In a recent appeal filed under section 311.7 of the Education Act, the Child and Family Services Review Board (the CFSRB) overturned and quashed the expulsion of a student (the Student). The Student allegedly committed sexual assault, sexual harassment, bullying,and was alleged to have contributed to an “underground culture” of sexualized behaviour and talk that pervaded a Grade 8 classroom.
In reaching its decision, the CFSRB weighed two important takeaways for students: the need to deter inappropriate behaviour involving sexual violence, and the right of every accused individual to be afforded a fair and just proceeding that allows him or her to challenge any allegations made against them. Ultimately, the CFSRB found that the case put forth by the responding Halton
District School Board (the School Board) was rife with “inherent unreliability” due to a foundation built upon “double hearsay and triple hearsay,” deciding in favour of the Student.1
In March 2019, a female pupil (the Female Complainant) under the care of the School Board alleged that she was the victim of a months-long course of sexual assault and harassment, which included sexualized talk, behaviour, and a “don’t tell” mentality.2 The pupil complained of inappropriate and unwanted touching off-campus, as well as at lunch and recesses when teachers were not present, with other peers acting as lookouts to protect their friends. The Female Complainant described a pervasive, overtly sexualized and unsafe atmosphere that seemed to have taken over a Grade 8 class. Four boys, all of whom were expelled (including the Student), directed the vast majority of these events.
Specifically, the Female Complainant alleged that there were:
- two instances of inappropriate touching of her body by the Student;
- several instances in which sexually inappropriate comments and sexist jokes were made at her expense by the Student and others;
- consistent questions from the Student about what the complainant “had done” sexually; and
- sexualized physical gestures and sounds made by the Student and others towards the Female Complainant.3
This inappropriate behaviour caused significant mental distress for the young female, who was unable to return to class for a length of time, and was forced to complete the remainder of her Grade 8 schooling by doing work in the office and at home. She is now enrolled at a Grade 9 program in a different town.
In April 2019, the school principal expelled the Student, after an internal investigation substantiated an allegation that the Student had participated in unwanted sexual conduct towards another student, violating the School Board’s Safe School Policy. Following the investigation, the principal exercised his right under section 310 of the Education Act, which provides for the immediate suspension of an individual who has participated in, among other things, sexual assault or bullying such that the pupil’s continued presence in the school creates an unacceptable risk to the safety of another person. The principal then expelled the Student, along with three other students.
While all four of the expelled students transferred to different school boards, the Student appealed his expulsion and sought to expunge it from his Ontario Student Record (OSR). As such, the CFSRB conducted a de novo hearing, where witnesses provide direct evidence about the events at issue. At such a hearing, the School Board bears the onus of establishing that, on the balance of probabilities, the student should be expelled.
The process of such a hearing is as follows: first, the CFSRB determines whether the alleged incident(s) took place and whether the activity is one for which a school board may expel a student. Once this is established, the CFSRB may consider any mitigating or other factors set out in the Education Act to determine if expulsion was the appropriate penalty.
Evidence on appeal
At the appeal hearing, the School Board described the school environment as “toxic”, and provided testimony from the Safe Schools superintendent, and the vice principal and superintendent as witnesses who spoke to the details contained in the principal’s investigation report. The principal himself was unable to attend. This report, which formed the basis of the School Board’s case, contained many details provided to the principal by virtue of second or third-hand knowledge. As such, the School Board’s case was almost entirely based on hearsay, double hearsay and triple hearsay evidence that could not be “tested” or questioned on cross-examination by the Student or his counsel. In conducting its case as such, the School Board avoided forcing the Female Complainant to have to endure the difficult experience of giving testimony, and forcing the Female Complainant to have to endure the difficult experience of giving testimony, and chose not to call her classmates to give evidence.
The CFSRB allowed the School Board to present its case as such, given the relaxed standard for admitting hearsay evidence under the Statutory Powers and Procedure Act that governs CFSRB hearings. Unfortunately, for the School Board, not calling direct evidence proved to be the deciding factor in the appeal.
Ultimately, the CFSRB elected to quash the Student’s expulsion, as the “inherent unreliability” of the hearsay evidence presented by the School Board did not persuade the CFSRB that the Student actually committed the incidents as alleged.
In providing reasons for its decision, the CFSRB relied heavily upon a recent summary of the risks of hearsay evidence compiled by Justice Stanley Sherr, a family and child protection judge of the Ontario Court of Justice, which quotes from the cases of R. v. Khelawon,4 R. v. Starr,5 R. v. Baldree,6 and R. v. Nurse.7 These cases are all criminal law cases that address the opportunity for an accused to challenge the evidence against them, and the potential issues that may arise when relying upon hearsay evidence. Justice Sherr listed these issues as follows:
- “First, the declarant may have misperceived the facts to which the hearsay statement relates;
- Second, even if correctly perceived, the relevant facts may have been wrongly remembered;
- Third, the declarant may have narrated the relevant facts in an unintentionally misleading manner; and
- Finally, the declarant may have knowingly made a false assertion.”8
The CFSRB repeated Justice Sherr’s concerns, stating that the School Board had every opportunity to present direct evidence from the Female Complainant (with protections, such as a screen, allowed), the other perpetrators, or other classmates. Given that the School Board did not do so, the CFSRB stated that it could not substantiate the allegations against the Student, quashing the expulsion and expunging any record of it from his OSR.
This decision serves both as a warning to school boards and a means of highlighting Justice Sherr’s commentary regarding the importance of providing first-hand evidence in matters before the CFSRB where a factual dispute or the credibility of a witness are at stake. While the importance of procedural fairness is a longstanding element of Canadian administrative law, the implications in a case such as this one are complicated by the difficulty in asking a complainant to relive an experience involving sexual harassment or sexual assault through giving testimony. It is difficult to criticize the School Board’s handling of the hearing – instead, school boards should pay attention to the CFSRB’s commentary regarding the investigative report that the School Board initially prepared.
The CFSRB’s comments implied that,in compiling an investigative incident report, the principal or school officials involved should seek to rely on first-hand knowledge, and to avoid allowing a “chain of information” to become a “chain [of]…double or triple hearsay” that the Board will ultimately deem to be “not reliable.”9
In concluding its reasons, the CFSRB agreed that it is important to teach students that sexual assault and violence are unacceptable, but procedural fairness for the accused requires providing them the opportunity to challenge the evidence against them. As the CFSRB stated:
“…it is also very important for students to learn that our legal system (including discipline hearings) requires that an accused person be permitted to challenge allegations made against him or her, and that every person has a right to a fair and just proceeding.”
This lesson is one that school boards should heed carefully in preparing for future appeals of expulsion.