Cinema Theatres Ltd. v.

R.,

[1985] 1 S.C.R. 494, [198514 W.W.R. 1, 37 Alta.

L.R. (2d) 289,45 C.R. (3d) 1,18 C.C.C. (3d) 193,18 D.L.R. (4th) 1, 59 N.R. 101, 61 A.R.

35. That was a case involving an alleged obscene motion picture. It arose out of a

charge under s. 159 of the Criminal Code, which defines obscenity in part as

follows:

(8) For the purposes

of

this Act, any publication a dominant characteristic

of

which

is the undue exploitation

of

sex, or

of

sex and any one or more

of

the following

subjects, namely, crime, horror, cruelty and violence, shall be deemed to be

obscene.

The Supreme Court of Canada held at

p.

507 that a "breach of community

standards" is simply one measure of

undueness

under s. 159(8).

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8 —eadj,g2.1 ?

G.M. Die.ki,isvn -

It then went on to accept the proposition that "standards of tolerance" is not

synonymOus with "moral standards of the community" because the moral

standards of the community involve no more than a consensus of what is right

and what is wrong. At

pp.

507-508:

A similar point was made by Weatherston J.A.,, delivering the judgment

of the

Ontario Court

of

Appeal in R. v.

Penthouse International Ltd., (1979), .46 C.C.C. (2d)

111 (leave to appeal refused,

[1979]1 S.C.R. xi)

at

pp.

114-15:

It is neither helpful nor accurate to say that the standards

of

tolerance is

synonymous with the moral standards

of

the community . . . the words 'moral

standards of

the community' means no more than a consensus

of

what

is

right and

what is wrong . . . The question, in any event, is not whether the content

of

the

publication goes beyond what the contemporary Canadian community thinks is

right, but rather whether it goes beyond what the contemporary Can

community

is

prepared to tolerate.

In my view, the issue in the case before me involves the "moral standards of the

community" where the respondents taught and lived and not the Canadian

standards of tolerance test applied to obscenity cases. I say this partly because the

moral conduct of a teacher amounting to misconduct may have nothing to do with

obscenity as defined under the Criminal Code. Lying by a teacher is an example. A

lie amounts to a breach of morality and may be misconduct but it is not obscene.

Hence, using the "tolerance" test which was designed for obscenity cases is a poor

way of testing "moral conduct".

It is coincidental in these proceedings that the nude picture may be considered

obscene by some. But that does not mean the Board of Reference should apply the

test of determining what is or is not obscene to the real issue as to whether or not

there was misconduct.

From this discussion it follows that the majorit of the Board of Reference erred

in law when they adopted the standards of tolerance test in

Towne Cinema

Centres Ltd.

as a basis for allowing the appeal. They also gave undue weight to the

expert evidence when they had before them the material itself to look at and rule

upon.

Nonetheless, I do not believe their ruling should be upset for that reason alone.

The decision may still be the right one if there was evidence they heard to support

the conclusion that the behaviour of the respondents was not misconduct because

it did not offend "the moral standards of the community".

(e) Admissibility of lay opinion

A great deal of opinion evidence was heard called from lay witnesses and experts

as to whether or not the incident amounted to misconduct on the part of the

respondents. It seems reasonably clear that opinion evidence by a lay witness as to

what is misconduct would not be admissible in a court of law if that issue were

under investigation:

Sherrard v. Jacob,

119651 N.J. 151 at 156 (C.A.):

A witness, for example, cannot be allowed to say that a defendant was negligent

or

that the respondent in a divorce suit was guilty

of

the matrimonial offence of

cruelty, for while these are issues of fact, they necessitate the application of

standards determined by law.

?

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It was put another way by Goddard L.J. in

Plollington v. Hawthorn. & Co.,

[194311 K.B. 587 at 595, 119431 2 All E.R. 35 (C.A.):

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Teachers' Rights and Duties in an Era of Change

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Reading 2.1 - 9

It frequently happens that a bystander has a complete and full view of an accident.

I

It

is

beyond question that, while he may inform the court of everything that he saw,

he may not express an opinion on whether either or both of the parties were

negligent. The reason commonly assigned is that this is the precise question the

I

court has to decide, but, in truth, it is because his opinion is not relevant.

Although evidence of this nature must be excluded by a court of law, it does not

always follow that it cannot be admitted by an administrative tribunal such as the

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Board of Reference: Reid and David, Administrative Law and Practice, 2nd ed., at

p. 74:

There is no single code which, apart from statute, governs the question whether the

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court rules (of evidence) do or do not apply.

The mere violation of an evidential rule may be nothing as such. It is not the

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error

of form but the error of substance that counts.

It is not necessarily an actionable error in law to admit irrelevant evidence at a

hearing before an administrative tribunal which is exercising judicial or quasi-

judicial functions unless a statute says otherwise. The touchstone is whether the

majority of the Board of Reference allowed themselves to be influenced in some

measure by improperly admitted evidence:

Dallinga v. Calgary City Council,

[1976]

I

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W.W.R. 319 at 320, 62 D.L.R. (3d) 433 (Alta, C.A.).

Even if the lay opinions were improperly admitted, there does not appear to be

any indication in the majority decision to show they were wrongly influenced by

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this testimony.

0

(t)

Admissibility and weight of expert evidence

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Expert evidence on misconduct also creates a vexing question just as it does in

cases involving obscenity:

Towne Cinema Theatres Ltd. at

p.

512:

The issue of who must place evidence of what before the trier of fact in obscenity

I

cases is a vexing and recurring problem. Under the

Hicklin

rule expert evidence

was in general held to be irrelevant.

I ?

And at

p.

514:

Expert evidence is always expensive, sometimes simply not available and

frequently unreliable. The American experience—based, to be sure on a somewhat

I ?

different test for obscenity—has been summarized in

Paris Adult Theatre I v.

Siaton,

413 U.S. 49 (1973) at

p.

56, Note

6. Obscenity, it is said, "is not a subject that

lends itself to the traditional use of expert testimony . . .

indeed the 'expert witness'

practices employed in these cases have often made a mockery out of the otherwise

I ?

sound concept of expert testimony".

United States v. Various Articles of Obscene

Merchandise,

709 F. 2d 132 (2d Cir. 1983) at

p.

135, a recently reported American

obscenity decision, confirms that although the government bears the burden of

I

?

providing each element of obscenity (including a breach of community standards)

to the satisfaction of the trier of fact, expert evidence of community standards is not

constitutionally required, and that absent (or even in the face

of)

such evidence, the

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impugned materials may "speak for themselves" so as to ground a conviction for

obscenity.

This is essentially the situation that obtains in Canada.

[The italics are mine.]

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Consequently, expert evidence in obscenity cases is admissible on the issue of

undueness

but must be "weighed by the Court even when it is all one way and

stands uncontradicted":

Towne Cinema Theatres Ltd.

at

p.

515. If the obscene

I.

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10—Reading 2.1

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G.M. Dickinson --

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material itself is introduced into evidence, then expert evidence is not required:

Towne Cinema Theatres Ltd.

at

p.

515:

I consider as accurate the following statement of evidentiary requirements

enunciated in the recent decision of Borins J. in

R. v. Doug Rankine Co. (supra), at

pp.

171-72:

It is well established that if the material itself is introduced into evidence.

expert evidence as to obscenity or community standards is not required.

Indeed,

even if it is presented, the trier of fact is not bound to accept it. There is no necessity

for the judge or jury to rely on evidence introdtced in court as the basis for

identifying community standards. Therefore, the trier of fact may determine for

himself or herself (or themselves, in cases tried by a jury) the content of the

community standard which is to be applied in determining whether the material in

issue exceeds that standard. It is an objective tesl which applies. The test is not

based on the level of tolerance of the judge or the jury. It is what the judge or jury

believe the national level of tolerance to be. [The italics are mine.]

While the test for obscenity is different from the test for misconduct,

nonetheless it seems to me the rules as to the admissibility and weight given to

expert evidence in obscenity cases is [sic] helpful in examining the weight and

admissibility of expert evidence when determining the misconduct of a teacher. In

effect, the cases indicate opinions of experts on the

,

issue of misconduct of a teacher

have little probative value and are more or less irrelevant when the facts

themselves are before the tribunal. Besides, hearing expert evidence on what

amounts to misconduct is much like hearing expert evidence on whether a person

is honest or not. Misconduct, like honesty, is tested mostly by other objective

testimony which uses fact and not opinion evidence to arrive at the ultimate

answer.

There is no factual issue between the parties as to whose picture it was or

whether it was published by Gallery Magazine. That is admitted. The real issue is

whether the conduct of the respondents offends the moral standards of the

community and amounts to misconduct. Since the photograph and magazine

were before the Board of Reference, I do not think there was any need to hear

expert evidence as to whether the incident amounted to misconduct. To determine

the answer, the board was required to hear objective evidence as opposed to

opinions.

3. Determining the Moral Standards of the Community by Objective Testimony

I

propriety

Case law

of

seems

a particular

to indicate

act by

a

using

judge

his

or

own

tribunal

personal

should

scale

not

of values.

decide

Instead,

the moral

he

?

I

should try and seek out other kinds of evidence which lead him to the correct

answer: Towne Cinema Theatres

Ltd.

v. R., supra, 18 C.C.C. (3d) 193 at 207:

?

1

The appellant argues, as I have indicated, that the trial judge applied a subjective

and local standard rather than a national objective

l

test. In

R. v. Brodie

(1962), 132

C.C.C. 161, 32 D.L.R.(2d) 507, 119621 S.C.R. 681, Jiidson J. makes it clear that

the

trier of fact is not supposed simply to apply his own isubjective standard but rather

to

assess the community standard.

Breaches of the Criminal Code or school regulations by a teacher are examples

?

•1

of objective facts indicating improper behaviour. By themselves, they may he

sufficient to reach a finding of misconduct. But other types of a})norrnal

ehviour

are not so easy to assess. In certain situations, they may appear

to

he misconduct ?

I

I

---

Teachers' 1?tghts and Duties in an Era of Change

?

Reading 2.1 - 11

to the presiding tribunal whereas to the outside world they may not. The opposite

nty also be true.

In this instance, the Board of Reference had the right to hear evidence about

what a teacher does from day to day and his or her position in the community at

large. In this way it could assess the conduct of the average teacher. Then it could

examine the alleged act of misconduct. From this evidence it was in a position to

decide if there was misconduct because it could compare the conduct of the

average teacher as shown by the evidence with the evidence presented to show an

act of misconduct on the part of the teacher who was charged. It might not be

misconduct for a person in some other trade or calling but the same act committed

by a teacher might indeed amount to misconduct. All of that was for the Board of

Reference to decide and not for a witness. While it was an issue of fact as to

whether there was misconduct, the question the board had to answer in the end

was whether those facts amounted to misconduct in law.

Did the respondents meet the moral standard of the community by the

publication of the nude picture in Gallery Magazine and, if not, did that have any

effect on their ability to teach. One way of determining the point is to look at the

conduct of other teachers. If a good number of teachers in or about Abbotsford are

publishing their nude photographs in a magazine such as the one in question,

then the conduct of the respondents may be within community standards. If no

other teachers are doing this, then it may be misconduct. Evidence of this nature

was not heard by the Board of Reference but I believe I am entitled to draw an

inference from the proven facts as to whether a substantial number of teachers in

the Abbotsford area do indeed publish their nude pictures in men's magazines. It

seems clear they do not.

This is not a conclusive test because the key ingredient is whether the act of

misconduct affects the teacher in his or her educational capacity. If it does not,

then it is not an offence under the School Act.

4.

Determining Community Standards by Examining Similar Instances Where A

I

Teacher was Found Guilty of Misconduct

In the opinion of the Board of Reference the conduct of a teacher outside of work

I

does not have to comply with "strictest behaviour in the community". That opinion

seems correct but in passing I should say that neither is the conduct necessarily

proper if it satisfies the lowest standard of behaviour in the community. To

objectively determine what is the community standard is difficult. I think some

'

help can come from other cases where tribunals have adjudicated upon the

conduct of public sector officials including teachers. Here are a few examples.

.1.

Fireman: Kamloops v. Newman,

25th October 1977 (unreported)—arbitration

I

award.

This was a grievance arbitration resulting from the motion

[sic]

of the grievor

I.

from the rank of assistant chief to that of captain in the Kamloops Fire

Department. It rose out of his unsatisfactory conduct in fighting a fire which

occurred on the Trans Canada Highway and involved a multi-vehicle collision. At.

p. 22 of the award, the majority said this about the position of a fireman in the

I

community:

We

are mindful that the

fire department of a

municipality such as Kamloops

has a

high public

profile.

It performs many of its duties under the scrutiny of public

I

observation and relies on public support for many of its programs. As one example,

iii a fire prevention program public acceptance and support is essential to its

I

---

12 —Reàding 2.1 ?

" ?

G.M. Dickinson __--

success. Hence,

in evaluating the suitability

of

the 'discipline we are coneèrn'ed hbt

'only with the grievor s ability and conduct as demonstrated in the performance of

his duties but also with the

effect

that level of

performance might he expected to have

on the trust and

confidence

of

the public in the fire department: Air Can: v. mt.

Assn.

of

Machinists Loc. 148 (1974), 5

L.A.C.

7.

In the present instance the events of

8th May

1977

were the subject of adverse public comment when the handling of the

situatibn was described over the radio in KamIoo'js as "a comedy of errors". IThe

italics are mine..]

2. Nurse: Re Oshawa Gen. Hosp. and

Ont.

Nurses' Assn.

(1981), 30 L.A.C. (2d)

5.

A nurse was arrested when police found marijuana in her residence which

was reported to havee-a street value of $15,000. She also had some marijuana plants

which were 8 to 10 feet tall. She was suspended by the hospital pending her trial.

Her grievance against the suspension was dismissed. In the course of the

decision, the board said this about the position in society of a nurse at

p.

