THE CHARTER OF RIGHTS AND FREEDOMS: What Teachers & School Administrators Should Know Jerome G. Delaney, Ph.D. Faculty of Education Memorial University of Newfoundland 1 2 Background: Charter came into effect in 1982. By historical timelines, still in its infancy. Slowly but steadily impacting the K-12 school system. 3 Purpose of This Presentation: To examine those sections relevant to the everyday work of teachers & school administrators in the K-12 school system; Hopefully, to offer some sage advice as to the interpretation of those relevant sections. 4 Role of the Judiciary: Prior to 1982 (pre-Charter) the courts were mainly preoccupied with the interpretation of provincial/federal laws that impacted on education Judges usually left the running of schools to teachers & administrators (deference) Post-Charter (after 1982) judges were now tasked with judging the laws of the land (Black-Branch, 1997) 5 Applicability of the Charter: “. . . the Charter’s net falls over the actions, policies and decisions of departments of education, school boards, and school administrators. . . Independent or private schools. . . are [also] bound by the Charter” (Watkinson, 1999, p. 27) 6 The Concept of Reasonableness At first blush, the Charter may evoke concern & paranoia in teachers & school administrators; Teachers & school administrators have a statutory duty to “maintain order and discipline in the school . . . ” (Section 24f, Schools Act of NL, 1997) The concept of reasonableness permeates the Charter – nothing is absolute. 7 Specific Relevant Sections of the Charter: Section 1: Guarantee of Rights & Freedoms Fundamental Freedoms Section 2: Sections 7 – 12: Legal Rights Section 15: Equality Rights 8 Section 1: Guarantee of Rights & Freedoms “The Canadian Charter of Rights & 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”. 9 According to Watkinson (1999): every Charter analysis involves a two-stage process; first, the courts must decide whether a challenged law or governmental action limits a guaranteed right; the onus of proving that a law breaches the Charter is on the individual challenging the law. 10 if the court agrees that the challenged law/governmental action limits a guaranteed right under the Charter, then the court has to determine whether the limit upon the right can be justified under Section 1; the onus of proof shifts to the government or its agent which must show that the limit is a reasonable one and one that can be justified in a free and democratic society. 11 SECTION 2: Fundamental Freedoms Everyone has the following fundamental freedoms: a) freedom of conscience & religion; b) freedom of thought, belief, opinion & expression, including freedom of the press & other media of communication; c) freedom of peaceful assembly; and d) freedom of association. 12 Implications of Section 2 for Schools: Example: “Student A is spreading malicious rumors about another student B”. Should student A be protected by the Charter (i.e. freedom of opinion and expression)? Absolutely not! Because there has to be a reasonable limit placed on students in the school setting which forbids these kinds of incidents from happening. The same reasoning applies to the other freedoms in the school setting (i.e. Freedom of association etc. ). 13 Sections 7 – 12: Legal Rights In pre-Charter days teachers & school administrators enjoyed considerable latitude & autonomy re the enforcement of school rules & regulations. Post-Charter days, disciplinary actions taken by teachers & school administrators are subjected to a much greater scrutiny. 14 Section 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 fundamental justice”. 15 Natural [fundamental] justice: “. . . [giving] persons specifically affected by the decision a reasonable opportunity of presenting their case, [being listened] to fairly and [having a decision reached] untainted by bias” (Canadian Law Dictionary, 1995, p. 152) 16 Levin & Young (2002): School discipline practices frequently appear to violate principles of natural justice. For example, teachers often accuse students of misdemeanors and impose punishments on them without explaining precisely what the transgression is and without providing an opportunity for the students’ position to be heard. (p. 117) 17 In the everyday life of schools, it is necessary to “temper” the practicalities of enforcing student discipline policies with the overall intent of the Charter. 18 Some Practical Advice: 1. 2. At all times and especially so in disciplinary matters students should be treated with dignity & respect. Students, depending on the nature & severity of the infraction, should be afforded a reasonable degree of privacy & confidentiality in the resulting discussions. 19 3. Students should be advised of the “problem” that is being confronted. 4. Students should be given the opportunity to present “their side of the story”. 5. Students should be informed of any decisions reached by the teacher/administrator and the rationale behind the situation. 