VIOLENCE IN SCHOOLS:
UNDERSTANDING YOUR LEGAL RIGHTS
AND RESPONSIBILITIES
OSBIE RISK MANAGEMENT SEMINAR
November 6, 2008
Eric M. Roher
Borden Ladner Gervais LLP
Tel: (416) 367-6004
E-mail: eroher@blgcanada.com
Lawyers • Patent and Trade-mark Agents

A miracle worker who can do more with less, pacify rival groups, endure chronic second guessing, tolerate low levels of support, process large volumes of paper and work double shifts (75 nights a year out). He or she will have carte blanche to innovate, but cannot spend much money, replace any personnel or upset any constituency.
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School Community Safety Advisory
Board – Final Report – January 10, 2008

Report’s findings show a high number of violent school incidents.
 Since January 13, 2006, the panel found 177 violent incidents in schools across the TDSB, including gun incidents, robberies and sexual assaults.
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“Crisis in Confidence”
 Schools inevitably mirror the communities they serve.
 There is a community-wide crisis of confidence in the ability of the TDSB to ensure violence-free and weapons-free environments in all of its schools.
 There are guns in select school in non-trivial numbers.
 Sexual assaults have increased at alarming rates.
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At Westview Centennial Secondary
School, the panel found:
 One of every three female students said that they have been the victim of sexual harassment at their school over the past
2 years.
 29.3% of female students said that they were the victim of unwanted sexual contact at the school.
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 23% of Westview students said that they had been a victim of robbery or extortion.
 10% reported that they had been attacked by someone with a weapon at school.
 22.5% of Westview students said that they had seen a gun in school in the past two years.
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At C.W. Jefferys, the panel found:
 There are serious or very serious problems at the school with respect to students who carry weapons, drug dealing, bullying, fighting and youth gangs.
 22% of students have been the victim of robbery or extortion on school property.
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 11% of C.W. Jefferys students have been assaulted with a weapon at school.
 19% of female students said that they were sexually assaulted at school over the past two years.
 The vast majority of students will not talk to the police or school officials about crimes they have witnessed.
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 Reasons for not reporting include fear of the offenders, fear of the police and a desire not to upset parents.
 The levels of victimization are consistent with the findings of other high school surveys in Toronto and North
America.
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Among the panel’s recommendations:
 Provincial government create mandatory reporting obligations for all school staff.
 Provide all teachers and administrators with gender-based education regarding causes of gender-based violence.
 All potential storage areas for weapons are subject to non-intrusive searches.
 Consideration given to random usage of
TDSB-owned canine units.
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Margaret Wente, The Globe and Mail –
January 12, 2008

“Although the task force tries to argue that no schools are truly safe because of pervasive racism, sexism, etc., I’m going to crawl out on a limb and guess that the vast majority of them are.”

“Gangs and guns are a localized problem.”
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Margaret Wente, The Globe and Mail

“Toronto isn’t East L.A.”

“To be sure, there are some real safety issues in schools.”
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This Session
 Police/School Board Protocol
 Child and Family Services Act
 Search and Seizure
 Violence Prevention and Early
Intervention
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Police/School Board Protocol
 In 2000, the Ministry of Education released a Provincial Model for Local
Police/School Board Protocol .
 Policy direction of the Ministry that school boards and police services establish a protocol.
 Supports school environments that are safe and caring.
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What is the purpose of the Protocol?
 To confirm the working relationship and appropriate responses where police involvement or intervention is requested or required.
 Sets out the guidelines for interaction among agencies.
 Encourages and maintains a positive relationship.
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What legislation applies?
 For adult students, 18 years of age or over – the Criminal Code .
 For young people 12 to 17 inclusive – the Youth Criminal Justice Act.
 For children under 12 – contact a children’s aid society. No legal authority to charge a child under 12.
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What is the role of the Principal?
 Maintain proper order and discipline in the school (s. 265(1)(a) Education Act ).
 Acts in loco parentis to all students of the school.
 Implements safe schools and violence prevention policies.
 Remains with the student, in cases of police interviews of students at school.
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What occurrences require a police response?
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• Physical assault causing bodily harm;
Sexual assault;
Robbery;
Extortion;
Criminal harassment;
Drug offences, including possession and/or trafficking in drugs;
Weapons offences;
Explosive substance;
Gang-related incidents;
Hate-and/or bias-motivated incidents; and
Threats of serious physical injury.
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What steps should I take when the police are conducting an investigation?
 Educator should halt his/her review of the incident until police investigation is complete.
 Interviewing witnesses or seizing property could hamper a police investigation.
 Once the police have concluded their investigation, the school can commence its investigation.
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What is the process regarding police contact at the school?
 Police will make every effort to minimize disruption to school routines.
 Except in exigent circumstances, police will report to the main office.
 Police will explain the purpose of the visit.
 Principal will co-operate with police investigation.
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What are “exigent circumstances”?
 Urgent, pressing and/or emergency circumstances.
 May include a bomb threat, a person possessing a weapon or a fire on school property.
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What record should I keep of a police visit?
 Name of the officer(s).
 Badge number and any report number.
 Time and date of the visit.
 The people being questioned.
 The name of the issuing authority of any search warrant.
 The nature of charges laid, if any.
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When should I contact the student’s parents or guardians?
 When the police are called, the school will contact the parent or guardian of the student promptly.
 In the absence of a parent, the principal will call an adult relative or other appropriate adult chosen by the young person.
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What steps should I take if I cannot contact the parents or guardians?
 The principal should record his/her attempt to make contact.
 Principal may invite the parent to speak to his or her child prior to the interview.
 Principal will act in loco parentis to the student.
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What should I tell a student prior to being interviewed by the police?
 Any statement given to the police must be voluntary.
 Student is under no obligation to make a statement.
 A statement may be used as evidence in a proceeding against him or her.
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Who is responsible for explaining to a student his or her legal rights?
 Responsibility of the police to explain to a young person his or her rights.
 Principal will inform police of any special circumstances which may impede the student.
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If the police direct me not to call the parents prior to meeting with a student, what steps should I take?
 The principal will comply with specific direction given by the police not to contact a student’s parent.
 Failure to comply with a police direction could expose the administrator to possible liability.
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Where should the police interview take place?