9:

This board is satisfied that

if

a registered nurse is convicted

of active illegal

marketing of a narcotic such as marijuana

this could present a public hospital

employing that nurse with both a work place and community problem

sufficient to

support the termination of the nurse's employment.

Nurses

are highly trained

professionals. Because of this training they assume an important and strategic

role in a hospital. They in effect, represent such intitutions to the community and

constitute the interface between physicians and

,

patients. Patients must have

con

f

idence

in the judgments made by the nursing

profession and can often become

quite dependent on individual nurses during their stay in the hospital. The trust.

and confidence reposed in the nursing profession is reflected in its code of ethics

and the tact that the profession is regulated to some, ' degree by statute. Indeed, these

characteristics are hallmarks of a profession. Theitalics are mine.]

3.

Bus driver: Re Calgary and Amalgamated Transit Union, Loc. 583 (1981), 4

L.A.C. (3d) 50.

A bus driver pleaded guilty to the offence of common assault. He assaulted a

babysitter at his home. As a result of the conviction he was discharged. In

allowing the grievance and imposing a period of uspension in lieu of discharge,

the board commented upon the position of a bus driver in the community at

p.

60:

We are of the opinion that the nature of the grievor's offence and his conviction for

common assault are to be considered work-related in the present case.

The city

transit service is a highly visible public service which carries many female

passengers both adult and juvenile.

Although there was no evidence of publicity

surrounding the incident that circumstances of chance should surely not be the

determining factor. The test in our opinion should be whether the employee's

conduct, judged by reasonable standards, would he considered by the public who use

the Transit System as adversely affecting the reputation

of

the system:

In other

words, 'Did the employee do anything likely to be prejudicial to the reputation

of

the

employer?':

Re Huron Steel Products Co. case, supra.

It is our opinion that the

answer to that question must be in the affirmative and that, given the nature

of

this

offence, the city would be open to censure from the 'public

if

it stood by and took

no

disciplinary action against its employee. [The italics are mine.l

4.

Air Canada employee: Re Air Can. and

mt.

Assn. of Machinists, Lodge 148

(1973), 5 L.A.C. (2d) 7.

Air Canada dismissed one of its employees when he was found guilty of'

possession of marijuana. He grieved the firing but it was upheld. At p. 9 a single

arbitrator commented upon this off-job misconduct in the following words:

---

I

Teachers' Rights and Duties in an Era of Change

?

Readimi 2.1 - 13

I

Air Canada,

to the contrary,

is

in a highly, publicly visible industry.

It is in the

I

business of serving the air transport needs of the public. Its employees for a

substantial part, including the grievor, are directly responsible for the safety of the

I

air travelling public and for the

?

security of their personal

?

valuables.

The

employees must have the trust and confidence not only

of

the company but

of

the

travelling public, its customers.

The

" o

ff-job

"

misconduct

of

an employee in one industry may not occasion

I

harm to his employer's reputation, while the same misconduct in another industry

may he or he likely to he prejudicial to the employer.

[The italics are mine.]

5.

Teacher: Re Etobicoke Bd. of Educ. v. Ont. Sec. Sch. Teachers' Fed., Dist.

12

I

(1982), 2 L.A.C. (3d) 265.

An Ontario teacher was convicted of conspiracy to possess stolen goods. He was

I

discharged and

g rieved the firing. It was upheld. The three-member board

discussed the responsibilities of teachers in these words at

p.

271:

The education of children to respect the law and the listed virtues, however they

I

may he overstated, is central to what school boards do and hire teachers to do. It is

fundamental to the educational process, as we see it, that teachers are seen not only

to teach students, but to practise, within reasonable limits, that which they teach.

The grievor has been described as someone who exercises, by force of his

I

personality, considerable influence over his students. That influence flows at least

partly from the special relationship created by his employment. It is vitally

important that the result of that relationship and influence not be to suggest to

I

students that a respected and influential teacher thinks participation in crime is

excusable. [The italics are mine..]

l

6.

Teacher: Re Peace River North Sch. Dist. 60 Bd. of Sch. Trustees and

Stockman,

25th January 1974 (unreported).

A teacher continued his association with a girl contrary to the wishes of the

I ?

school board. The details of the association are not set out in the ruling. AS a

result of his actions, he was suspended. He grieved the suspension which was

upheld by the majority. In its award the majority commented upon what is or is

I ?

not misconduct at

p.

2:

Counsel for the School Board also submitted that it is misconduct if a teacher's

conduct was likely to bring his employer into disrepute or if he does anything

I

?

?

incompatible with the due or faithful discharge of his duty or if he refuses to obey a

lawful direction of his employer.

In the opinion of the majority of the Board of Reference,

Mr. Stockman's

continuing association with the girl justified the School Board in concluding that it

would not he fulfilling its responsibilities to the community and particularly to

parents of the School District's school children,

if it did not take steps to terminate

I

the association. However, the evidence is clear that although Mr. Stockman was

prepared to make certain concessions with regard to his relationship with the girl,

such as limiting public appearances, he was not prepared to terminate the

I ?

relationship.

In the opinion of the majority of the Board of Reference. Mr. Stockman's

decision

to continue the association

with the girl was misconduct within the

I

meaning of the Public Schools Act in that the continued association

would likely

bring the School Board into disrepute in the community

and amounted to a refusal

to obey a lawful direction by-the School Board. [The italics are mine.]

ri

---

14— Reading 2.l

?

G.M. Dickinson -

7.

Teacher: Peace River North Sch. Dist. 60,9d. of Sch. Trustees v. Olson,

13th

June 1983 (not yet reported).

Mrs. Olson was suspended from her position as teacher and then. later

dismissed. She grieved the discharge. Evidence led before the Board of Reference

indicated she knew stolen property was being kept in her house but turned a blind

eye to its existence. She also condoned the use of hash and marijuana by others

while they were guests in her house. The grievance was dismissed. At.

p.

14 of the

award, the Board of Reference commented upon the position of a school teacher in

these words:

Taylor is a small community. Mrs. Olson agreed that word

of

improprieties

travels quickly. The sort of conduct which Mrs. Olson has engaged in or condoned

in her home is a failure of her duty to her employer, to her broader constituency, the

community and to her

pro

f

e

ssion. It is likely to detract from the esteem for

education in the community.

It is abusive

of

the trust that reposed in her which Mrs.

Olson acknowledged in her evidence. As'such

this conduct not only undermines

her ability to do her job in this community, it also erodes the ability of the schools to

deliver the standard of education that the community is entitled to expect.

Not the

least of this was her failure to meet the professional standards of her own

Federation as set out in its Member's Guide. We have no hesitation in concluding

that this conduct is misconduct deserving

of

discipline. [The italics are mine.]

8.

Teacher: Vancouver Sch. Dist. 39 Bd of Sch. Trustees v. Van Bryce, 18

August 1979 (unreported).

A teacher was suspended for misconduct and subsequently dismissed. He

pleaded guilty to a charge of gross indecency with a 17-year-old boy. The dismissal

was upheld. At

p.

5 of the ruling the board said the following with respect to the

position of a teacher in the community:

the role of the teacher is something more than that of a skilled technician in the

classroom—that it requires, as an essential part of the learning process, that the

teacher be a leader and a model earning the respect and inspiring emulation on the

part of those in his charge and with whom he must deal.

Mr. Lafavor testified that

the necessary element of trust and confidence which the administration must have

in the teaching staff has, in the case of the Appellant, been impaired by reason

of

his

involvement in this offence. In Dr. Lupini's view, the Appellant's involvement in

such an incident could weaken public confidence in the school system generally

and has impaired his usefulness to the school and to his employer. With these

views, this Board

of

Reference is in complete accord. [The italics are mine.]

What do these decisions tell us? They say a teacher is an important member of

the community who leads by example. He or she not only owes a duty of good

behaviour to the school board as the employer but also to the local community at

large and to the teaching profession. An appropriate standard of moral conduct or

behaviour must be maintained both inside and outside the classroom. The nature

of that standard will, of course, vary from case to case. Moral standards are those

of the community where the teacher is employed and lives not those of some other

city or municipality. In most instances there will be little difference, but what may

be acceptable in an urban setting may occasionally be misconduct in a rural

community and vice versa. For example, a small religious community might find

it unacceptable for a female teacher to live with a man out of wedlock or a male

teacher to live with a woman who is not his wife. On the other hand, these kinds

of

relationships may he tolerated in an urban settingwhere the two people

are lost in

the anonymity of the crowd because they live far away from the school

or because

the values of the city are different from the values of the country.

---

I

Teachers' Rights and Duties in an Era of Change

?

Reading 2.1 - 75

I

I

Initially, I should not find whether there is misconduct in these kinds of

situations simply by looking at the act complained of and then expressing my

personal opinion whether it offends the School Act. Instead, I must see what other

I

objective non-opinion evidence exists to help categorize the nature of the conduct.

But at the end of the day, I am required to state my opinion. The difference is that

my opinion is based upon outside evidence and not just a personal reaction to the

I ?

allegations of misconduct.

There was an act of misconduct in this case since the incident amounts to

abnormal behaviour which reflects unfavourably on the respondents. They are

I

supposed to be examples to the students. Their actions lower the esteem in which

they were held by the community including the students, because they set a

standard that the community found unsuitable. All of this amounts to

I ?

misconduct. The appeal is therefore allowed and I now turn to the issue of penalty.

Penalty

Was the penalty of six weeks' suspension as determined by the school board

I

appropriate in the circumstances?

When the matter first came before the school board, it set a penalty of six

I ?

weeks' suspension without pay for each of the respondents. At the hearing before

the Board of Reference the minority report of Mr. Marvin V. Storrow, Q.C.

described the financial result of this penalty as an after tax salary loss of $7,000

divided between the two respondents. In the circumstances he reduced the

I ?

suspension period from six weeks to ten days. The question which now must be

answered is what is the appropriate period of suspension given the facts set out

above?

1

One way of deciding the fairness of the suspension period is to examine awards

where a teacher has been penalized for misconduct and compare the facts of those

instances with what the respondents did here. In that way the final answer

I

should tend to be more consistent. Following are decisions which were cited to me

in this area of the law. The names in brackets after the name of the case are those

of the chairman of the particular Board of Reference:

I

i.

Chilliwack Sch. Dist. 33 Bd. of Sch. Trustees v. Hall,

Saunders, 16th September

1981 (unreported)—A female teacher who had 20 years' experience was absent

from her duties as an elementary school teacher when she went on 'a holiday

I ?

for seven days. Penalty—two months' suspension by the school board; upheld

by the Board of Reference.

2.

North Vancouver Sch. Dist. 44 Bd. of Sch. Trustees v. Machado-Hoisti,

Gifford,

I

20th August 1981 (unreported)—A female teacher with approximately 12 years'

experience at a senior secondary school was found responsible for condoning

and participating in a breach of school regulations regarding the use of alcohol

I

at a school-supervised function; misleading the school principal with respect to

the circumstances which took place; and encouraging and setting an example

for students of unsatisfactory qualities of personal behaviour. Penalty—

dismissal by the school board; reduced to suspension of 4 months and 19 days

by the Board of Reference.

3.

Greater Victoria Sch. Dist. 61 Bd. of Sch. Trustees v. Smith,

Lightbody, 6th

I

October 1983 (not yet reported)—A male teacher at a senior secondary school

with 10 years' experience admitted to a sexual relationship with a 17-year-old

female student. She was not a student in any of his classes. Penalty—dismissal

11

---

16 - Reding 2.1

?

G.M. Dickiu,son

I

by the school board, reduced to six months' suspension by the Board of

Reference.

4.

Revelstoke Sch. Dist. 19 Bd. of Sch. Trustees v. Malpass,

Cumming, 28th

August 1979 (unreported)—A female teacher with an unknown number of

years of experience who was teaching at a secondary school was involved in a

scuffle of a sexual nature with a female student. Penalty-1 month plus 13

days suspension by the school board; upheld by he Board of Reference.

5.

Delta Sch. Dist. 37 Bd. of Sch. Trustees v. Hutton,

Cumming, 11th July 1978

(unreported)—A

,

male teacher with an unknown number of years of experience

struck a male pupil on the right cheek while, he was teaching in a junior

secondary school. Penalty—dismissal by the school board; upheld by the Board

of Reference.

6.

Powell River Sch. Dist. 47 Bd. of Sch. Trustees v': Basi,

Gifford, 19th March 1980

(unreported)—A male teacher with an unknown number of years of experience

slapped a student while teaching at a junior secondary school. He was

previously found guilty of a similar offence involving a female student on 7th

May 1979. Penalty—dismissal by the school board; upheld by the Board of

Reference.

7.

Powell River Sch. Dist. 47 Bd. of Sch. Trustees 'v. Rouane,

Cumming, 7th May

1979 (unreported)—A female teacher at a junior secondary school with about

two years experience in the local school district was consistently late in

arriving at school in the morning and afternoon. Penalty—dismissal by the

school board; upheld by the Board of Reference.

How does the six weeks' suspension set by the school board and the alternative

ten-day suspension recommended by the chairman of the Board of Reference' fit

into this scheme? That is not an easy question to answer. Drawing a precise

comparison between this act of misconduct and those other cases is impossible. As

a trial judge, I am well aware of the difficult position of the school board when it is

the first one who must select the appropriate penalty. It is often easy to criticize

that decision and tempting to make a change.

Occasionally, there is a tendency to think that because of the effluxion of time a

more rational and dispassionate assessment can be made as to the correct penalty.

It is then perceived to be free of any taint of the public clamour that may have

influenced the original judgment. But justice is an intangible substance in many

instances. Most of the time no one can really tell whether the penalty fixed by the

first tribunal is less correct than the one which reduces it. Will the reduction deter

the parties or others who might be inclined to attempt the same thing or will it

simply encourage some to commit the same act because the penalty is looked upon

as being insignificant?

