1. What is the status of Bill 212?
On June 4, 2007, the Ontario Government passed Bill 212, An Act to amend the Education Act in respect of behaviour, discipline and safety. This legislation sets out significant changes to the safe schools provisions of the Education Act. All of the provisions of Bill 212 will come into force on February 1, 2008. Until February 1st, the current safe schools provisions of the Education Act will apply.
2. Why was Bill 212 introduced?
Bill 212 can be best understood in the context of the recent human rights settlement between the Ontario Human Rights Commission and the Ministry of Education. In July, 2005, the Commission initiated a complaint against both the Ministry and the Toronto District School Board, alleging that the application of the "safe schools" provisions of the Education Act and the Ministry’s and school board’s policies on discipline had a disproportionately negative impact on pupils from racialized communities and pupils with disabilities, and were therefore discriminatory. The complaint against the TDSB was settled on November 14, 2005. The complaint against the Ministry continued and was settled on April 10, 2007. Among other things, the settlement included a commitment by the Ministry to review the safe schools provisions and propose amendments to the legislation, as well as applicable regulations.
3. What are the major changes under Bill 212?
The new legislation includes the following changes:
- extending the right to discipline to include actions that are off school property and outside of school activities where the activity has an impact on the school climate;
- adding "bullying" to the list of infractions for which suspension must be considered;
- removing the power of principals to expel and the power of teachers to suspend;
- requiring that a suspension shall be for no less than one school day and no more than 20 school days;
- removing the process of senior board personnel to review a suspension;
- revising the committee of a board that would hear suspension appeals or hold expulsion hearings to at least three members of the board;
- revising the timeframe that a board must hear and determine a suspension appeal to 15 school days of receiving a notice of appeal, unless the parties agree on a later deadline;
- replacing the existing regime of mandatory suspensions and expulsions with a more discretionary model;
- adding as a party to a suspension appeal or expulsion hearing a pupil who is 16 or 17 years old and has withdrawn from parental control;
- requiring schools to provide programs to suspended pupils and expelled pupils; and
- maintaining the status of expelled pupils as pupils of a school board so long as they are in attendance in a program provided by that board.
4. Is new behaviour now subject to discipline?
Under the current legislation, discipline may only be imposed where the behaviour of the pupil occurs "at school" or where the pupil is "engaged in a school-related activity." This existing limitation has created confusion with respect to improper conduct engaged by pupils either on the way to and from school, at home or in the community. The Bill amends the Education Act to require discipline not only for listed infractions occurring while at school or while engaged in a school-related activity, but also where infractions occur "in other circumstances where engaging in the activity will have an impact on the school climate."
5. What significant changes does Bill 212 make regarding suspensions?
Bill 212 replaces the current mandatory suspensions with a more discretionary model. Instead of requiring a suspension to be imposed where a "mandatory suspension infraction" has occurred, a principal will be required only to "consider" imposing a suspension. In addition, "bullying" has been added to the list of infractions for which suspension must be considered.
Under Bill 212, a principal shall consider whether to suspend a pupil if he or she believes that the pupil has engaged in any of the following activities while at school, at a school-related activity or in other circumstances where engaging the activity will have an impact on the school climate:
- Uttering a threat to inflict serious bodily harm on another person.
- Possessing alcohol or illegal drugs.
- Being under the influence of alcohol.
- Swearing at a teacher or at another person in a position of authority.
- Committing an act of vandalism that causes extensive damage to school property at the pupil’s school or to property located on the premises of the pupil’s school.
- Any other activity that is an activity for which a principal may suspend a pupil under a policy of the board.
6. Are there other factors that a principal must consider?
Yes. In considering whether to suspend a pupil for engaging in an activity outlined above, a principal is required to take into account any mitigating factors or other factors set out in the regulations.
7. What are the mitigating factors or other factors that a principal must take into account when considering a suspension or expulsion?
Ontario Regulation 472/07, entitled Suspension and Expulsion of Pupils, was released on August 22, 2007. For the purposes of specified sections in the Education Act, the following mitigating factors must be taken into account:
- The pupil does not have the ability to control his or her behaviour.
