Introduction

In a press release issued on January 10, 2008, the Minister of Education recognized that “in order for students to be at their best, they need to be safe and feel safe.” Minister Kathleen Wynne stated: “A safe and healthy learning environment is an essential part of student achievement.”

To help ensure that students feel safe at school and on school grounds, the Ontario government recently developed a safe schools strategy. As part of the strategy, on February 1, 2008 new amendments to the safe schools provisions of the Education Act came into force.

Bill 212 has been operating in Ontario schools for one year. The question arises, at this juncture, as to how effective the new safe schools legislation has been. Has Bill 212 made Ontario schools safer? Has the new legislation promoted a framework of progressive discipline that shifts the focus from one that is punitive to a focus that is supportive and corrective in nature? Has Bill 212 streamlined and simplified the safe schools regime? Does the new legislation provide a consistent response to prohibited activities both within a school board and across the Province? And, has Bill 212 provided school administrators with sufficient flexibility and authority to address safe school issues?

All school boards across the province have implemented, among other things, a new code of conduct based on the Provincial Code of Conduct introduced by the Ministry of Education on October 4, 2007 in Policy/Program Memorandum No. 128. All Ontario school boards have also introduced a bullying prevention and intervention policy, as required by Policy/Program Memorandum No. 144 released by the Ministry on October 4, 2007. In addition, based on the amendments to the Education Act and its regulations, all school boards have implemented revised safe schools policies and procedures which came into effect on February 1, 2008.

Over the past year, as the new safe schools legislation has been implemented across the Province, there have been both clear successes and serious concerns. After one year of operation, this is a good opportunity to review the positive aspects of Bill 212 and some apparent deficiencies of the new legislation.

1. Successes of Bill 212

The successful aspects of Bill 212 over its first year of implementation include the following:

  • Bill 212 has extended the right to discipline to include actions taken off school property and outside school activities where the activity has an impact on the school climate;
  • The legislation has added “bullying” to the list of prohibited activities for which suspension must be considered. In the Ministry’s Policy/Program Memorandum No. 144, a clear definition of bullying has been provided;
  • Bill 212 provides that a suspension shall be for no less than one school day and no more than 20 school days;
  • All school boards are required to provide programs for suspended and expelled pupils. Schools are required to develop a Student Action Plan for every student on a long term suspension (more than five school days) who makes a commitment to attend the board program for suspended students;
  • Bill 212 has removed teacher suspensions from the previous safe schools legislation; and
  • The new safe schools legislation provides each student who is not a party to a suspension appeal or expulsion hearing with an opportunity to be present at the proceeding and to make a statement on his or her behalf.

Another positive aspect of Bill 212 is that it provides increased accountability, openness and information to parents, guardians and students about the discipline process and procedure. For example, the legislation requires that the school provide information to parents, guardians and students about any program for suspended students and information about the right to appeal the suspension.

The legislation also places a strong emphasis on transparency and procedural fairness. For example, in circumstances where a principal decides to recommend an expulsion and prepares a report, the parent, guardian and/or adult student is provided with a copy of the report and is given an opportunity to respond in writing. Under the principles of procedural fairness, each student has a right to know what rule he or she is alleged to have violated. In addition, each student has an opportunity under the new legislation to respond to the allegations against him/her and to tell his/her side of the story.

2. Serious Concerns

A number of serious concerns about the changes to the safe schools provisions contained in Bill 212 have become evident over the past year.

(i) Undermining of Progressive Discipline

Policy/Program Memorandum No. 145 released by the Ministry of Education on October 4, 2007 addressed progressive discipline and promoting positive student behaviour. Under the Ministry policy, schools are encouraged to utilize progressive discipline. Progressive discipline is defined as a whole-school approach that utilizes a continuum of interventions, supports and consequences to address inappropriate student behaviour and to build upon strategies that promote positive behaviours.

The Ministry recognizes that in some circumstances, a short term suspension may be a useful tool. In the case of a serious incident, long term suspension or expulsion, which is further along the continuum of progressive discipline may be the response that is required.

The concern arises that given the ability under Bill 212 to appeal a short term suspension and given the difficulty for school boards in convening a committee of three trustees to hear the suspension appeal in the narrow timeframe provided, as a practical matter, in many cases school administrators have chosen to agree to remove the suspension record from the student’s Ontario Student Record (“OSR”) rather than engage in the time consuming appeal process.

Where suspension records are withdrawn from a student’s OSR, the principal of the school or any successor school may not have the basis of previous disciplinary records in order to apply the progressive discipline framework. In this regard, the administrative burden surrounding convening a hearing for a short term suspension may serve to undermine the use and application of progressive discipline in Ontario schools.

(ii) Lack of Resources for Programs for Suspended and Expelled Students.

Under Bill 212, schools are required to provide programs for suspended and expelled students. On August 23, 2007, the Ministry of Education released Policy/Program Memorandum No. 141 regarding school board programs for students on long term suspension and Policy/Program Memorandum 142 regarding school board programs for expelled students. Under Ministry policy it is the responsibility of the board, among other things, to coordinate the types of support required to assist the student in continuing his or her learning. Specifically, both Memoranda provide, “For students with special education needs, boards are required to provide appropriate support consistent with the student’s IEP.”