There is a general rule that I should not '"tinker" with the six weeks'

suspension by reducing it by a few days, but if it is 'excessive in the normal run of

things, then I should not hesitate to set a penalty that is more reflective of the

incident and of the parties involved. I do not kndw what kinds of similar cases

were referred to the school board when it was dalled upon to fix the penalty.

Although it is important to stand behind any reasonable imposition of a penalty as

determined by a school board, it is equally important that the offence or

misconduct reflect a penalty consistent with other cases, so far as that is possible.

At the same time I must look at the past good conduct of the respondents. They

were highly regarded by their peers, their supervisors and their students. No

doubt this was an abnormal incident. It came about because of some marital and

---

Teachers' Rights and Duties in an Era of Change

?

Reading 2.1 - 17

emotional difficulties the respondents were experiencing at that particular time.

Mr. Shewan looked upon the publication as a way of restoring some lost confidence

that was affecting his wife. Mrs. Shewan said she did it to please her husband.

Neither of them considered it a clever or sly thing to do or good way to make

money.

In these circumstances, I think the appropriate penalty is a one-month

suspension. This will mean a total past loss of income after taxes between both of

them, of about $4,600.

Summary

1. The Board of Reference fell into error when:

a.

It applied the obscenity test of the standard of tolerance of contemporary

Canadian society when it should have applied the test of the moral standard

of the community, namely, the community in the Abbotsford area;

b.

It admitted expert opinion on misconduct and allowed itself to be improper-

ly influenced by the experts called on behalf of the respondents. The proper

way to test whether the conduct complained of amounted to misconduct was

to hear objective evidence about the activities of other teachers in the

community and to compare similar situations where teachers or other

public sector employees were disciplined for wrongful behaviour;

c.

It decided the word "misconduct" as set out in s. 122 of the School Act has

little application to behaviour of teachers outside of their normal school

duties.

2. Teachers are amongst the leaders in the community. They are supposed to set

an example for their students to follow. This includes their behaviour both on

and off the job.

3. A fair interference to be drawn from the testimony heard by the Board of

Reference is to the effect that other teachers in the Abbotsford area do not send

their nude or semi-nude pictures to men's magazines for publication.

Consequently, the conduct of the respondents was abnormal.

4. A teacher owes a duty of good behaviour to the school board as his or her

employer, to the local community and to the teaching profession. Looking at the

facts of these cases and the abnormal behaviour of the respondents as described

by the evidence, one can only conclude that in this instance their behaviour

amounted to misconduct.

5. The penalty of six weeks' suspension was excessive given the past favourable

history of the respondents and looking at cases where penalties have been

imposed upon teachers for improper conduct. A more reasonable penalty in

keeping with these awards is one month's suspension.

Judgment

The appeal is allowed and a penalty of one month's suspension is imposed in place

of the six weeks' suspension set by the board.

Although the appellant did not succeed in restoring the penalty of six weeks'

suspension, it won on the major issue of misconduct and obtained a higher

penalty than the one suggested by the minority ruling. Therefore, it is entitled to

its costs.

Appeal allowed.

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18— Reading 2.1

?

'G.M. Dickinson

The Shewans appealed Bouck J.'s decision to the British Columbia Court of

Appeal. The Court of Appeal dismissed the appeal and accepted the lower court's

reasoning that teachers hold a position of trust and responsibility, and that their

conduct cannot be permitted to jeopardize public confidence in the school system

and its teachers. (B.C.C.A., Nemetz C.J.B.C., Hinksoh, Macfarlane J.J.A.,

December 21, 1987).

Questions

1.

Do you agree with the discipline assessed by the board? Was it appropriate to

give the teachers the same punishment?

2.

Why did the court disagree with the decision of the board of reference?

3.

What is the "community" referred to in the phrase "community standards"?

How did the court determine what those standards were? If, as the court said,

community standards may vary from one city or municipality to the next, or

vary according to broad differences between urban and rural values, could it be

argued that this lack 'of uniformity places individuals in different degrees of

legal jeopardy depending on where they reside and work? Could such

reasoning form the basis of a challenge under section 15 of the Charter?

---

I

Reading 2.2

Freedom of Expression Outside the Classroom

In the May 9, 1989 issue of the

Regina Leader-Post,

under Readers' Viewpoints,

the following letter over the name of a Grade 3 teacher employed at Assiniboine

School in Kamsack, Saskatchewan, was published.

Indian Students Benefit from Discrimination

wish to publicly express support for Minister of Indian and Northern Affairs

I

I

Pierre Cadieux on our government's decision in favour of a cap on the amount of

money available to post-secondary assistance programs for Indian students.

I

Post-secondary education is not a treaty right. Therefore, our government

should treat all Canadian students equally, regardless of race.

et's be realistic and not have bleeding-heart emotions dictate discrimination

I

and racism in our democratic country. The media have taken a biased approach

with reports favouring the Indians. This is, therefore, a form of racism and

discrimination against non-Indian Canadians, as usual.

I

The government admits its objective is to help Indians and Inuit to "gain access

to post-secondary education and to graduate with the qualifications and skills

needed to pursue individual careers." Applying this policy only to Indian and Inuit

I

students makes it a discriminatory practice against non-Indian, post-secondary

students who are also pursuing careers.

I

It is not realistic to expect non-Indian Canadians to be blackmailed and

coerced because the Indians claim "they are paid in advance forever" because of

native land and resources surrendered to the federal government. It is preposterous

to believe a debt is never paid in full and must continue to be paid until hell freezes

I

over.

The media have made no effort to inform the native public of the countless

benefits Indians receive at the financial expense of non-Indian Canadians who

I

pay,

but do not qualify themselves, for these numerous benefits.

Another point of contention is that until now all Indian students qualify for this

handout, regardless of socio-economic standing. For example, the children of an

I

Indian chief or Indian bureaucrat, who earn a salary in excess of $60,000 income-

tax-free dollars, qualify just as well as a pauper's children.

I

If these Indian students graduate and pursue highly paid careers, then they are,

in most cases, income-tax-exempt for life, if they make their earnings on the

reserve. They then start another generation of tax-free dependents.

I

Indian students should be treated equally with non-Indian students. They can

pay for their own education through student loans, scholarships and bursaries.

It is disgusting to hear protesting Indian students comment that the government

I ?

must pay for their education, or else the government is held responsible for these

Indians being on welfare.

I

I

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Reprinted with the permission of the Editor:

Hurlbert, Earl L., & Hurlbert, Margot A.

(1990, March). Freedom of expression outside the classroom.

Scrutiny, 3(7),

1-5.

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2 - Reading 2.2

?

, ?

Ear un bert & Margot Iilb,ert

?

I

Do you suppose non-Indian students could use this crutch to gain the suppOit of

the government and the bleeding hearts? Pierre Cadieux had a good answer,

of

saying

money

all

(especially

Canadians must

now when

realize

the

the

minister

government

of finance

treasury

is determined

is not a bottomless

to decrease

pit

?

I

the national deficit).

Many Canadians feel Indian issues are Canad&s "sacred cow." No individual

?

I

or institution, including government departments, dares question Indian issues. It

?

1

appears that if one dares to be so blasphemous, he or she will receive the wrath of the

bleeding

I believe

hearts.in

equality

?

for all Canadians. As long as non-Indians are pressured

I

to support most of the Indian population due to legalized discrimination or special

status,

Non-Indian

resentment

Canadians

and discontent

will not

will

tolerate

prevail.

being

?

treated as foreigners in their

I

own country. I owe no Indian one red penny just because his or her ancestors were

here before mine.

?

Earnest J. Burtniak, Kamsack

I

The events described below are confirmed by Mn

.

Burtniak to be accurately and

fairly stated.

(1) Two days after the letter was published, approximately 275 Indian students

form the Cote and Keeseeboose Bans were pulled

,

out of Kamsack classrooms.

Spokespersons for the Bands demanded that Mr.

?

urtniak be fired and his wife

(who teaches in Kamsack) be suspended without pay. Apparently the demand for

Mrs. Burtniak's suspension was based on the fact that she is the spouse of 'the

author of the

Leader-Post

letter. Spokespersons for the Bands and' for the

Federation of Saskatchewan Indians called Mr. B'urtniak's letter racist.

(2) During the following week, the Acting Director of Education for the

Kamsack School Division stated that in order to maintain effectiveness in Mr.

Burtniak's former classroom, the classroom teacher had been reassigned duties

in the School Division Office. This did not meet with the Indian Bands' approval

so, therefore, Mr. Burtniak had indicated to his employer that he was planning to

retire June 30, 1989.

(3) The Cote Indian Band immediately establihed temporary classrooms on

the Reserve and made plans for a permanent withdrawal of Indian students from

the Kamsack School Division. The School Division Board began to work on how to

deal with the loss of approximately 160 students from the Division's schools. The

Division receives about $3,800 per native student per year from the Department of

Indian Affairs. According to media reports, staff cuts might involve as many as

ten teachers.

(4)

During the latter part of May, the Kamsack School Division Board accepted

?

I

the resignation of Mr. Burtniak, effective June 30,4989. At the urging of legal

counsel for the Saskatchewan Teachers' Federation,: Mr. Burtniak wrote letters of

apology to the Band Councils and to the Kamsack School Division Board. It is Mr.

Burtniak's opinion that throughout the crisis the main concern of personnel with

the Saskatchewan Teachers' Federation was to try and appease Mr. Burtniak's

accusers and critics rather than to support the concept of free speech.

(5)

During his teaching career of 31 years, which included teaching in the

Yukon, Mr. Burtniak had successfully taught Indian students for many of those

years. Although the Burtniaks were harassed by several telephone calls, Mr.

Burtniak received much support from all segments of society including clergy,

I

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Freedom

politicians,

of Expression

professional

Outside

people,

the Classroom

farmers,

?

and trades people; however,

Reading 2.2

some

—3

people, fearing possible reprisals, would not identify themselves. Many supporters

apologized for not speaking out openly, fearing loss of employment, loss of

I

?

business, negative criticism by the media, and harassment. According to Mr.

Burtniak, most of these supporters said they could see nothing racist in his

Leader-Post

letter and expressed concern about infringement of freedom of speech.

I

(6) As we approach the first anniversary of Mr. Burtniak's May 9th letter to the

Leader-Post,

Mr. Burtniak is active as a Sales Representative with the CAA

Saskatchewan Motor Club, Mrs. Burtniak continues to teach for the Kamsack

School Division Board, and the Cote Indian Band continues to plan for the

I

construction of permanent school facilities on the Reserve.

Freedom of Expression in Canada

I ?

The constitutional guarantee to freedom of expression is found in s.2 of the

Charter of Rights and Freedoms and reads as follows:

I

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.

I

Nevertheless, freedom of expression is not an absolute or unqualified right; it

must be balanced against other considerations such as the possibility of uttering a

slanderous defamation. With reference to freedom of the press and the written

I

word, the author's freedom is also constrained. Assuming that most of us want to

stay out of court, we would want to avoid publishing material which is libelous or,

e.g., to avoid willfully promoting hatred against an identifiable group.

l

A major and complicating factor in the Burtniak case is the alleged racism

c

ontained in his letter to the Leader-Post. The Saskatchewan Human Rights Code

contains two sections of direct relevance to this case:

5. Every person and every class of persons shall, under the law, enjoy the right

to freedom of expression through all means of communication, including, without

limiting the generality of the foregoing, the arts, speech, the press or radio,

television or any other broadcasting device.

14.(1) No person shall publish or display, or cause or permit to be published or

displayed, on any lands or premises or in a newspaper, through a television or

radio broadcasting station or any other broadcasting device or in any printed

matter or publication or by means of any other medium that he owns, controls,

distributes or sells, any notice, sign, symbol, emblem or other representation

tending or likely to tend to deprive, abridge or otherwise restrict the enjoyment by

any person or class of persons of any right to which he is or they are entitled under

the law, or which exposes, or tends to expose, to hatred, ridicules, belittles, or

otherwise affronts the dignity of, any person, any class of persons or a group of

persons because of his or their race, creed, religion, colour, sex, marital status,

physical disability, age, nationality, ancestry or place of origin.

(2) Nothing in subsection (1) restricts the right to freedom of speech under the

law upon any subject.

The International Convention on Elimination of all Forms of Racial

Discrimination, adopted by the United Nations in 1965, and ratified by Canada,

defines the expression "racial discrimination" as follows:

Any distinction, exclusion, restriction or preference based on race, colour,

descent, or national or ethnic origin which has the purpose of nullifying or

H

11

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4 - Reading 2.2 ?

•'$arl Hurl bert & Margot 4tI1hert

impairing the recognition, enjoyment or exercise on an equal footing of human

rights and fundamental freedoms in the political, economic, social, cultural or any

other field of public life.

Was the

Leader-Post

letter of May 9, 1989 racist-inspired? Does any expression

in the letter seem to nullify or impair

on an equal footing, of native

rights? Is there anything in the Burtniak letter .which tends to expose Indian

people to ridicule, belittlement, or hatred? Is there any evidence of malice (spite,

ill-will, desire to injure) in the language used? Conversely, is the author guilty of

anything more than Fair Comment? That is, would a court conclude that the

treatment of subject matter in the letter is fair, that it deals with an important

matter of public interest, that it was a statement of opinion based on facts, and that

it did not impugn the moral character or personal lifestyles of Indians,

individually or as a group? We, who are most interest in this case, can only

speculate; courts themselves, however, often disagree on the answers to these

complex questions.

The Charter of Rights and Freedoms guarantees and protects the rights of

individuals against unjust actions by any government, including local

government (a school board). In

R.V. Keegstra 1 ,

Kerans J.A. for the Alberta Court

of Appeal stated at page 13, "In my view, imprudent promotion of hatred falls

within the definition of freedom of expression" as contained in s.2(b) of the

Charter. Justice Kerans points out that between calculated falsehood on the one

hand (which is not protected by the Charter) and innocent error on the other

(which is protected) lies the middle ground of what one might call imprudent

speech. He states that s.2(b) should be understood-as protecting both innocent error

and imprudent speech.