20 6. Parents should be advised of the situation and of any decisions reached re detentions, suspensions, etc. Of course, depending on the severity or gravity of the situation, the teacher / administrator will have to make a decision as to whether or not parents are informed. 21 7.Parents should be given the opportunity to present an appeal. Schools should have an appeal procedure in place. 22 8. One cannot overemphasize the importance of students being accorded due process/procedural fairness (i.e. natural/fundamental justice). 9. It is not only important that justice be done but that it be seen to be done! 23 Section 8: “Everyone has the right to be secure against unreasonable search or seizure”. 24 This section is of particular significance to teachers & school administrators because there are situations which will necessitate the searching of students’ belongings & lockers. 25 According to Watkinson (1999), the central issue around this section of the Charter is the balance between the constitutional right to be secure from unreasonable search & seizure and the legal obligation for school officials to provide safe & secure educational environments. 26 Adding to the complexity of this issue is whether or not . . . school officials when conducting a search of a student, that is, whether they are acting in loco parentis (in the place of the parent) or as agents of the state; and the legality of strip searches, locker searches, and the search of personal property. (Watkinson, 1999, p. 151) 27 The Supreme Court of Canada has ruled that the standard to be applied to searches by school authorities depends on whether or not the school authorities were acting as agents of the police. 28 Brown and Zuker (2002): If the school authorities are acting as agents of the police, they must meet the same standards as the police in order to engage in a search. However, if they are not agents of the police, a different standard is applied. (p. 219) 29 The following advice re searching students is offered as a result of the R. v. M. (1998) appeal to the Supreme Court of Canada: 1. A warrant is not essential in order to conduct a search of a student by a school official. 30 2. The school authority must have reasonable grounds to believe that there has been a breach of school regulations or discipline & that a search of a student would reveal evidence of that breach. 31 3. School authorities will be in the best position to assess information given to them & relate it to the situation in their schools. 32 4. The following may constitute reasonable grounds in this context: information received from one student considered to be credible; information received from more than one student, a teacher’s or principal’s own observations, or any combination of these pieces of information which the relevant authority considers to be credible. 33 The Supreme Court of Canada further stated that the following factors should be considered when determining whether a search by a teacher or principal was reasonable: 34 1. The first step is to determine whether it can be inferred from the relevant Education [Schools] Act that teachers and principals are authorized to conduct searches of their students in appropriate circumstances. In the school environment such a statutory authorization would be reasonable. 35 2. The search itself must be carried out in a reasonable manner. It should be conducted in a sensitive manner and be minimally intrusive. 36 3. In order to determine whether a search was reasonable, all the surrounding circumstances will have to be considered. (www.canlii.org/ca/cas/scc/1998/199 8scc84.html.p. 4) 37 Section 9: “Everyone has the right not to be arbitrarily detained or imprisoned”. Generally speaking, this section does not apply to students in school situations; however, some advice re detentions is offered. . . 38 Practical Advice Re Detentions: Give students a minimum of 1 day’s notice. Re lunchtime detentions, students should be given a reasonable period of time to eat their lunch. The amount of time in detention should be reasonable. 39 In the case of students being assigned detentions in junior high or lower grades, it is suggested that parents be notified of the time and the reason for the detention. Students serving detentions should be in the presence of a teacher / administrator at all times. 40 Section 10: “Everyone has the right on arrest or detention a) to be informed promptly of the reasons thereof; b) to retain & instruct counsel without delay & to be informed of that right, & c) to have the validity of the detention determined by way of habeas corpus & to be released if the detention is not lawful”. 41 This section does apply to students when they are arrested on school property. Police are expected to respect these rights when an arrest is made. A couple of points to keep in mind: as mentioned earlier, students should be informed of the reasons for their being assigned a detention(s); communication between school and parent is imperative. 