Given the range of supports that may be contained in a student’s Individual Education Plan, over the past year, it has been extremely difficult for school boards to duplicate this support in an alternative board program for suspended or expelled students. This support often requires a range of services and/or resources, such as an Educational Assistant, specialized equipment or speech and language instruction, that may not be available in an alternative safe schools program.

In its press release, dated June 5, 2007, the Ministry stated that it had allocated $23 million for programs and supports to address inappropriate behaviour and programs for students serving long-term suspensions and programs for all expelled students. There is a concern that, to date, those resources are likely not sufficient to meet the Ministry’s own requirements set out in its Policy/Program Memoranda. For example, in order to meet its requirement to “provide appropriate support consistent with the student’s IEP,” the Ministry will have to provide individual school boards with significantly more funds to provide specialized services and supports in its alternative safe schools programs.

Furthermore, depending on the age of the student, the special needs of the student, the size of the school district and the availability of public transportation, the board may have to provide appropriate transportation to the alternative safe schools programs. To date, the Ministry has not provided funding to transport students to these programs. While boards have been provided with funds to establish programs, they will not benefit students who are not able to access them. It is critical that additional funding be provided to boards to transport students to programs for students on long term suspension or to programs for expelled students.

(iii) Inability to Provide Appropriate Academic and Non-Academic Support

The Ministry of Education is committed to ensuring that all students who are on a longterm suspension have an opportunity to continue their education. Bill 212 requires school boards to offer at least one board program for students on a long-term suspension. A long-term suspension means a suspension of more than five school days. Programs for students on a suspension for six to ten school days are required to have an academic component. Programs for students on a suspension for 11 to 20 days are required to have both an academic and non-academic component.

The problem arises when a school board has only one program location and an incident takes place involving several students where the police have issued non-association orders as part of the bail or recognizance terms. Where these orders are issued, students are not permitted to have contact with each other. In many cases, there is an expectation of the student and his or her parents that the student would be able to attend the program all day, every day, much like a regular school day. Coupled with this is the desire to maximize the student’s credit accumulation while he or she is attending the program. E-learning may not be a viable option for these students as they are precisely the students who require additional resources and supports for their academic program.

In this regard, the programs for suspended and expelled students require significant additional resources to ensure there are a number of locations and a range of academic and non-academic supports to meet the needs of individual students. Ministry research has demonstrated that positive outcomes for students are related to specific program elements that are tailored to meet the needs of each student.

Resources that are dedicated to programs for students on long-term suspensions should also be used to benefit students who have not been suspended, but who have shown behaviours that, if unchanged, could lead to a suspension.

(iv) Inconsistent Application of School Discipline

Bill 212 replaces the previous mandatory suspensions with a more discretionary model. Instead of requiring that a suspension be imposed where a “mandatory suspension infraction” has occurred, a principal is required to “consider” imposing a suspension. In considering whether to suspend and the duration of any suspension, the principal is also required to take into account mitigating factors and other factors. Other factors include a pupil’s history, whether a progressive discipline approach has been used with the pupil and the age of the pupil.

The concern arises that an identical incident could result in very different consequences for the students involved, given the relevant mitigating factors, other factors and reliance on the discretion of individual principals. The introduction of Bill 212 has resulted in different forms of discipline and consequences for individual students arising out of a similar incident. The legislation has resulted in inconsistent application not only in different schools within a school board’s jurisdiction, but in different school boards across the Province. The result has been a patch work quilt of different responses and consequences to students based on a principal’s application of mitigating factors, other factors and reliance on a principal’s individual judgment depending on the circumstances of each case.

(v) Lack of Guidance Regarding the Rights of the Victim

The new safe schools legislation addresses enhanced transparency and accountability, focused on the rights of an alleged perpetrator. In particular, the alleged perpetrator has a right to receive a copy of the written notice of suspension promptly from the principal. With respect to the principal’s investigation of an incident, he or she is required to make reasonable efforts to speak with the alleged perpetrator. In addition, Bill 212 provides that a student who is not a party to a suspension appeal or expulsion hearing has a right to be present at the proceeding and make a statement on his or her behalf.

Bill 212 appears to be silent on the rights of a victim and how a victim and his or her family should be treated.

In Policy/Program Memorandum No. 144 entitled “Bullying Prevention and Intervention”, released on October 4, 2007, the Ministry of Education refers to the serious impact of bullying. The Ministry states that children who suffer prolonged victimization through bullying may experience a range of “psycho-social problems that may extend into adolescence and adulthood.”

In a November 2005 report, entitled “Shaping Safe Schools: A bullying prevention plan”, the Safe Schools Action Team notes that the victims of bullying often deal with “social anxiety and loneliness, withdrawal, physical ailments such as headaches or stomach aches, low self-esteem, school absenteeism, diminished academic performance, phobias, depression, aggressive behaviour.” The Action Team also notes that, in extreme cases, the result may be suicide.