At page 24, Justice Kerans quotes

Handyside v. U.K

(1976) to state:

Freedom of expression . . . is applicable . . . to . . . "ideas" . . . that offend, shock or

disturb the state of any sector of the population. Such are the demands of that

pluralism, tolerance and broad-mindedness without which there is no "democratic

society."

Justice Kerans goes on to state that essential to the idea of toleration in a

democracy is that we all must learn not to react badly to what we hear—to permit

it to be said and yet to reject it. He concludes at page 28: "It might be said that the

mere utterance of, say, racial slurs is offensive. Of course it is, but, as I took some

pains to say earlier, free speech cannot be equated to polite speech."

Can we go so far as to say that at law the contents of Mr. Burtniak's letter

constitute calculated falsehood? Can it be said that this letter should not receive

protection under the Charter or Rights and Freedoms? If it were established that

the letter is protected by s.2 of the Charter of Rights and Freedoms, any attempt to

suppress the contents of the letter or to discipline Burtniak as a result of the letter

must be demonstrably justified as a reasonable limit prescribed by law on freedom

of expression (s.1 of the Charter).

Contractual Relationships in Teacher Employment

In the realm of public education a teacher's freedom of expression outside the

school is constrained, like that of all employees, .by certain requirements of trust

and confidentiality owed to the employer. Any -expression which undermines

employment relationships or other conditions necessary to the effective operation

of the school system (such as an environment conducive to the best possible

education opportunity of students) could be challenged at law. Notwithstanding

---

I

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I

Freedom

the importance

of Expression

and significance

Outside the Classroom

of the principle

?

of law just stated, courts

Reading

usually

2.2 —5

consider carefully the subject matter at issue and the public interest in preserving

informed debate in relation to that subject matter. The court may find this factor to

I

be of such significance that it outweighs any resultant strain on interpersonal

relationships in the workplace. However, if the result was that a teacher's day to

day performance or the daily operation of the school were substantially impeded,

the courts might take a different view. They might be reluctant to accord a teacher

I

in such circumstances the same protection and benefit of free expression at law as

they would to another person (non-teacher) who was merely participating in

vigorous and uninhibited public debate.

Teaching is different from most other types of employment in one major

respect. Not only are teachers expected to carry on their daily tasks within

parameters determined by their employer, but also, they are expected to provide

role models, personification of exemplary conduct, both in their professional and

private lives, to the children they teach. Case law, statute law, board policy, and

professional codes of ethics all reflect evidence of complex contractual obligations

owed by the teacher to his employer, to the state, to parents, and to children. For

example, as corporate entities (artificial persons) both the employing school board

and the professional teachers' association have a legal identity with corresponding

duties, rights, responsibilities, and reputations.

The question which then follows is, has Mr. Burtniak breaches a contractual

obligation, recognized in law, to either his professional association or his

employer? The 1989 Code of Ethics for Saskatchewan Teachers' Federation

members includes the following items:

3. Commitment to the Profession

(a) to conduct one's self at all times so that no dishonour befalls the individual

teacher or the teaching profession.

(k) to act to eliminate discrimination in education.

4.

Commitment to the Community

(b)

to keep the public informed of and appropriately involved in decisions about

educational programs.

(c)

to participate in community and professional activities, provided there is no

unresolved conflict with obligations to students.

In Cromer v. British Columbia Teachers' Federation and Attorney-General of

British Columbia,

the constitutional validity of the British Columbia Teacher's

Federation Code of Ethics in relation to the Charter's guarantee of freedom of

expression was analyzed by the B.C. Court of Appeal. The Court held that freedom

of expression is not absolute, and that a balance of interests must be applied

between the right to freedom of expression and the requirements of the Code of

Ethics.

Although in the Cromer case the Court of Appeal found in favour of the Code of

Ethics (regulating criticism by one teacher of another), the Court made it clear

that in different circumstances, s.2.(b) of the Charter of Rights and Freedoms

could override the Codes of Ethics. The B.C. Teachers' Federation Code of Ethics

does not preclude criticism of one teacher by another but does provide procedures

for being critical in a professional and constructive manner. The court,

consequently, was interested in all the circumstances of the criticism given by one

teacher of another in this case and concluded at pages 641-42:

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6 - çzdig 2.2 ?

Earl Hurl bert & Margot Huribert

If the petitioner's comments had been directed to the subject-matter of the meeting,

that is, the teaching of aspects of human sexuality as part of the guidance

programme for grades 7 and 8, then the public interest in letting her, speak out

would have overridden the Code of Ethics, . . . But the petitioner's comments were

entirely personal criticisms of the other teacher as a teacher.2

In ,R.V.

Keegstra,

Kerans J.A. at page 26 quotes the Cohen Committee

,

as

follows:

It is our opinion that the Canadian people already have made the decision that as

among conflicting values, preference must always be given to freedom of

expression rather than to legal prohibitions directed at abuses of it. This is not to

say that freedom of expression is regarded as an absolute, but only to insist that it

will be esteemed more highly and weighted more significantly in the

,

legislative

scales, so that legal marks of the borderline areas-will always. be

such as to permit

liberty even at,the cost of occasional license.

What of Mr. Burtniak's contractual obligations to his employer, the Kamsack

School Division Board of Education? The leading American case, which may

helpful if not persuasive, is

Pickering v. Board of Education

3

in which Marvin

Pickering was dismissed by the school board for statements he made in a letter to a

newspaper editor. The letter criticized the board's allocation of school funds

between educational and athletic programs and the board's way of informing or

not informing the public of the real reason why additional tax revenues were being

sought for the school. some of the statements in the letter were found to be false,

but they were made as a result of faulty research rather than being knowingly,

maliciously, or recklessly false.

This was the first full opinion given by the Supreme Court of the-United States

dealing with a teacher's freedom of expression in a case not involving some aspect

of loyalty or alleged subversive activities. Unequivocally rejected was the notion

that teachers may constitutionally be compelled to relinquish their rights -to

freedom of expression, to comment on matters of public interest in regards to the

operation of the public schools. This position was hedged somewhat by the

requirements that the statements not be directe,d at someone with whom the

teacher is in close contact through his employment and that the statement not

affect either the maintenance of discipline by. immediate supervisors or harmony

among co-workers. Only in a case where the need for confidentiality is very great

would public statements be a ground for dismissal.

In Marvin Pickering's case, it was found that his employment relationships

with the board and the superintendent were not of a kind of close working

relationship for which it can persuasively be claimed that personal loyalty and

confidence are necessary for their proper functioning. Similarly the statements

did not impede his performance in his daily classroom duties or the regular

operation of the schools. The court went on to state that in the mater of school

funding it is essential that teachers be able to speak out freely on such questions

without fear of retaliatory dismissal. This freedom enhances the informed

decision making of the electorate. It was left open as to whether statements which

were made knowingly or recklessly to be false would receive constitutional

protection if not proven to have harmful effects. .

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I

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Freedom of Expression Outside the Classroom

?

Reading 2.2 - 7

I

One part of the court's opinion stated that the statement must not be direct

towards a person with whom the teacher would be in contact during his daily

work as a teacher. A later part of the opinion, however, limited this somewhat to

I

those with whom the teacher has a "close working relationship: demanding

personal loyalty and confidence" and superior-subordinate relationships of a

"personal and intimate" nature which would be impaired by public criticism.4

Thus, it remains unclear as to exactly whom the teacher may speak against and

I

whom s/he may not.5

If the American test were to be applied under the Charter of Rights and

I

Freedoms, would Mr. Burtniak's letter be found to be directed at someone whom

the teacher was in close contact with through his employment? Did the effect of the

letter impede his performance in daily classroom duties or impede the regular

operation of schools? It would appear from the Indian Bands' resulting actions

I

that the regular operation of the schools was affected. Therefore, if the American

test was applied strictly, Mr. Burtniak's letter would not be protected. However,

were the actions by the Indian Bands reasonable? Was the

Leader-Post

letter the

I

actual cause or the real reason for the mass exodus of Indian students from

Kamsack classrooms? Would a court adjudicate this case on the basis of what

parties should have done as opposed to what actually occurred?

Implications for Educators

If Saskatchewan is to continue to be the kind of place we want for ourselves and

I ?

our children, we must use and protect our legal rights—rights which have evolved

through centuries of trial and error and struggle.

On the one hand it is of grave concern to many of us that any criticism of or

I

disagreement with government policy/action regarding a minority group in

Canada so often results in accusations of racism or prejudice. On the other hand

we support the obvious desire of most Indian people to achieve, to be responsible

I

human beings, to be independent, and proud of their heritage. Many of us would

go further and extend the hand of friendship, too often on the basis of compassion,

but also on the basis of sincere admiration or respect.

I

Part of the solution to this complex issue, we think is to work hard at

recognizing the difference between Fair Comment and cruel criticism. If we are

so fearful of giving offence that we are reluctant to speak out when our own best

interests or the public's demand it, then our hard-won rights become, at best,

I

impotent and at, worst, eroded. Surely there is a time and place when it would be

appropriate, for example, to acknowledge the existence of historical evidence

which indicates that many British people are descendants of primitive and cruel

I

barbarians, that the forefathers of many Scandinavians were often involved in

pillage, rape, and slaughter, that black Africans once practiced cannibalism, that

many white North Americans once practiced slavery, and that some North

American Indian tribes were once illiterate nomadic savages living in severe

I

conditions of hardship and squalor.

I

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8—

Reading2.2 ?

Earl Hurlbert & Margot HurIbert

Notwithstanding what has been stated above, it is always appropriate to speak

about minority groups or majority groups as fellow Canadians, to speak to

individual members of either group as to a brother or sister. How we treat our

brothers and sisters on the street, in our schools, through the media, or by

wearing lapel pins is often symptomatic of our innermost feelings. Let us continue

to nurture our best aspirations and to support each

k

other by being dissatisfied with

anything less than what we would want for ourselves.

Earl L. Hurlbert,

B.Ed., M.Ed. (U. of Sask.), Ph.D. (U. of Alberta). Professor Hurlbert is

the chair of Educational Administration in the Faculty of Education, University of Regina

with responsibility for instructing graduate classes in school law.

Margot A. Huribert,

B.Adrn. (U. of Regina), LL.B. (Osgoode Hall, Toronto). Ms. Huribert

is employed with the McDougall, Reading Law Firm in Regina.

Notes

1.

R.V. Keegstra (1988), 60 Alta. L.R. (2d)1 (Alta, C.A.).

2. Re

Cromer and British Columbia Teachers' Federation et al.

(1986), 29 (D.L.R.) (4th)

641 (S.C.C.A.).

3.

392 U.S. 563 (1968).

4. Ibid.,

570.

5.

Hurlbert and

Hurlbert,

School Law Under the Charter of Rights and Freedoms

(Calgary: The University of Calgary Press, 19879), 210.

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Reading 2.3?

AiDS in Schools: A Model of Enlightenment

AIDS has not only taken a tragic toll in terms of human suffering and death, but it

has also evoked serious ethical and legal issues. Society has been prompted to re-

examine the notions of equality and human dignity from a new perspective, one

attended by deep-seated fears and prejudices. This article considers the AIDS

phenomenon in the context of the educational system, specifically focussing on the

competition of rights and responsibilities that emerges with the presence of AIDS

virus (HIV) carriers or sufferers in the school environment. Rights of access to

education, non-discrimination in educational treatment and employment and

disclosure of information are among the important issues discussed. The article

attempts to place these issues within a legal framework. While drawing largely

from Nova Scotia legislation and policies to exemplify, the discussion is easily

universalizable.

Le SIDA n'a pas seulement eu des effets tragiques: souffrances humaines et pertes

de vie, mais il a également soulevé graves questions d'ordre éthique etjuridique. II

nous a poussé

a

réexaminer les notions d'egalité et de dignité de la personne dans

une perspective nouvelle, tout en éveillant de très vieilles peurs et des préjugés

tenaces. Le present article aborde le phénomène du SIDA dans le contexte du

système d'education; il porte tout particulièremerit sur le conflit entre les droits et

les responsabitities suscité par Ia presence dans le mileu scolaire de porteurs du

virus du SIDA ou de personnes atteintes de cette maladie. II est question entre

autres des droits tels que l'accès

a

l'éducation, Ia protection contre Ia

discrimination tant

a

l'école que dans le milieu de travail et la communication de

renseignements personnels. L'auteur tente de situer ces questions dans un cadre

juridique. Bien que ses exemples soient tires en grande partie de Ia legislation et

des politiques de Ia Nouvelle-Ecosse, il est facile, en extrapolant, d'en degager le

portée générale.

- ?

1. Introduction

I

I was supposed to go back (to school to teach) on October 19, but things got out of hand.

Many parents were planning to send their children but they began to hear about

threats and violence.

I

Eric Smith—November 9, 1987

Rarely a day passes when the public is not inundated with new revelations

about AIDS. This deadly disease is now forcing us to confront some of the most

I

difficult legal, ethical, moral, political and medical challenges in decades.

Nowhere are these challenges more sensitive and multifaceted than in our

schools.

I

The province of Nova Scotia, both through public and private responses to this

issue, found itself in the midst of intense controversy that, at least in the early

stages, resulted in confusion, paranoia and misguided political responses. One

I

can only speculate on the quality of public debate and response that this issue will

evoke in the coming months and years. However, it is hoped that the worst is over

and that the age of public and political enlightenment is dawning.

Reprinted with permission from:

Graham J. (1990, January). AIDS in schools: A model

of enlightenment and tolerance?

Education and Law Journal, 2,

299-338.

.1

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2— Reading 2.3

?

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?

.

... ?

. ?