- The pupil does not have the ability to understand the foreseeable consequences of his or her behaviour.
- The pupil’s continuing presence in the school does not create an unacceptable risk to the safety of any person.
For the purposes of certain sections in the Act, the following other factors must be taken into account if they would mitigate the seriousness of the activity for which the pupil may be or is being suspended or expelled:
- The pupil’s history.
- Whether a progressive discipline approach has been used with the pupil.
- Whether the activity for which the pupil may be or is being suspended or expelled was related to any harassment of the pupil because of his or her race, ethnic origin, religion, disability, gender or sexual orientation or to any other harassment.
- How the suspension or expulsion would affect the pupil’s ongoing education.
- The age of the pupil.
- In the case of a pupil for whom an individual education plan has been developed:
(i) whether the behaviour was a manifestation of a disability identified in the pupil’s individual education plan;
(ii) whether appropriate individualized accommodation has been provided; and
(iii) whether the suspension or expulsion is likely to result in an aggravation or worsening of the pupil’s behaviour or conduct.
These mitigating factors go well beyond those set out in the current regulations and it is not clear how they will be applied in practice.
8. What is the duration of a suspension?
A suspension will be for no less than one school day and no more than 20 school days.
9. If there is an appeal, must the suspension still be served by the student?
Yes. The appeal process does not stay the suspension. Where a suspension is appealed, the term of the suspension must still be served by the student.
10. Who will the principal inform?
The principal will inform the pupil’s teacher of the suspension. The principal will also make all reasonable efforts to inform the pupil’s parent or guardian of the suspension, within 24 hours of the suspension being imposed.
11. Who will receive a notice of suspension?
The principal will ensure that written notice of suspension is given "promptly" to:
- The pupil.
- The pupil’s parent or guardian, unless,
- the pupil is at least 18 years old; or
- the pupil is 16 or 17 years old and has withdrawn from parental control.
12. What are the contents of the suspension notice?
The notice must include:
- The reason for the suspension.
- The duration of the suspension.
- Information about any program for suspended pupils.
- Information about the right to appeal the suspension.
13. Is there a requirement to assign a suspended student to a program?
Under Policy/Program Memorandum No. 141, which was released by the Ministry on August 23, 2007, school boards are required to provide a program for students on a long-term suspension (suspensions for more than five school days). The board is required to develop a Student Action Plan for every student on a long-term suspension who makes a commitment to attend the board program for suspended students. For all short-term suspensions (one to five schools days), school are required to provide homework packages to student to help ensure that they do not fall behind in their school work.
14. What is the process under the Bill to appeal a suspension?
The Bill requires a principal to provide written notice of suspension "promptly" to the pupil and his/her parent or guardian (unless the pupil is at least 18 years of age or 16 or 17 and has withdrawn from parental control), and any other person(s) specified in board policy.
Any person entitled to receive the notice is entitled to appeal the suspension by providing written notice of his/her intention to do so within 10 school days of the commencement of the suspension. The board is required to hear and determine the appeal within 15 school days of receiving the notice, unless the parties agree otherwise. The board may authorize a committee of at least three members to hear the suspension appeal.
15. Can the party contact a supervisory officer?
A person who has given notice of intention to appeal may contact the supervisory officer to discuss any matter respecting the appeal. The supervisory officer will have the powers and duties set out in board policy. Bill 212 removes the requirement under the current legislation that senior board personnel must review a suspension before an appeal.
16. Does a student have a right to attend a suspension appeal?
Yes. A pupil who is not a party to the appeal has the right to be present at the appeal and to make a statement on his or her own behalf.
17. What is the board’s authority on a suspension appeal?
The board will:
- Confirm the suspension;
- Confirm the suspension, but shorten its duration; or
- Quash the suspension and order that the record be expunged.