42 Section 11: This section lists from (a) to (i) the various rights a person has after being arrested. Although not directly relevant to the everyday work of teachers & school administrators, there are a couple of points worthy of note: 43 Unreasonable delay is a theme throughout these rights. Hence, the following advice is offered to school officials when dealing with disciplinary matters: 1. disciplinary incidents should be handled as expeditiously as possible; 44 2. a significant delay in dealing with the specific incident may result in a perception that the incident was not being taken seriously; 3. the “referring teacher’ may feel a sense of not being supported by the school administration; 45 4. the particular student may feel that “s/he has dodged the bullet this time” & walk away from the incident thinking that the incident was “no big deal” (i.e. loss of respect for the teacher; loss of credibility for the teacher). 46 Section 12: “Everyone has the right not to be subjected to any cruel & unusual treatment or punishment”. 47 Points to Ponder: We as educators like to think that “cruel and unusual treatment or punishment” does not happen in our schools. Unfortunately, students are indeed subjected to ridicule, degradation & sarcasm – more so than we think! 48 Students, no matter what age, are highly vulnerable & the impact we have on them as educators is indeed mind-boggling. Regardless of some very negative student behaviors, the onus is on us as professionals to treat students with respect & dignity; granted this is not always easy to do! 49 Corporal Punishment: Prohibited in most provinces in Canada. Section 43 of the Criminal Code of Canada does condone the use of corporal punishment: 50 “Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances”. 51 Supreme Court of Canada (2004): Section 43 is no longer a defence for striking a child under 2 and over 12, for striking a child with a disability, for striking a child in the head, or for using an object to strike a child; force can be used against a child only “by way of correction” as opposed to in anger or frustration; 52 any force applied against a child must be only “minor corrective force of a transitory and trifling nature”; teachers should only use corporal punishment (force) to break up a fight or in self-defence as long as it is “reasonable in the circumstances”. 53 Section 15: Equality Rights 1) “Every individual is equal before and under the law and has the right to the equal protection & 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”. 54 2. “Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”. 55 Implications for Teachers & School Administrators: This section has direct relevance to the area of special education. Re special education, Brown & Zuker (2002) state that “The law provides them with specific entitlements because treating people equally does not always result in equality. Some pupils must be treated differently in order to have equality” (p. 298) 56 Although this Equality Rights section might first appear to be more the concern of departments of education & school boards, it falls to teachers & school administrators to ensure that on a daily & operational basis students are not discriminated against in the classroom. 57 To ensure that these issues are dealt with in as highly a professional manner as possible, the following advice with some caveats is offered: race – conscious efforts by educators dealing with students of another race should be made to ensure that those students are treated the same as mainstream students; 58 national/ethnic origin: a heightened religion: students of non-Christian faiths in awareness is recommended here esp. re certain habits/tendencies peculiar to that specific ethnic origin (e.g. Innu students – very shy & reserved); schools where the majority of students are Christian; a heightened awareness re teachers’ commentaries is recommended. 59 sex: It sometimes happens that students perceive teachers/school administrators as favoring one sex over the other (e.g. male teacher conversing with male students on the topic of sports). Female students may feel discriminated against! A heightened awareness – again! 60 Conclusions: The Charter has transformed the way we look at educational matters from a legalistic perspective; it has made us more aware of the consequences of our actions. All matters of education dealing with students & parents are subject to the scrutiny of the Charter. 61 The Charter is having a “nationalizing influence” on education (MacKay & Sutherland, 2006). The Charter provides parents with a mechanism for challenging the substance of school board decisions. 62 Common sense & reasonableness are the operative words for teachers & school administrators in their dealings & interactions with students. 63 64 For Follow-Up to This Presentation: Please contact Jerome Delaney Faculty of Education Memorial University of Newfoundland St. John’s, NL A1B 3X8 (Tel 737-2071) E-mail: jdelaney@mun.ca 65