I..Grahani

The establishnent of the provincial AIDS Task Force and a permanent Nova

Scotia Commission on AIDS were regarded by some as positive (albeit late)

responses by the government. While cynics suggested that these initiatives were

intended merely to deflect political criticism, these bodies have the potential to

educate the p\i'blic and to set tolerant and thoughtful standards and guidelines for

dealing with'.AIDS, provided the provincial government is willing to accept their

recommeiTdations, and the public is willing to deal with the various issues that

AIDS poses:

AIDS; is not just another disease. It is a fatal illness that, because of its most

common mode of transmission, the mortality rate

,

of virus carriers and the make

up of so-called high risk groups, carries various stigmas that make it particularly

difficult to- deal with in the school environment This article raises some of the

many legal issues and policy choices that educators, politicians, parents, children

and school administrators must eventually deal with.

Limited time and space do not permit a discussion of all of the potential issues,

or even êxhausting the issues that are raised. Most of the sub-topics presented

could very well from the basis of an entire article Instead, a decision was made to

present. a broad view. Moreover, the issues will be discussed in the context of the

writer's own legal jurisdiction—Nova Scotia. It should be noted, however, that

despite some provincial legislative anomalies, most of the issues raised and

conclusions posited are nationally relevant, at least in a general sense.

(a) Introduction

Many of the legal issues concerning AIDS, be they subsumed in the Charter of

Rights,' "just cause" for dismissal under a collective agreement, the right to

refuse to work with an AIDS victim or virus carrier, or the right to refuse to send

children to school, will ultimately turn on the state of medical knowledge

regarding transmission of the disease and treatment or cure. Most often, those

who fear the disease are concerned that they, ortheir children, will be exposed to

the deadly virus, and they quite naturally wish to be informed about the modes of

transmission. However, as has been discovered recently in Nova Scotia, even the

most informed members of the public will not always accept medical advice from

sources that they have relied upon all of their lives.

2

Instead, they ask medical

science for a standard of 100 per cent certainty that new means of transmission

other than those already identified will never be discovered.

In a recent article

3

Professor W.F. Foster of the McGill Law School

summarized the role and challenges facing educators in relation to AIDS as two-

fold:

The first is to determine what role, if any, educators should play in stopping the

spread of the virus which is the cause of the disease and to develop appropriate

strategies to accomplish their mission. The second is to determine how best they

can reduce, if not eliminate the fear, the paranoia, and the inappropriate

behaviours which the presence of the virus or the disease in a member of the school

population (student or staff) generates in other rnmbers of the school community

and their families.4

Foster also suggests that these challenges must be met, while preserving a

reasonable balance between the rights, needs and wishes of the individual infected

by the AIDS virus and the nights, needs and wishs of others in the community.5

I

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Aids in Schools: A Model ...

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Reading 2.3— 3

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(b) What is Aids?

AIDS stands for acquired immune deficiency syndrome. The term AIDS describes

only the most serious form of an infection which is caused by a specific virus

I

called the human immunodeficiency virus, or HIV.

6 The virus attacks the body's

immune system, leading to its collapse, thus leaving the person vulnerable to a

number of infections and cancers.7

I

The infections can take many forms:

1. a carrier form in which a person has no symptoms;

I

2. forms in which a person has mild to moderate symptoms that may clear up,

continue or get worse; and

3. ?

the full-blown symptoms of AIDS, including Kaposi's sarcoma—a rare skin

cancer—and Pneumocystis carinii pneumonia (PCP)—an unusual lung

I

infection and a brain infection resulting in loss of concentration, confusion and

disorientation.8

I

HIV infection does not mean a person will necessarily have AIDS; however, in

1986, the U.S. National Academy of Science estimated that between 25 to 50 per

cent of those infected will develop AIDS eventually.

9 Most experts now believe that

all carriers of the HIV virus will eventually develop AIDS.'° Since the virus can

I

potentially remain dormant for many years, carriers of the virus cannot always be

classified as being ill in the traditional sense. The only manifestation of illness

that they have is the ability to transmit the disease to others. As will be discussed

I

further in this article, this phenomenon may well confuse the legal issues,

especially those related to dismissal for cause in employment, and discrimination

•

based on physical disability or impairment.

I

(c)

Transmission and High Risk Groups

The AIDS virus (HIV) is carried in bodily fluids, particularly the blood, semen and

I

vaginal

fluid of all infected persons, regardless of their apparent state of health.11

•

It is spread when one of these body fluids enters another person's body

(bloodstream).

12

There is no evidence that AIDS can be transmitted through air,

water, food or casual body contact. Although the virus has been found in very

I

small traces in tears, saliva and urine, there have been no cases to date of anyone

becoming infected from contact with these bodily fluids. The amount of virus

I

present in these fluids is thought to be too small to cause an infection.13

So far sexual activity is the most common way of passing the virus to another

person.

14

However, other methods of transmission include:

I

i.

sharing of contaminated needles in intravenous drug abuse;

2. ?

transmission by an infected mother to her baby before or during birth; and

3. ?

contact with infected blood or body fluids by health and personal service

I

workers when the virus enters the body through cuts, sores or accidental

needle injuries.

Transfusion or injection of infected blood or blood products has been identified as a

I

means of contracting the virus, but this mode of transmission is now extremely

rare. Since November 1985, the Canadian Red Cross tests every unit of blood

I

collected for HIV.15

While some cases of AIDS virus (HIV) transmission still remain unexplained,

medical experts continue to insist that, of the more than 162,530 AIDS cases

I

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4 - Reading 2.3

?

..-.-.

?

I.

Graham

reported world-wide, no known cases have established that the virus'an be spread

through casual contact.16

Unfortunately the reference to "no known cases" continues to raise fear of the

unknown—will I be first? These fears are no doubt heightened by the devastating

nature of the disease, its rapid growth and the difficulty in finding a cure or

effective treatment.

17

In addition, some experts believe that public fear and

paranoia are exacerbated by the general lack of sensitivity to the highest risk

groups—homosexual and bisexual men. In the U.S., this category accounts for

approximately 60 per cent of all reported cases.18

The association between AIDS and homosexuality is said to have hindered both

the public educational process and the public acceptance of infected individuals.

The recent events concerning the case of Nova Scotia teacher, Eric Smith, are a

prime example, since it has become virtually impossible to distinguish between

public paranoia related to the disease and homophobia. Indeed, much of the so-

called educational material about AIDS used during public meetings in Shelburne

County (where Smith taught), characterized AIDS as a "gay plague" and the

epidemic as God's retribution for unnatural sexual promiscuity.

19

Had the spread

of AIDS been more balanced, or spread evenly among males and females in North

America, as it has been in Africa, one wonders whether public attitudes would be

the same.

(d) How Serious is AIDS?

On a world wide scale, the HIV epidemic is still spreading rapidly. It

will

continue

to spread, and more Canadians, male and female, children and adults,

will

become infected.20

AIDS is a world-wide phenomenon. In addition to Canada and the United

States, AIDS has been reported in 28 European .countries, at least 47 African

countries, the Caribbean, South America, Australia and several other places

including the Middle East and Asia.21

The World Health Organization (WHO) now estimates that there are over

162,000 cases world-wide, and five to ten million are infected with the AIDS virus

(HIV).22

In Canada there are over 2,800 cases of people who have been diagnosed as

having AIDS, 1,620 of whom have died.

23

In Nova Scotia, as of June 22, 1989, there

have been 42 cases of AIDS reported.

24

WHO predicts that by 1991 there will be

from 500,000 to 3 million people with AIDS and that up to 100 million people could

be infected with HIV.25

There have been over 97,000 confirmed cases of AIDS recorded in the United

States since 1981 and it is estimated that by 1991 there will have been 270,000 cases

reported.26

It is further estimated that 50,000 Canadians and 1.5 million Americans have

been exposed to HIV. These are the carriers of the virus, all of whom are capable

of transmitting it.27

These data clearly show that AIDS poses a tremendous threat in schools and in

Canadian society generally. While school children are not presently members of

so-called high risk groups, the disease is spreading to all parts of society. Schools

have an obligation to educate students and parents

1

and to provide an example of

tolerance and compassion to victims.

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I

I

I

Aids in Schools: A Model ...

?

(a) Introduction

Many different types of employment relationships exist in the school environment.

I

The most common of these relationships results from the collective agreement or

unionized employment. This section is designed to consider the possible effects

that AIDS may have on employment in schools. Since unionized employment of

I

teachers is most common, emphasis will be placed on this relationship.

28 It will

become apparent that the basis for dismissal or termination in the context of

different unionized employment in schools will not vary substantially. There may,

I

however, be cases where the pressure to dismiss an employee will be greater

depending on factors such as contact with students and sexual orientation.

Consideration will also be given to non-contractual remedies and protection,

I

specifically human rights legislation and the Charter, in the context of pre-

employment discrimination.

Finally, the rights of fellow employees to refuse to work with persons who have

I

AIDS or who are carriers of the HIV virus, will be canvassed.

(b)

Teachers' Employment

I

The employment of teachers in Nova Scotia is governed by a complex inter-

relationship of several different acts of the legislature, as well as provincial and

local collective agreements, referred to as professional agreements. The first of

I

these acts is the Teachers' Collective Bargaining Act

29

which performs essentially

the same function for teachers as the Trade Union Act

30

does for other unionized

employees in Nova Scotia. 31

Under section 12(1) of the Teachers' Collective

I

Bargaining Act, the union is recognized as the exclusive bargaining agent for

teachers in Nova Scotia.32

I

One of the anomalies of the Teachers' Collective Bargaining Act is that, unlike

other provinces, there are two employers of teachers in Nova Scotia. Section 2(b) of

the Act distinguishes between the Minister of Education and the school boards as

employers.

33

This distinction results in a two-tiered series of negotiations with

I

some issues such as salaries, medical plans, and general terms and conditions of

employment being subject to provincial negotiations, while others, including sick

leave, sabbatical leave, and other terms not included in a provincial agreement

I ?

being the subject of local negotiations between the Nova Scotia Teachers' Union

and the local school board.34

The employment relationship governing teachers is also affected by provisions

' in the Education Act. 35

Many of these provisions, especially those outlining duties

of the employer and duties of teachers, are mirrored in the provincial professional

agreement.

36

I

Once a professional agreement is signed, there is no longer any scope for

individual negotiations, although the law governing individual contracts of

employment still has limited application to school superintendents and others who

I

are outside of the collective bargaining process.

37

However, school boards, the

Nova Scotia Teachers' Union and the Minister of Education, are entitled to enforce

any rights or benefits granted under local or provincial agreements.38

I

Like the Trade Union Act, the Teachers' Collective Bargaining Act contains a

provision in the agreement for final settlement of all differences between the

parties "by arbitration or otherwise."

39

This type of provision, referred to as

I.

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6 -

Reqding 2.3 ?

0 ?

J. Graham ?

-

"consensual arbitration", allows the parties to appoint an arbitrator to. settle their

differences arising from the interpretation, application or administration of the

agreements. Therefore, employer action related to teachers with AIDS, be it

termination, suspension or some form of discrimination, will likely' be settled

through arbitration (or through the Education Act appeal process), rather. than by

resorting to the courts. In fact, the courts will only become involved if the

arbitrator somehow commits an error of law or jurisdiction.

0

In other words,

judges will not ordinarily second-guess the arbitrator on the merits of the dispute.

In Nova Scotia, the arbitrator is empowered to substitute any other penalty that

appears just and reasonable, in an arbitration dispute.40

In addition to the arbitral remedial route, section 76 of the

.

!Education Act

outlines procedures that can be used to challenge terminations,,

:

discharges sand

suspensions for different classifications of teachers. These provisions have been

incorporated into Article 19 of the provincial collective agreement and generally

include various requirements for notice, hearings and reasons prior to the final

determination of the teacher's rights.

?

0

The decision of the board can also be appealed under section 70(7) of the

Education Act, to a board of appeal appointed by the Minister of Education. This

board has the power to confirm, vary or revoke the suspension, discharge or

termination or tfle contract.

As will be discussed later in this section, although the procedures may vary

depending on the forum through which a teacher chooses to contest a termination,

dismissal, or other sanction under the collective agreement, the standard applied

to serious sanctions is usually the same—"just cause.1141

(c) School Employment Policies and AIDS

Before considering the standards that will be applied when determining "just

cause" for dismissal, suspension, or termination of teachers' contracts, it is

important to outline the policies, if any, that have been developed by the employers

(the Department of Education and the school boards) in relation to persons who

either have AIDS or have tested positive for the AIDS virus (HIV).

In an article written in 1984,

42

Arthur S. Leonard, a leading U.S. Legal

commentator on the subject of AIDS and employment discrimination, suggested

that there were four categories of AIDS inflicted individuals, each of which may

present different issues in the workplace:

?

0

1.

Those who have been exposed to the virus but who display no physical

symptoms; ?

0 ?

0

2.

Those who display symptoms characterized as warning symptoms that AIDS

may develop;

3.

Those who have contracted an opportunistic infection indicating development

of the syndrome but do not require hospitalization and are physically able to

work;

4.

Those who have contracted multiple infections or require extended hospitaliz-

ation, and have' been so weakened by such infetions and the syndrome that

they are relatively immobile.43

Leonard further suggested:

?

0

Discrimination in the work place is primarily experienced by members

of

the first

three categories. It is unlikely that an individual in category

4

would be capable

of

ci

---

Aids in Schools: A Model ...

?

Reading 2.3— 7

I

I

performing continued work. Those in the second and third categories are the

I

individuals who were presently encountering the most serious discrimination

problems. In addition, those in the first category, once identified, may well

encounter discrimination similar to categories 2 and 344

I

While

it is clear that Leonard's classifications cover a great number of

situations where employees will encounter discrimination, he has limited his

I

categories to persons who have at least contacted the AIDS virus (HIV). Given the

recent experience with Eric Smith in Nova Scotia as well as the potential for

litigation in AIDS-related employment, it would appear that the so-called "high

I

risk groups" are also quite vulnerable to pre-employment discrimination. In

particular, homosexual men, or those who may be thought to be homosexual, may

be discriminated against simply because employers wish to avoid the potential

I

social, political and legal implications of having a person infected by the virus in

their employ. 45 For example, if a man who was known to be homosexual applied to

the Shelburne District School Board for a teaching position in 1989, would his

I

application

for employment be seriously considered? In this scenario, the school

board is under no obligation to explain why the applicant was not considered, let

I

alone tell him that "sexual orientation" was the reason for his not being hired.