18. Does Bill 212 keep mandatory expulsions?
No. Bill 212 eliminates the current scheme of mandatory expulsions and replaces it with a more discretionary scheme involving suspension, investigation and possible expulsion. The Bill also removes the current power of principals to expel, leaving a committee of the board, made up of at least three members, with the exclusive power to expel.
19. What are the activities that could lead to suspension pending expulsion?
Under Bill 212, a principal will suspend a pupil if he or she believes that the pupil has engaged in any of the following activities while at school, at a school-related activity or in other circumstances where engaging in the activity will have an impact on the school climate:
- Possessing a weapon, including possession a firearm.
- Using a weapon to cause or threaten bodily harm to another person.
- Committing physical assault on another person that causes bodily harm requiring treatment by a medical practitioner.
- Committing sexual assault.
- Trafficking in weapons or in illegal drugs.
- Committing robbery.
- Giving alcohol to a minor.
- Any other activity that, under a policy of a board, is an activity for which a principal must suspend a pupil and, therefore in accordance with this Part, conduct an investigation to determine whether to recommend to the board that the pupil is expelled.
20. What is the process, where an "expulsion" offence is alleged to have occurred?
Under Bill 212, where an "expulsion" offence is alleged to have occurred, the principal is required to suspend the pupil pending an investigation. This investigation must commence promptly. The requirement that any expulsion be imposed within 20 school days from the date the pupil is suspended is continued.
Bill 212 removes the principals’ current authority to expel and limits the principal to recommending an expulsion, if the principal believes this to be the appropriate response to the infraction. In considering whether to recommend expulsion, the principal is directed to consider any mitigating factors or other factors prescribed by the regulations.
21. Who will the principal interview as part of his or her investigation?
As part of the investigation, the principal will make reasonable efforts to speak with:
(a) The pupil.
(b) The pupil’s parent or guardian, unless
- the pupil is at least 18 years, or
- the pupil is 16 or 17 and has withdrawn from parental control.
(c) Any other person whom the principal has reason to believe may have relevant information.
22. What steps are taken if the principal does not recommend an expulsion?
If the principal decides not to recommend expulsion, the principal may: (a) confirm the suspension and the duration of the suspension; (b) confirm the suspension but shorten its duration and amend the record of the suspension accordingly; or (c) withdraw the suspension and expunge the record of the suspension.
23. What steps does the principal take if he or she recommends an expulsion?
At the conclusion of his or her investigation, if the principal decides to recommend an expulsion, he or she is required to prepare a report for the board. The report must include a summary of the principal’s findings, and the principal’s recommendation as to whether the pupil should be expelled from his/her school only or from all schools of the board.
If the principal recommends that the pupil be expelled from his/her school only, the principal is required to provide a recommendation as to the type of school that might benefit the pupil. If the principal recommends that the pupil be expelled from all schools of the board, he/she is also required to provide a recommendation as to the type of program for expelled pupils that might benefit the pupil.
24. Who is entitled to receive the principal’s report?
The principal is required to submit the report "promptly" to the school board and to every person to whom notice of suspension was given. These persons are then entitled to respond in writing to the principal and the board.
25. What is the nature of an expulsion hearing?
If the principal recommends expulsion, the board is required to hold an expulsion hearing. The board is entitled to authorize a committee of at least three members to conduct the expulsion hearing. A hearing must be held by the committee within 20 school days since the student was suspended, unless the parties to the hearing agree to a later deadline.
At the hearing, the board is required to consider the submissions of the parties, any mitigating factors or other factors prescribed by the regulations and any written response that was provided to the principal’s report recommending expulsion.
26. What options are before the board at the conclusion of the hearing?
At the conclusion of the hearing, the board must decide whether to expel the pupil at all, and, if so, whether the expulsion will be limited to an expulsion from the pupil’s school only or whether the expulsion will be a full board expulsion.
Where the board decides to expel a pupil, it has a further decision to make. If the board decides to expel the pupil from his or her school only, the board must assign the pupil to another school of the board. If the board decides to expel the pupil from all schools of the board, the board must assign the pupil to a program for expelled pupils.