Notwithstanding this research, reference in Bill 212 to the rights of the victim is conspicuous by its absence. A number of school boards have responded to this concern by implementing their own Victim’s Rights Policy. For example, the Toronto Catholic District School Board has passed such a policy. It provides that in every school and every school-sponsored activity, each actual or intended victim who has suffered harm, whether physical, mental or emotional, has the right:

  • of access to immediate required care and physical assistance;
  • to emotional, spiritual and moral support; and
  • to reasonable and adequate protection against future harm, to the extent required in the circumstances.

In light of the fact that Ministry’s own research recognizes the prolonged victimization and range of psycho-social problems resulting from bullying, threats or intimidation, it should consider revisions to the legislation that addresses an appropriate response to the victim and the victim’s family.

(vi) Lack of Flexibility Regarding Time Limits

Subsection 309(4) of the Education Act, imposes a requirement that a suspension appeal must be determined within 15 school days of receiving a notice of appeal, unless the parties agree on a later deadline. A person who is entitled to appeal a suspension must give written notice of his or her intention to appeal to the supervisory officer within 10 school days of the commencement of the suspension.

There is a serious concern that organizing a committee of a board to hear and determine a suspension appeal within 15 school days of receiving a notice of appeal is extremely onerous, stressful, and demanding from an operational and administrative perspective. The work involved in arranging and preparing for a suspension appeal is extensive.

Over the past year, for many school boards the short timeframe set out in Bill 212 has created significant logistic, organizational and administrative problems. Most school boards have retained specialized personnel to organize and administer the appeal process.

The timeframe to hear and determine a suspension appeal does not appear to contemplate an opportunity for a pre-hearing conference which would attempt to settle or resolve some or all of the issues. Pre-hearing conferences have been used by many school boards in an attempt to settle suspension appeals prior to a hearing. Such conferences between school administrators and parents or guardians have been extremely successful in resolving issues on a good faith basis prior to the formal hearing.

Furthermore, the timeframe does not appear to consider the problem that a school may encounter when there is police investigation arising from the incident in question. Under the Criminal Code and other legislation, the police have a duty to investigate criminal and quasi criminal offences. When offences are committed on school property or involve students of a school, it may be necessary for the principal and the police to work co-operatively in fulfilling their overlapping obligations and responsibilities.

If the police have been contacted, the school administrator should halt his or her review of the incident until the police investigation is completed. School administrators are cautioned that if they persist in reviewing the incident, their actions, for example, interviewing witnesses or seizing property, could hamper or prejudice the police investigation. The concern thus arises that in cases where a police investigation is ongoing, school administrators may not be in a position to properly prepare for a suspension appeal. Although under the legislation the school administrators may ask the parents and/or the suspended student to agree to a later deadline, in many cases such an agreement may not be forthcoming. In these circumstances – where there is a police investigation that is ongoing and the parents and/or students do not agree to a later deadline – the school administrator may be forced to quash the suspension and expunge the record of the suspension. As a result, the new legislation may undermine the authority and ability of school administrators to invoke the sanction of suspension.

Conclusion

Bill 212 came into force on February 1, 2008. The legislation has made significant changes to the safe schools provisions of the Education Act. After one year in operation in school boards across Ontario, the legislation has met with both clear successes and serious concerns.

Although the legislation has many positive aspects, such as its emphasis on progressive discipline, alternative programs for suspended and expelled students, bullying prevention and intervention policies and a focus on transparency, accountability and procedural fairness, there continues to be deficiencies that are evident.

Notwithstanding the government’s best intentions surrounding Bill 212, serious concerns have arisen about the effectiveness of the new legislation. Given the narrow timeframes within which to hear suspension appeals, the administrative requirements in conducting an investigation and preparing for a hearing and the requirement for three trustees to hear suspension appeals, the legislation itself may serve to undermine the authority and credibility of school boards and school administrators. For example, in many cases principals have chosen to remove the suspension record from the student’s OSR rather than engage in the time consuming appeal process. The administrative burden surrounding convening a hearing for a short term suspension may serve to undermine the use and application of progressive discipline.

There is also a concern that some school administrators, frustrated by the complexity and additional administrative workload inherent in Bill 212, may choose to go “underground” and use inappropriate methods of student discipline, such as “deadmitting” students from their schools and attempting to remove them from their schools’ register. In addition, some principals may rely solely on police non-association orders to deny a student access to the school. With the laudable intention of keeping their schools safe, a few school administrators could take the position that “desperate times call for desperate measures.” This type of response would indeed be deplorable and regrettable and clearly contrary to the Education Act.

The best-laid plans can sometimes go awry. In the present circumstances, although the Ontario Government may have introduced Bill 212 with the best of intentions, after one year in operation, given the serious systematic and administrative problems outlined above, the government should turn its mind to a number of revisions and amendments, in order to make the new safe schools legislation more effective.