One of the principal ways to avoid the problem of discrimination in the

employment of teachers with AIDS, or who have tested positive for the AIDS virus

I

(HIV), is to have the Department of Education and individual school boards adopt

specific policies addressing the issue. So far, the Nova Scotia Department of

Education has not specifically adopted an employment policy related to AIDS.

I

Instead, they contend that since AIDS is a "health problem", the policy of the

Department of Health would apply.

46 Moreover, they suggest that AIDS policies

are the responsibility of individual school boards as opposed to the provincial

I

Department of Education. While it is clear that individual school boards bear

substantial responsibility for formulating AIDS policies, it seems unfortunate that

the Department of Education is not willing to formulate its own employment policy

I

in the same way that a private employer might, or at least set minimum

standards that can be used as a basis for school board policies.47

It is also interesting to note that while the Department of Health policy deals

I

extensively with precautions for staff and students exposed to body or blood fluids,

control measures for students, confidentiality and school attendance for students,

it does not specifically state any policy in regard to employment of teachers. In

other words there is no specific statement as to whether a person infected by the

AIDS virus, or with AIDS, has the right to continue employment, the right to

confidentiality or even the right to specific sick benefits.

I

In

May 1987, the Nova Scotia Teachers' Union adopted the following policies:

1. ?

52.2. 1—the identity of a teacher with AIDS should be protected;

I

2.

?

5.2.2.2.—teachers infected with AIDS should have the right to continue their

employment; and

I

3. ?

5.2.2.3.—where a teacher with an AIDS-related illness becomes too sick to

work, full access to sick leave, long term disability and medical benefits should

be ensured.48

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8 - Reading 2.3

?

1. Graham

New Brunswick also recently adopted an AIDS policy containing the-following

provisions:

Policy 4.0

The identity of school personnel infected with AIDS virus shall be confidential.

Guidelines:

4.1 The confidential nature of the identity of any sôhool personnel infected with

AIDS virus shall be maintained at all times. Dissemination of information shall

be restricted to those who need to know.

Policy 5.0

School personnel infected with AIDS virus shall have the right to continue their

employment.

Guidelines:

5.1 An employee shall not be excluded from his/her employment because of AIDS

virus infection unless the District Medical Health office so advises.

5.2 Each employee with AIDS infection shall be assessed on an individual basis by

the attending physician and the District Medical Health Officer, talking into

account the employee's psychological and behavioral as well as health status.

5.3 Where the physical condition or behaviour of any employee infected with AIDS

virus poses a health or safety risk because of his/her AIDS virus related condition,

that person may be excluded from his/her employment only after recommendation

by the District Medical Health Officer and in accordance with his/her collective

agreement.

5.4 An uninfected employee who has a family member with AIDS virus infection

shall not be excluded from his/her employment for this reason.49

Explicit policies like these serve many worthwhile purposes,

50

two of which

include:

1.

setting a standard and an example that can be used by individual school boards

in developing their own policies; and

2.

setting a standard that can be used by arbitrators, school boards, and appeal

boards appointed by the Minister of Education, to determine whether there has

been "just cause" for suspension or termination.

The second purpose will be discussed in more detail in the next section.

So far 14 of 21 school boards in Nova Scotia have adopted an AIDS policy. Other

boards are being strongly encouraged; especially by the Nova Scotia School Boards

Association and the NSTU, to develop policies on AIDS.

51

The extent to which the

Department of Education is participating in this process is not clear.

(d) Employment Discrimination and Termination

(i) Possible basis for discrimination and termination

It has been suggested that the key aspects of AIDS relevant to concerns of

employers, fellow employees, and business customers centre on infectiousness

and physical ability.

52

However, in schools, as already indicated, discrimination

based on sexual orientation, both in employment and pre-employment, should not

be overlooked. ?

I,

I

---

Illness or actual disability had nothing to do with the predicament of Eric

I

Smith. Nevertheless, it is extremely difficult to identify precisely what role

infectiousness and/or sexual orientation played in his troubles. It might be argued

that homosexuality was not an important factor since the community supposedly

I

was aware that he was homosexual before it was discovered he tested positive for

the AIDS virus (HIV).

53

However, many of the public meetings organized in

Shelburne County to oppose Mr. Smith's return to the classroom, featured

I

fundamentalist religious videos that characterized AIDS as a disease sent by God

to punish those who engaged in what was felt to be sexually promiscuous

behaviour, especially homosexuality.

54

Given the reaction in this community, it is

I

difficult to determine whether AIDS was used to legitimize an attempted

termination based on sexual orientation, or whether sexual orientation

simply

buttressed the case for termination based on Eric Smith's having tested positive for

the AIDS virus.

I

As

already indicated, termination of any teacher's employment in Nova Scotia

would have to be supported by reasons that constitute "just cause." In addition,

certain types of employment discrimination would be protected by the Nova Scotia

I

Human

Rights Act 55

and the Charter, both of which will be discussed below.

(ii) Standard for suspension, discharge or dismissal

I

A

school board may suspend, discharge or terminate a teacher pursuant to section

76 of the Education Act and Article 19 of the provincial professional agreement if

there is

'lust

cause", and provided the proper procedures are followed. Although

I

the professional agreement, the Education Act, and the Teachers' Collective

Bargaining Act all contain references to "just cause", it is never specifically

defined. 56

One general definition that has been used is:

misconduct, inconsistent

with the due and faithful discharge by a servant of dunes for u which he/she was

I

engaged

7

In this article, "just cause" for termination will be examined in four different

1

contexts:

1. ?

persons who test positive for the AIDS virus but do not show symptoms;

2. ?

persons who test positive for the AIDS virus and show some symptoms;

3.

persons with full-blown AIDS, including most symptoms; and

Aids in Schools: A Model ...

?

Reading 2.3— 9

I

I

4. Christian morality, homosexuality and AIDS, as grounds for termination.

I ?

In the first context, 'l

ust

cause" would be based entirely on the fact that a

person was a carrier of the AIDS virus (HIV). The only possible grounds for

I ?

dismissal would therefore be that the teacher's infectiousness posed a serious

danger to students and fellow teachers. Given generally accepted standards for

just cause, it would appear that for an arbitrator or a board of appeal to uphold a

termination or discharge, there would have to be more than a theoretical

I ?

possibility that AIDS could be passed on through casual contact. In other words,

the termination would have to be' supported by evidence of contagiousness, and

would likely not be upheld if it were based solely on hysteria or paranoia. However,

I ?

as will be discussed in a later section, this paranoia could result in a compromise

being reached between the employer and the teacher.

One of the few Canadian arbitration cases to consider the issue of AIDS in the

I ?

workplace was

Re Pacific Western Airlines Ltd. and Canadian Air Line Flight

Attendants Assn.

58

In this case the grievor, a flight attendant for 17 years, was

indefinitely suspended from his duties, with pay, on the grounds that he was

I

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10 - Reading 2.3

?

1. Graham

suspected of having contracted AIDS. The grievor was indisputably suffering from

an AIDS-related illness, but had passed two company medical examinations,

including one conducted just three days prior to his suspension.59

The airline initially argued that it was not a violation of the collective

agreement to suspend an employee from active duty, so long as all rights and

benefits continued. Arbitrator Hope found, howevr, that the employer did not

have an unfettered right to deny an employee the right to work:

There is an implied term in this agreement that employees will not be denied a

right to attend at work in the absence of some reascinable cause for imposing that

limitation on them.60

In the alternative, the airline argued that the safety of the airline could be

jeopardized by the stress or anxiety of their employees, especially pilots, caused by

working with a person with AIDS. However, the Arbitrator found that pilots were

trained professionals who were under an obligation to assess their emotional state

at all times and remove themselves from flights if they entertained doubts about

their competence or fitness. Furthermore, the Arbitrator found that there was no

danger of the grievor's transmitting the disease to fellow employees or passengers

through casual, nonsexual contact, during the course of his duties. It was also

noted that the two government agencies charged 1with jurisdiction over disease

control and airline safety—Health and Welfare Canada and Transport Canada—

had not seen fit to restrict persons with AIDS, and undoubtedly would have done

so if there had been, a risk of transmission of the disease. In considering the level

of risk necessary to support the employer's action, the Arbitrator held:

[T]he circumstances are not such that the employer must prove that exposure to

transmission is a probable risk. It would be sufficient for the employer to show that

there was a possibility of transmission.

But here there

is no

evidence that there is a possible risk,

only a theoretical

one.61

[emphasis added]

The Arbitrator further concluded:

What the employer sought to achieve in this dispute was not the elimination of risk,

but the elimination of any theoretical possibility of 'risk. Theories that there is a

possibility of risk of the transmission of AIDS through casual contact, on the

evidence be heard, are subjective and embrace the most conservative medical

theories at one end of the spectrum and the hysterical obsession of uninformed

persons at the other end. Those theories do not jutify the extreme response of

removing employees from flight duties.62

In this case the Arbitrator was not able to reinstate because, between the time

of the hearing and the time of the release of the award, the grievor died of the

disease.

Although arbitration decisions are not binding on other arbitrators, this

decision is relevant for a number of reasons. The most important is that this

Arbitrator looked to the state of medical knowledge and based the probability of risk

not simply on the hysteria of uninformed persons, but on objective sources such as

Health and Welfare Canada.

63

Applied in the Nova,Scotia context, it is likely that

an arbitrator would base his or her decision on the position or policy of the

Department of Health, and the Department of Education and the school board. If

the prevailing view were that there is no risk to fellow employees and students

through casual contact (which it is) then just cause would be difficult to establish.

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I

I

Aids in Schools: A Model ...

?

Reading 2.3— 11

I

It is also important to note that this arbitration decision was based on a

suspension with full pay and benefits. The test for termination may well be even

more stringent since the consequences to the individual are greater.

I

In the second context, the only difference would be that the teacher infected by

HIV is exhibiting some symptoms of AIDS, but the disease has not progressed to

the stage where he has rare infections and cancers associated with full-blown

I

AIDS. Since it is generally accepted that the existence of symptoms does not have

any greater effect on a person's potential to transmit the HIV infection,

termination in this scenario would have to be based on the inability of an employee

to function physically, given the disabling nature of the illness.

I

Arbitrators have traditionally divided the cases dealing with dismissal for

illness into three categories, depending on whether the illness results in excessive

I ?

intermittent, long-term or permanent absenteeism.64

In the context of AIDS the most likely classifications will be long-term and

permanent illness. In determining whether an employee is suffering from a

long-term illness, Risley has commented that the Arbitrator will consider such

I

factors as:

1. the length of time for which an employee can collect money under a sick pay

i ?

plan;

1 ?

2. the ability of the employee to attend regularly in the future; and

I ?

3. seniority provisions.65

In the case of permanent illness, the employee may be dismissed under a

principle similar to the common law doctrine of frustration of contract.

66

However,

I ?

unlike the common law, it is possible that a seniority clause can protect an

employee who may be permanently disabled for some work, but able to perform

other work available in the workplace.67

I

Given the nature of teaching, it is not likely that a person who is unable to

perform employment functions because of physical illness can be re-assigned to

other employment. With some obvious exceptions, teaching and other related

I

school administration functions generally involve the use of mental rather than

physical abilities. Therefore, reassignment due to physical inability (as opposed to

parental paranoia in the case of Eric Smith) will not likely be a frequently viable

option.

I

Teachers who are terminated by reason of long-term disabling illness will be

required to rely on provisions in their local agreement

68

or possibly provisions in

the provincial agreement similar to Article 30.03:

1

?

30.03 No teacher on a permanent, probationary contract shall suffer a loss of salary

when absent:

I ?

(i) because the teacher has been placed in quarantine or other situations where a

teacher is advised by a medical practitioner or medical officer to leave his/her

teaching duties and the leave is not provided under any sick; leave or other

I ?

leave provisions, and further provided that the Minister may require the

teacher to be examined by a medical practitioner agreeable to both the teacher

and the Minister.69

The third context is very similar to the second except that persons who are

experiencing the symptoms of full-blown AIDS will not likely be able to continue

their employment and will either be placed on long-term disability or suspended

with regular sick leave benefits.70

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12 - Reading 2.3

?

/.

Graham

The fourth context likely has the potential to create the most contrOversy in the

termination of a teacher. Under section 74(f) of the Education Act it is the duty of a

teacher in a public school to:

(f) encourage in the pupils by precept and exampl&a respect for religion and the

principles of

Christian an Morality,

for truth justice, love of country, humanity,

industry, temperance Arid all other virtues [emphasis added]

In addition, Article 11.01(v) of the provincial professional agreement provides:

11.01 It is the duty of a teacher to:

(v) Maintain an attitude of active and sympathetic concern for the dignity,

Christian morality

and religious principles of each pupil, and encourage in the

pupils an active and sympathetic concern for the dignity and welfare of others.

[emphasis added]

In the case of

Beckwith v. Colchester-East Hants Amalgamated School Bd.

7 '

a

conviction for possession of marijuana was held to be just cause for dismissal.

After considering sections 74(f) and 74(g) of the Education Act, the NSTU handbook

and the teachers' code of ethics which requires that teachers encourage in

students respect for morality, justice and temperance, the board of appeal

affirmed the school board's decision to terminate the teachers' contracts.

72

As

MacKay points out, a conviction on drug related offences outside the workplace is

not always regarded as just cause for dismissal in other job settings.