27. If there is a decision not to expel, what steps must the board take?
If the board does not expel the pupil, with respect to the original suspension imposed, it will:
(a) confirm the suspension and the duration of the suspension;
(b)confirm the suspension, but shorten its duration, even if the suspension that is under appeal has already been served, and order that the record of the suspension be amended accordingly; or
(c) quash the suspension and order that the record of the suspension be expunged, even if the suspension that is under appeal has already been served.
28. If there is a decision to expel a pupil, what steps must the board take?
Where the board expels a pupil, it is required to given written notice of the expulsion promptly to the pupil and any other parties to the expulsion hearing. The notice must set out the reason for the expulsion, a statement indicating whether the pupil is expelled from his or her school only or from all schools of the board, information about the school or program for expelled pupils to which the pupil is assigned, and information about the pupil’s appeal rights.
29. Can the board’s expulsion decision be appealed?
Yes. The new legislation provides for an appeal of the board’s decision to the Child and Family Services Review Board. To appeal the board’s decision, a person who is entitled to appeal the decision must give the Review Board a written notice of appeal within 30 days after the date on which he or she received the notice. The practice of the Review Board is to conduct a trial de novo, effectively a full re-hearing of the case.
30. Is there a requirement to assign an expelled student to a program?
Yes. Under Policy/Program Memorandum No. 142, which was released by the Ministry on August 23, 2007, school boards are required to provide a program for students expelled from all schools of the board. This program is required to have academic and non-academic components. The academic component must follow the curriculum outlined in the Ontario curriculum policy documents, unless the student has an IEP that provides for modifications to the Ontario curriculum or an alternative program. The non-academic program is intended to assist expelled students in the development of long-term positive attitudes and behaviour.
31. If a student receives a full expulsion, can he or she still attend schools of other school boards?
Yes. A full expulsion will no longer bar pupils from enrolling in and attending schools of other school boards. If the other school board was aware of the expulsion, it has the choice of permitting the pupil to enrol in the pupil’s home school, assign the pupil to a specific school or require the pupil to attend a program for expelled pupils.
32. Does an expelled pupil continue to be a pupil of the board that expelled him or her?
Bill 212 provides that an expelled pupil continues to be a pupil of the board that expelled him or her, so long as the pupil attends a program for expelled pupils offered by the board or by another board under an agreement between the boards in question. By contrast, the expelled pupil ceases to be a pupil of the board if the pupil does not attend a program for expelled pupils to which he or she is assigned, or if the pupil registers as a pupil of another board.
33. Are bullying and cyber-bullying addressed in the proposed legislation?
While they have been addressed in Bill 212, bullying and cyber-bullying are not the main focus of the Bill. The Bill does add bullying to the existing list of infractions for which suspension must be considered. Under Policy/Program Memorandum No. 144, released on October 4, 2007, bullying is defined as ”a form of repeated, persistent, and aggressive behaviour that directed at an individual or individuals that is intended to cause (or should be known to cause) fear and distress and/or harm to another person’s body, feelings, self-esteem or reputation. Bullying occurs in a context where there is a real or perceived imbalance.” The amendment which will permit discipline for conduct which has an impact on the "climate of the school" will be useful in allowing principals to address cyberbullying, which may take place off school property.
34. Has the Access to School Premises regulation been changed under the new legislation?
Under Ontario Regulation 471/07, the Access to School Premises regulation will not apply to a pupil enrolled in the school or to a pupil attending a program for suspended or expelled pupils that is located on school premises. However, students can still be excluded from a school. Under clause 265 (1)(m) of the Education Act, a principal may refuse to admit to a school a person whose presence would in the principal’s judgment be detrimental to the physical or mental wellbeing of the pupils.
35. Will the current legislation continue to apply regarding suspensions or expulsions imposed before the Bill comes into force?
Yes. The existing statutory scheme will continue to apply with respect to any suspensions or expulsions imposed before the Bill comes into force. If the infraction occurred before the Bill comes into force but no action has been initiated by the board, the new statutory scheme will apply. As indicated above, Bill 212 will come into force on February 1, 2008.