In the privacy of the principal’s office or other private setting.
 No part of the interview should be in the presence of other students.
 Every effort should be made to minimize the level of embarrassment of the student.
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What cautions must be given by the police to a student in order for his or her statement to be admissible in court?
 The statement is voluntary.
 Student is under no obligation to make a statement.
 The statement may be used as evidence in a proceeding against him/her.
 Student has a right to consult counsel, parent, an adult relative or any other appropriate adult chosen by the student.
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Can the school solely rely on the police investigation?

The school’s investigation must be separate from the police investigation.
 School operates under the Education
Act and Board policy.
 Police operate under the Youth Criminal
Justice Act and Criminal Code .
 Different process and standards of proof.
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Should I make notes regarding the incident requiring police response or involvement?
 Yes.
 Important to record details as soon as possible after the events.
 Dates, times and names of witnesses.
 Summary of actions taken by school administration.
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Document, Document, Document
 Details should be recorded at the same time.
 Notes to be kept in separate file.
 Dates, times and names of persons involved in incident.
 Notes should be objective, factual and readable.
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Document, Document, Document
(cont’d)
 Notes should provide chronology of events.
 Summary of action taken by school administration.
 Date and time police were called.
 For violent incidents, complete violent incident report.
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What steps should I take where the police request a copy of my notes?
 Co-operate and supply a copy of all notes to the police.
 Municipal Freedom of Information and
Protection of Privacy Act permits a school board to disclose confidential information to the police to aid in an investigation with a view to a law enforcement proceeding.
 Principal may provide police with oral information about a student, such as address or attendance information.
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Under what circumstances can the contents of an OSR be disclosed to the police?
 With the written permission of the parent or guardian of the student, or where the student is an adult (age 18 or over), with the written permission of the student.
 Through a search warrant.
 Through a subpoena or appropriate court order.
 Principal will make a copy of OSR and provide it to police.
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When charges are laid against a student, how does the school become aware of possible bail terms?
 Police officers involved in the case should consult with school administrators regarding release and/or probation conditions.
 Court record can be disclosed to school administration to ensure safety of staff, students or other persons.
 Information can be shared with teachers on a
“need to know” basis.
 Court record will be kept separate from the
OSR and will be destroyed when no longer required.
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What steps are the police required to take prior to an arrest of a student?
 Police are required to advise the student of his/her right to retain counsel without delay.
 Right to remain silent.