73

MacKay

concludes, however, that teachers may well be held to a higher standard in

matters of moral conduct.74

How then does section 74(f) of the Education Act, relate to AIDS? The Eric Smith

case may well be a good example. Mr. Smith freely admits that he is a member of

the highest so-called risk group of potential AIDS virus (HIV) carriers—

homosexual and bisexual men. He has also freely admitted, on regional

television.

75

that he contracted the virus when he was engaging in homosexual

acts. Furthermore this television program painted an image of Mr. Smith as a

person who, on his weekends, travelled to Halifax to engage in what was regarded

by some as promiscuous homosexual activity. During the program Mr. Smith did

not attempt to hide his homosexuality or the nature of the activities he was

engaged in

If section 74(f) is to have any meaning, one wonders whether the "community

standard" for morality was not offended by this activity.

76

It is clear that this

provision may not withstand a Charter challenge.

77

However, even if the word

"Christian" is struck out of the section, or if merely being homosexual is not

deemed to violate the section, is there not some level of so-called "moral behaviour"

that can be expected of teachers? And, if so, did Eric Smith violate this standard?

The so-called morality issue is one of the most illusive issues in the Eric Smith

case. Although section 74(f) has been used to terminate or suspend employees in

the past, the school board in this case did not attempt to use it as grounds for

dismissal. In addition, Mr. Smith has consistently argued that what he does when

he is off-duty ought to have no bearing on his job.

78

Moreover, given Mr. Smith's

willingness to speak with media officials it did notappear that he was concerned

about the possibility that public disclosure or excess

, ive publicity of his homosexual

conduct may have an adverse effect on his employment.

Officials from the Department of Education, the school boards' association, and

the teachers' union will admit privately that theyare skeptical whether section

74(f) will withstand a Charter challenge. However, it is by no means clear that the

---

I

I

I

Charter

Aids in Schools:

will eliminate

A Model ...

all

?

standards of morality for teachers' off-duty

Reading

conduct.

2.3— 13

Whether Eric Smith violated a constitutionally acceptable standard of morality is

still an open question.

I

Finally, it is interesting to note that, unlike the situation in Quebec, Ontario

and Manitoba, sexual orientation is not one of prohibited grounds of employment

discrimination under the Nova Scotia Human Rights Act. Although the Act

I

prohibits employment discrimination based on sex,

79

courts have held that "sex" in

human rights legislation refers to gender and not sexual preference.

80 This is not

to say that dismissal on the basis of sexual preference will necessarily constitute

"just cause"; rather, it simply means that an aggrieved person cannot rely on

I

provincial human rights legislation for support.

While the Nova Scotia Task Force on AIDS specifically recommended an

amendment to the Human Rights Act to preclude discrimination based on sexual

I

orientation, this recommendation was rejected by the Nova Scotia government.8'

(e) Employment Discrimination and Hiring Practices

I

Riskgro ups

As already indicated, one of the most serious employment related issues arising

I

out of the AIDS epidemic is the effect that AIDS may have on the hiring practices

of employers. Although discrimination can occur in other stages of the

employment relationship, this section will focus on pre-employment.

I

Employers are generally not legally obligated to provide explanations or

reasons for not hiring a particular individual. Thus, people in high risk groups

will likely be vulnerable to preemployment discrimination. Employers wishing to

I

avoid any problems associated with AIDS may well target high risk individuals as

"undesirables." Since employers have no legal right to require an applicant to take

an AIDS screening test, this discrimination will likely be focused on readily

identifiable high risk; groups. The two most vulnerable groups will clearly be

I

Haitians and homosexuals.

Once again, in the context of school employment, Haitians will be much easier

I

to detect simply through personal histories provided in employment resumes.

Homosexuals are obviously not as easy to detect. Therefore, employers may engage

in personal history witch hunts or draw inferences about a person's sexual

preference by scrutinizing his personal habits, lifestyle, dress, mannerisms,

etc.

I

?

?

Needless to say, this type of process is both unreliable and blatantly

discriminatory.

Unlike the employment context, where the onus is on the employer to prove

I

"just cause" for dismissal, in pre-employment the onus for establishing

discriminatory practices is on the person claiming discrimination. Since the type

of pre-employment discrimination referred to above would occur behind closed

I

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?

doors, the aggrieved party would not likely have access to the information

necessary to prove his case.

Since a person alleging pre-employment discrimination by school boards on the

I

basis of suspicion of AIDS, has no contractual relationship with the employer, that

person must rely on provincial human rights legislation and the Charter.

82

The

grounds for discrimination would likely be sexual orientation and physical

I

disability.

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14 - Reading 2.3

?

J. Graham

(ii) Sexual Orientation or Preference

As already indicated, sexual preference or sexual orientation is not a prohibited

ground of discrimination in employment or pre-employment under the Nova

Scotia Human Rights Act. As a result, even if an aggrieved party can establish

discrimination based on AIDS, the school board may claim that it simply does not

wish to hire homosexuals. In a recent article, Tracey Trëmayne-Lloyd,

chairperson of the Canadian Bar Association-Ontario Special Committee to study

the legal implications of AIDS, outlined the concern of the committee in regard to

discrimination based on sexual orientation:

[T]he committee was concerned that because the human rights laws do not prohibit

discrimination by sexual orientation, people who are HTLV-III (HIV) positive, who

have ARC or AIDS, or who were perceived to have or be susceptible to ARC or AIDS,

could be discriminated against under the guise of discrimination against

homosexuals. For example, someone might say, "I refused him the appointment

because I don't like homosexuals not because of all this AIDS stuff." As a result of

this concern and the recommendations the committee received on the subject, it

recommended an amendment to the Canadian Human Rights Code and the

Ontario Human Rights Code to add "sexual orientation" as a prohibited ground

of

discrimination83

In the context of public schools, the absence of sexual orientation as a ground of

discrimination under the Nova Scotia Human Rights Act may not pose quite as

much of a problem, since provisions in the Charter, in particular section 15

equality rights, may protect against discrimination based on sexual orientation.

Although sexual orientation is not specifically listed as one of the prohibited

grounds of discrimination under section 15(1), as is discussed by Arnold Bruner,

section 15 is clearly open-ended:

The language

of

section 15 of the Charter itself, provides the strongest evidence that

sexual orientation should be accepted by the courts as a possible prohibited ground of

discrimination. Subsection 15(1) is clearly an open-ended provision on the basis

of

the words "in particular" which appear prior to the list of enumerated grounds

of

discrimination.84

Bruner further points to private statements made by former Minister of Justice

Mark MacGuigan to the effect that nonenumeration does not detract from the

general prohibition in section 15(1), making it unnecessary to expressly prohibit

certain forms of discrimination, including sexual orientation.

85

This conclusion

has subsequently been buttressed by the courts, most recently by the Supreme

Court of Canada's ruling in Andrews v. law Society (B.C.).86

Even if action by school boards were found to violate section 15(1) because of

discrimination based on sexual orientation, it is not clear whether this action

would constitute a reasonable and demonstrably justified limit under section 1 of

the Charter. This issue must be left for another day,

(iii)

Physical Disability

The question of whether pre-employment discrimination can be justified on the

basis that a person has AIDS, or is a carrier of the AIDS virus (HIV), is still open.

In Nova Scotia, protection for teachers against pe-employment discrimination

based on physical disability comes from three sources:

1.

the provincial professional agreement;

2.

human rights legislation; and

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Aids in Schools: A Model ...

?

Reading 2.3— 15

3. the Charter.

Article 6.03 of the provincial professional agreement policies

6.03 Neither the Employer nor school board nor any person acting on behalf of the

Employer or school board shall refuse to employ or continue to employ any teacher

or otherwise discriminate against any teacher on the basis of marital status, race,

religion, creed, colour, sex, ethnic or national origin,

physical handicap,

or age to

the age of sixty-five (65) years. 87

[emphasis added]

Virtually all Canadian human rights legislation prohibits discrimination based

on physical disability. In Nova Scotia, the Human Rights Act provides:

11C (1) No person shall deny to, or discriminate against, an individual or class of

individuals, because of the physical handicap of the individual or class of

individuals, in providing or refusing to provide any of the following:

(d) employment, conditions of employment or continuing employment, or the

use of application forms or advertising for employment, unless the nature and

extent of the physical handicap reasonably precludes performance of the

particular employment or activity.

This statute also defines "physical disability":

(2) In this Section and Section 11C, "physical disability" means a physical

disability, infirmity, malformation or disfigurement w which is caused by bodily

injury, birth defect or

illness

and includes epilepsy and, but

is

not limited ro

any

degree of paralysis, amputation, lack; of physical coordination, blindness or

visual impediment deafness or hearing impediment, muteness or speech

impediment or physical reliance on seeing eye dog, wheelchair, or other remedial

appliance or device. [emphasis added]

The section also provides for exceptions under certain circumstances:

11C(2) Notwithstanding subsection (1), this Section does not apply where the

Commission determines that

(a) the nature and extent of the physical handicap reasonably precludes

performance of a particular employment or activity; or, b) a denial, refusal or

other form of alleged discrimination is based upon a bona fide qualification.

Although the statutory definition of "physical disability" is very broad, it is still

not clear whether distinctions will be made based on whether a person is a

member of a high risk group, a carrier of the virus with no symptoms, or has full-

blown symptoms of AIDS that are actually disabling.

In the U.S. case of

Airline v. School Bd. of Nassau Co.,

88

the Court considered

I ?

whether a physical illness, tuberculosis, could be classified as a handicap under

the 1973 Rehabilitation Act.

89

Section 504 of that Act provided that:

[Nlo otherwise qualified

handicapped individual

shall, solely, by reason of his

handicapped be excluded from participation andeven denied benefits of or be

subjected to discnmination under any program or activity receiving federal

financial assistance. [emphasis added]

After considering various definitions of physical and mental impairment, the

Court concluded that persons with contagious diseases fit into the definition of

"handicapped individual."

The effect of this decision on Canadian cases dealing with AIDS as an illness is

unclear, especially in light of a recent U.S. Justice Department ruling in response

I

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11 '

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[]

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16 -Reading 2.3 ?

1

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j

Graham

to a request for an opinion from the Department of Health and Human Services on

the applicability of section 504 of the Rehabilitation Act to the AIDS situation.

In this memorandum, which the executive branch of government is bound to

follow in dealing with complaints of discrimination,

90

Assistant Attorney General

Charles T. Cooper wrote that discrimination based on actual physical disability or

impairment, or on perceived actual impairment caused by AIDS might be a

violation of the law.

91

However, Cooper did not consider asymptomatic infection to

be an actual impairment and would thus exclude those not suffering, from

symptoms, as well as uninfected members of so-called risk groups who might

encounter discrimination because of a perception that they may be carrying, and

capable of transmitting the virus (H1V).92

Leonard has criticized this view as being unnecessarily narrow and bad public

policy. In particular Leonard suggests that this reasoning is not consistent with a

wider definition of "handicap" in Department of ,Health and Human Services

regulations. He also contends that it is incompatible with the underlying

philosophy of the statute, which is to limit adverse employment decisions by

federal agencies unless there are objective grounds to justify removing employees

from the workplace.93

In Nova Scotia, there are no provisions in the Human Rights Act that would

automatically accord protection to persons who are not experiencing any

impairment, disability or illness, due to the fact that they are infected by the AIDS

virus (HIV).

It is also noteworthy that sections 11C(2)(a) and (b) of the Human Rights Act

exempt employees when the physical disability precludes performance of a

particular type of employment or when the discrimination is based on a

bona fide

qualification.

These exceptions normally require some element of objectivity in considering

whether a person is qualified or able to perfoim the work in question. In

discussing these exceptions, Gandz and Rush have commented:

There must be no intention to arbitrarily discriminate and, as well, the require-

ment for employment must have a rational basis.94

If this reasoning were followed, the employer, would likely be required to

establish that there is some real, identifiable risk in having carriers of the AIDS

virus (HIV) in their employ, not just a "theoretical possibility of risk" as was

referred to in the PWA arbitration case.95

Unfortunately, however, this reasoning is not necessarily always followed. In

the case of

Can. Safeway Ltd. v. Steel,

96

the Manitoba Court of Queen's Bench

ruled that a supermarket did not discriminate against employees when it imposed

a "no beards" policy on its male employees. After taking account of customer

preferences in relation to "no beards", the Court ruled that it was a reasonable

occupational qualification. 97

Applying this principle to the school setting one wonders whether the

preference of parents will be considered when determining

bona fide

qualifications

of teachers who may be carriers of the AIDS virus.

The application of the Charter to the question of pre-employment

discrimination based on physical disability and AIDS, raises many of the issues

already considered. The definition of "disability" under

' the Charter is not likely to

be any different from the one applied to human rights legislation. In addition, it is

unlikely that school boards will be able to justify discriminating against AIDS v

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Aids ii; Schools: A Model ...

?

Reading 2.3— 17

virus carriers unless there is some objective basis for their discrimination. In

other words, employers will likely be required to establish that their policy or

action is based on a real and not a theoretical risk that AIDS can be transmitted

through casual contact. Uninformed paranoia will not likely meet the standard

imposed by the Supreme Court of Canada" for determining whether a law is a

reasonable and demonstrably justified limit on rights, namely that there be a

rational connection between an important governmental object and the means

chosen to effect it.

Notwithstanding all of the legal arguments related to whether AIDS or

infection by the AIDS virus (HIV) is covered under human rights legislation, or

the Charter, it is important to reiterate one very significant obstacle to using either

of these remedial routes—proof. The aggrieved party must be able to establish that

he/she was in fact discriminated against. Unless certain policies are written down

or aggrieved parties have some access to deliberations of selection committees,

pre-employment discrimination will be extremely difficult to prove.

(

Rght to Refuse

Another issue that school employers are likely to be faced with is the right of other

employees to refuse to work, if they find o they are working with a carrier of the

AIDS virus (HIV).