Notify the student’s parents of a place of detention and reason for the arrest.
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Are victims entitled to receive information about how an offence was dealt with?
 Under the Youth Criminal Justice Act, victims are entitled, on request, to receive information about how an offence was dealt with.
 To be informed by the police and not school officials.
 With respect to school discipline, the principal may inform victim that student received appropriate consequence.
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Child and Family Services Act
 Places legal duty on adult members of society and professionals to report suspicions of child abuse.
 A teacher is frequently the first adult person to detect signs of child abuse.
 Early identification and reporting may stop further abuse and assist victims in the recovery process.
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Child and Family Services Act –
Section 72(2)
 A person who believes on reasonable grounds that a child is or may be in need of protection shall forthwith report the belief and the information upon which it is based to a society.
 This reporting requirement applies to every citizen.
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Reporting Requirement of Teachers and
Principals – Section 72(3)
 Every person who performs professional or official duties with respect to a child, including a teacher or principal, and who has reasonable grounds to suspect that a child is or may be suffering or may have suffered abuse, has a duty to report the suspicion and the information on which it is based to the CAS forthwith.
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Child and Family Services Act –
Section 37(2)
 Lists the circumstances where a child is in need of protection.
 These include situations where there is risk of or actual emotional, physical or sexual harm or pattern of neglect by the person having charge of the child.
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It is Mandatory to Report
 It is not the duty of the educator to assess the severity of the abuse.
 It is mandatory to report any and all cases where there are reasonable grounds to suspect that abuse has occurred.
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Suspected Abuse Involving Peers –
Section 72(1)3
 The child has been sexually molested or sexually exploited by the person having charge of the child or another person.
 Where the person having charge of the child knows or should know of the possibility of sexual molestation or sexual exploitation and fails to protect the child.
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Consequences of Failure to Report –
Section 85(1)(b)
 A professional who does not report suspected child abuse is guilty of an offence, where the information on which it was based was obtained in the course of his or her professional duties.
 A person convicted of an offence is liable to a fine of not more than
$1,000.00
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Obligation to Report Overrides Privilege
 The duty to report applies although the information reported may be confidential or privileged.
 No action for making the report shall be instituted against a person who acts in accordance with the legislation.
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R. v. Kaija – Ontario Court of Justice –
April 28, 2006
 Peter Kaija was a teacher with the
Lambton Kent District School Board.
 He was assigned to St. Clair High
School as a phys-ed teacher.
 One of the extra-curricular activities was the senior boys’ basketball team – St.
Clair Colts.
 Mr. Kaija was the coach.
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R. v. Kaija – Ontario Court of Justice –
(cont’d)
 Outside of school, Mr. Kaija was involved as the director of the St. Clair
Mini-Colts.
 The program is available to any boy of elementary school age, regardless of which school he attends.
 There were several coaches with the program, including Jim Miller.
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R. v. Kaija – Ontario Court of Justice –
(cont’d)
 Weekend of February 20, 2005, the St.
Clair Mini-Colts traveled to
Peterborough for a tournament.
 On returning home, a boy disclosed to his mother that Mr. Miller had sexually assaulted another of the boys.
 The information was passed to Mr. Kaija by the mother.
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R. v. Kaija – Ontario Court of Justice –
(cont’d)
 Over the next several days, Mr. Kaija and the parents were involved in several meetings to discuss the allegation.
 Mr. Kaija was charged with failing to report the information received to the
CAS.
 Alleged that he had duty to report in the course of his professional duties as a teacher.
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R. v. Kaija – Ontario Court of Justice –
(cont’d)
Issue:
 Was Mr. Kaija guilty of failing to report the sexual assault to a children’s aid society?
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R. v. Kaija – Ontario Court of Justice –
April 28, 2006 (cont’d)
Held: No
 Mr. Kaija could not be said to have received information in the course of his professional duties.

The scope of the defendant’s professional duties was key to impose a duty to report and scope of those duties had to be based on reality.
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R. v. Kaija – Ontario Court of Justice –
(cont’d)

The teacher’s off-duty conduct did not fall within the scope of his professional duties.
 Charge against Mr. Kaija was dismissed.
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Search and Seizure in Schools
Section 8 of the Charter:
“Everyone has the right to be secure against unreasonable search and seizure.”
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School Searches
 The Courts have held that a school authority can search a student if he or she has reasonable grounds to believe there has been a breach of school regulations.
 School authorities are in the best position to assess information given to them.
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Reasonable Grounds
 Information received from one student considered to be credible;
 Information received from more than one student;

A teacher’s or principal’s own observation;
 Any combination of this information the school authority considers to be credible.
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Not Reasonable Grounds
 Rumors
 Innuendos;
 Hunches; and
 Anonymous tips which are not corroborated.
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R. v. A. M.
 Judgment – April 25, 2008
 Supreme Court of Canada
 Mr. Bristo became principal of St.
Patrick’s High School in Sarnia in
September 2000.
 Mr. Bristo issued open invitation to
Sarnia Police, if sniffer dogs were available, they were welcome to bring them into the school.
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R. v. A. M. (cont’d)
 Police took advantage of this invitation on a couple of occasions.
 Mr. Bristo was concerned about the presence of drugs in the school.
 He received reports of drug use in the school from parents and neighbours.
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R. v. A. M. (cont’d)
 School had zero tolerance policy for possession and use of drugs in the school.
 On November 7, 2002, three police officers arrived with a sniffer dog.
 Police advised principal that they wanted permission to go through the school.
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R. v. A. M. (cont’d)
 Principal informed student body on PA system that police were on the premises and they should remain in classroom until search was conducted.
 Police proceeded to search premises.
 Principal asked police to go to the small gym and search area.
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R. v. A. M. (cont’d)
 There were no students in the small gym.
 The sniffer dog reacted to one of the backpacks by biting at the backpack.
 Backpack included 5 bags of marijuana,
10 magic mushrooms, a pipe, a lighter, rolling paper and roach clip.
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R. v. A. M. (cont’d)