The Occupational Health and Safety Act" and the Health Act of Nova Scotia

impose various duties and obligations on employers to promote and maintain a

safe working environment. However, section 22 of the Occupational Health and

Safety Act provides:

22(1) Any employee may refuse to do any act at his place of employment where he

has reasonable grounds for believing that the act is likely to endanger his health or

safety or the health or safety of any other employees.

This might to refuse is concerned with both the type of danger that is present

I

and the kind of belief that is required to sustain the right. This right applies to any

employee who feels that the environment, or an act, is "likely to endanger his

health or safety."°°

I

The employee must also have "reasonable grounds" for his belief Nash has

suggested that the standard for the employee's belief contains both subjective and

objective elements.

I

An employee will be regarded as having had reasonable grounds to believe a

situation is unsafe if objectively such reasonable grounds exist, and provided that

there is no reason to believe that the employee was acting out of ulterior motives. If

I

the reasonable grounds are not objectively demonstrable, then the employee may

show from his or her own subjective point of view why he or she personally had

reasonable grounds.'°' [emphasis added]

I

In a decision of the Ontario Labour Relations Board, the tribunal found that the

right of the employee to refuse to work with a coworker who had AIDS did not

depend on whether in fact there is any danger to the health and safety of the

I

complaining employee. Instead the tribunal judged the refusal to work on the

basis of whether the employee had reasonable cause to believe that it was unsafe to

work with another employee who had AIDS.102

I

Generally, labour relations boards will assess refusals to work using a

subjective test based on some objective criteria, "would the average employee at the

workplace, having regard to his general training and experience, exercising

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18 - Reading 2.3

normal and honest judgment, have reason

td.

believe that conthtibfis at his

workplace present an unreasonable degree of hazard to himself or to

anotheremployee.'°3

There has also been one case in Ontario in which the Ontario Laboiir Relations

Board found that the statutory right to refuse could not be involved); by health care

particularly

workers who

interestin

did not

g

when

want

applied

to care

to

for

the

AIDS

school

patients

environment

104

since

This decision

health care

is

workers are generally regarded to be at a higher risk since they often deal with

blood products and body fluids that contain the virus.

Finally, it is worthwhile noting the following passage that appears in a

pamphlet published by the Ontario Ministry of Health. The pamphlet, entitled

"Aids and the Workplace",

ddresses several important questions in relation to

AIDS including: Can an employee refuse to world with a co-worker whO has AIDS

or who has been infected by the AIDS virus? The response is:

The Occupational Health and Safety Act allows workers to refuse to do a job that

threatens their health. However, there has not been a single incident reported of

- someone becoming infected with the AIDS v virus through nonsexual contact with a

co-worker. Therefore there is no medical reason to refuse to work with someone

who is infected with the AIDS virus.

105

The pamphlet goes on to say that "[e]mployers should be sensitive to co-

workers' concerns and provide access to education to allay unreasonable fears.11106

So far there have been no cases in Nova Scotia where a teacher has refused

to

work because another teacher or a student was infected with the AIDS virus.

(a) Introduction

The presence or potential of the AIDS virus (HIV) in schools has raised, and will

continue to raise, many of the most sensitive issues surrounding this problem. A

careful examination of the series of events leading to Eric Smith's decision not to

return to the classroom, or of widely reported incidents in the U.S. where AIDS

victims have been targets of criminal acts, discloses that this issue is as much

emotional as it is medical and legal. The involvement of children sometimes

seems to "up the ante", or at least, to change the focus of the debate. No longer are

reasonable people satisfied with standard medical claims that AIDS cannot be

transmitted through casual contact; they want to be 100 per cent certain that new

medical evidence will never be discovered to disprove this position.

107

Regardless

of the present state of medical evidence, great pressure is being put on parents and

school administrators, since the acceptance of a standard of less than 100 per cent

certainty is in some cases being characterized as an irresponsible position for

parents to take.

This section is designed to raise, but not necessarily exhaust, some of the

issues that will face school administrators, parents and children in regard to

AIDS. Issues such as confidentiality, safety, and the right to an education will be

discussed 'from the perspective of children with AIDS or who are infected by the

AIDS virus (HIV), as well as parents who are concerned about sending their

children into an environment where teachers or other children may be infected by

the virus.

Since many of the issues related

to

human rights and Charter protection have

already been examined in previous sections, they will not be dealt with in this

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Aids in Schools: A Model ...

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Reading 2.3— 19

section. It should be noted however, that arguments dealing with discrimination

I

based on physical handicap or disability are, for the most part, applicable to

children who are subjected to discrimination in schools.

I

(b)

Right of Children to Education

At the root of the AIDS issues in schools is the right of a child to an education.

Although some writers suggest that this right is no more than a privilege with

I

many conditions attached, for the purposes of this section, it will be construed as a

right.

11111

In Nova Scotia, the basis for this right comes from statute, in particular,

I

various provisions in the Education Act and regulations associated with what Act.

Section 2 of the Education Act provides:

1

2(1) ?

All schools established or concluded under this Act are free schools.

(2) ?

Subject to this Act and the regulations and notwithstanding the Age of

Majority Act, every person over the age of five years and under the age of

I

twenty-one years has the right to attend a school serving the school district or

school section in which he resides. [emphasis added1109

I

As is discussed by Professor Wayne MacKay in his book

Education Laws in

Canada,

section 2 contains no specific mention of a right to an education, but

rather speaks of "the right to attend a school."° However, MacKay goes on to point

out that when section 2 is read in the context of Canada's international

I

commitments 111

and the rest of the Education Act, it most likely implies a right

rather than a privilege.

-

Some of the provisions that support this view include:

A school board shall make provision for the education and instruction of all pupils

residing in the area within its jurisdiction in such subjects and services prescribed

by the Governor in Council as are included in the school program.2

In addition, sections 80 and 81 impose a duty on parents and guardians to

ensure that children attend school unless the child is exempted pursuant to the

Act and regulations.

The Nova Scotia Education Act regulations further impose an obligation on

school boards to educate students with special needs. Regulation 7 provides:

Each municipal school board and board of school commissioners shall provide for

all pupils resident in the municipality, city or town who are entitled to attend school

and who are qualified to pursue the studies in the grades or courses for v. which they

are enrolled:

S..

(c) instruction of physically or mentally handicapped children

Although it is unclear whether this duty applies to children with AIDS or who

are infected with the AIDS virus (HIV), education department officials and the

Department of Health appear to be assuming that it does.

(C)

AIDS Policies Affecting Children in Schools

I

To

date, the most important policy affecting children in schools is the Nova Scotia

Department of Health policy.

113

However, this policy cannot be mandatorily

imposed on school employers. Since the Department of Education has not officially

I

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20 - Read jn 2.3 ?

1. Graham

adopted a policy on AIDS, it is hoped that the Health Department policy will form

the basis for these policies eventually adopted by school boards.

The Department of Health policy is essentially an attempt to balance the safety

interests of the public with the privacy interests of the individuals and the rights of

children to be educated. The policy consists of five major control measures for

students:

1.

School Attendance

Most school-aged children and adolescents infected with HIV should be

permitted to attend school in an unrestricted manner.

2. Confidentiality

The identity of HIV-infected students will be kept confidential and, will only be

released w hen deemed appropriate after consultation with the student's

parents and his/her attending physician.

3.

Risk Assessment

An assessment of the potential risks for spread. of infection and a decision on

an appropriate course of action will be made by the Department of Health, in

consultation with the infected student's parents and attending physicians.

Depending on the behaviour, physical condition,, neurological development and

expected type of interaction with others, some HIV-infected students may

require a more restricted environment than others.

4. Follow Up

The situation of HIV-infected students shoulcL'be monitored to ensure that

there is no change in their status requiring a change in the educational

environment.

5.

Routine Procedures for Blood/Body Fluids

All schools should develop routine procedures fr safely dealing with blood or

body fluids, and for administering first aid.

The main principles in this policy are very similar to those adopted by the Nova

Scotia Teachers Union,

114

the New Brunswick government

115

and the Guidelines

prepared by the' National Advisory Committee on AIDS.

116

Central to all of these

policies, as well as those developed in the U.S.,

117

is the medical position that the

AIDS virus (HIV) cannot be transmitted througi casual contact of the kind

normally experienced in schools. Furthermore, children are not members of high

risk groups and the statistical probability that someone may contract the virus by

normal contact in a school setting is so remote that it does not justify the different

treatment of persons infected by the virus. Unfortunately, medical evidence and

clarity of reason have not always been in the forefront of this issue.

(d) The U.S. Experience

Although the issue of AIDS in the classroom has not yet found its way into

Canadian courts, U.S. courts have had to deal with-it in a number of occasions.118

Unfortunately, the agreement of public health specialists in regard to risk of

transmission has not carried over into the courts. However, it is hoped that the

first of the U.S. court cases,

District 27 Community School Bd. v. Bd. of

Education

119

will be used as the standard for much df'-the subsequent litigation.

Briefly, the background to the

District 27

case is as follows. In August 1986, the

U.S. Centers for Disease Control published a report and recommendations

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Aids

relating

in Schools:

to day

A

care

Model

and

...

foster

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care of children infected by HIV. The purpose

Reading 2.3—

of this

21

document was 'to assist . . . local health and education departments in eloping

guidelines for their particular situations and locations. 120 The basic thrust of the

I

recommendations was that schoolage children should be permitted to attend

school in an unrestricted setting unless they were neurologically impaired, lacked

control of their bodily secretions or displayed behaviour such as biting.

12

' Using

the CDC recommendations, the New York City Health Department adopted a

I

policy not automatically excluding children with AIDS from public schools. In

addition the child's identity was to remain confidential. As a result of opposition to

this policy by some school boards and parents, as well as a school boycott, a law

I

suit was commenced in the state Supreme Court. This action sought to enjoin the

admission of the child with AIDS or, in the alternative, to have the child's identity

revealed to school board members and school officials.

I

In its decision, the Court upheld the policy not to automatically exclude

children with AIDS from public school.

The Court held that this policy did not violate any law relating to

I

communicable or contagious diseases and, in light of the medical data "was not

arbitrary and capricious or an abuse of discretion. 122 In addition, because of the

overwhelming evidence that the AIDS virus could not be transmitted in a

I

classroom setting, the Court declared that a policy of excluding all children with

AIDS from school would violate the federal Rehabilitation Act of

1973123

and their

rights to equal protection of the laws.124

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Applied to the Canadian context this decision may be useful for a variety of

reasons, including:

1.

medical evidence was the primary factor in determining the issue of

I ?

transmission through casual contact, and by implication the question of

reasonable risk;125

2. students with AIDS or who are infected by the AIDS virus (HIV) are

I

"handicapped" within the meaning of the Rehabilitation Act 1973: and

3. unsubstantiated fears based on a demand for absolute certainty that AIDS

cannot be transmitted through casual contact, are not sufficient to justify a

I

policy of exclusion.126

Although Canadian health regulations and human rights provisions differ in

their specifics from those in the U.S., the policy oriented conclusions from the case

I

can easily be applied in the Canadian context.

(e) Parents' Right to Refuse to Send Children

I

Notwithstanding the plethora of medical evidence suggesting that there is

virtually no risk of contracting the AIDS virus (HIV) in a school setting, fear,

paranoia and, in some cases, hysteria, continue. Whether this fear is borne out of

I

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?

ignorance, a genuine belief that the medical evidence is incorrect or inconclusive,

?

or homophobia, the issue of AIDS in the classroom is far from being settled.

The Shelburne County case is a prime example. Even if the school board had

I

adopted the Department of Health policy, would it have made any difference? In

this context, the politics of AIDS may clearly take precedence over the law related

to the disease.

I

Under section 80 of the Education Act parents are under a positive duty to

"cause the child to attend school." Although section 81 provides that a child can be

exempted from attendance by the school board, in accordance with regulations

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22 - Reading 2.3

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1. Graham -•

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made pursuant to the Act, none of these regulations makes specific referëiice to

refusal to send children on the basis of reasonable apprehension of a health risk in

the school. 127

However, Regulation 92(g) permits an exemption from attendance

for the following reasons:

(g) the child is relieved or excluded from attending school by or under the Act or the

While

Public Health

the Health

Act (now

Act

the

does

Health

contain

Act)

provisions exempting students from

I

attendance, these exemptions cannot be enforced by .parents acting alone. Sections

70 and 71 of the Act restrict attendance of students who are exposed to

communicable diseases (of which AIDS is one),

128

whoever these restrictions apply

only when a household has been quarantined or when health officials determine

that

Unless

attendance

parents

of a

are

student

somehow

will result

able to

in

involve

a danger

a

to

cOmmon

public health.129law

right to refuse to

I

send their children, similar to that used in the occupational health context, school

boards may be faced with a serious standoff. On the one hand, as politicians and

public representatives, school boards may wish to accommodate the concerns of

parents; but on the other hand, they are obligated to enforce attendance provisions

in the Act.

In addition, parents who violate the attendance provisions under sections 80

and 81 of the Education Act may well be subject to fines, and in default of payment,

imprisonment for not more than 30 days.

130

Whether school of officials choose to

invoke these penalties will likely depend on the circumstances of each individual

case. However, it is highly unlikely that school administrators would enforce

section 96 in situations where a significant number of parents refused to send

their children. In these cases, school of officials would be forced to either educate

parents or to find a compromise solution.

Unfortunately, the Eric Smith case is not likely to provide much guidance in

terms of precedent. Mr. Smith did not lose his job, he was technically seconded to

the Department of Education to work; on the provincial AIDS Task Force. Eric

Smith continues to be employed by the Shelburne County School Board, however,

he is still being paid by the Department of Education, even though he works with

the Metro Area Committee on AIDS in Halifax. In this case, the politics of AIDS

precluded a legal resolution of the case.

The Eric Smith case raises the question of what will happen if other school

boards are faced with a similar situation. Will they Department of Education be