A.M.’s wallet was in the backpack.
 A.M. was arrested.
 Police said that they were not aware of any drugs at the school before they arrived at the school.
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R. v. A. M. (cont’d)
Issue:
 Was the search of A.M. a violation of his section 8 rights under the Charter?
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Supreme Court of Canada
Held: Yes.
 Majority of the Court held that police must have a reasonable suspicion an individual has a narcotic before they can conduct a search with sniffer dogs.
 This search was not authorized by the common law or statute law.
 This was a random and speculative search.
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Supreme Court of Canada (cont’d)
 The objectives of this search were achieved at the expense of the privacy interest and constitutional rights of every student in the school.
 Backpacks objectively command a measure of privacy because of their role in the lives of students.
 Students expect the contents of their backpacks not to open to random and speculative scrutiny of the police.
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Supreme Court of Canada (cont’d)
 Police are entitled to use sniffer dogs on a reasonable suspicion.
 If there are no grounds of reasonable suspicion, the use of the sniffer dogs will violate the section 8 standard.
 All searches are subject to after-the-fact judicial review.
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Supreme Court of Canada (cont’d)
Court concluded:
 A.M. was improperly arrested and charged with possession of drugs for purpose of trafficking.
 Trial judge was correct not to admit the evidence produced by the search.
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Factors to Consider
1. Only principals or designates should conduct search.
2. Must be based on reasonable grounds.
3. Search should be conducted in sensitive manner and be minimally intrusive.
4. Searches conducted with one adult witness.
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Factor to Consider (cont’d)
5.
Conducted in privacy of principal’s office.
6. All pertinent information should be documents.
7. Where prohibited substance is found, contact parents.
8. Any prohibited substances should be confiscated and retained in secure location.
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Locker Searches
 To preserve your right to inspect lockers without notice, remind students that:

School will maintain list of combinations;

Lockers will be inspected regularly; and

School has right to remove locks, where safety concerns arise.
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Violence Prevention and Early
Intervention
 Every student is entitled to a safe and caring learning environment.
 School climate is defined as the sum total of all the personal relationships in the school.
 Founded on mutual acceptance and inclusion.
 When modeled by all, a culture of respect becomes the norm.
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Promoting and Supporting Positive
Behaviours
 School-wide campaigns.
 Celebrations of achievements.
 Healthy lifestyles and relationships.
 Empathy.
 Acceptance of diverse racial and cultural groups.
 Range of club programs and recreational activities.
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Multi-Prong Approach – Creating a
Culture of Respect
 Conflict resolution programs.
 Bullying Prevention policies and programs.
 Peer mediation.
 Restorative justice.
 Character Education.
 Tribes Learning Community.
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Just Say No to Violence
 Encourage students to report incidents of violence.
 Establish Student Hotline, separate from the main school phone.
 Staffed by students who are trained on reporting.
 Establish website where students can anonymously report issues of school safety.
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Staff Development
 Provide staff development in classroom engagement skills, with focus on “at-risk” students.
 Multi-cultural development and equity training should be provided to teachers and administration.
 Teachers working with at-risk communities should be given an orientation on the social and economic conditions affecting students in these communities.
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Dealing a Positive Bond between
Students and Teachers
 Administrators should have enhanced hall presence that ensures adult supervision is visual during class breaks and arrival and dismissal.
 Educate staff regarding the duty to report issues of school safety to administration.
 Active staff development program for teachers emphasizing conflict resolution crisis intervention and self-esteem building.
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Respect Yourself and Your School
Environment
 Keep your school halls and school property clean.
 Remove graffiti or other unwanted markings.
 Repair broken windows, doors or equipment.
 Remove gang colours and other gang symbols (i.e., review the school yearbook).
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Collective Will and Creativity
 Violence and weapons are more that school problem, they are serious societal issue.
 Educators must work in partnership with all stakeholders.
 To promote responsibility, respect, civility and academic excellence in a safe learning environment.
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