Transcript THE CANADIAN CHARTER OF RIGHTS & FREEDOMS

THE CHARTER OF RIGHTS
AND FREEDOMS:
What Teachers & School
Administrators Should Know
Jerome G. Delaney, Ph.D.
Faculty of Education
Memorial University of Newfoundland
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Background:
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Charter came into effect in 1982.
By historical timelines, still in its
infancy.
Slowly but steadily impacting the K-12
school system.
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Purpose of This
Presentation:
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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.
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Role of the Judiciary:
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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)
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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)
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The Concept of
Reasonableness
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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.
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Specific Relevant Sections of
the Charter:
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Section 1:
Guarantee of Rights &
Freedoms
Fundamental Freedoms
Section 2:
Sections
7 – 12:
Legal Rights
Section 15: Equality Rights
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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”.
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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.
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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.
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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.
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Implications of
Section 2 for Schools:
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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. ).
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Sections 7 – 12: Legal Rights
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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.
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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”.
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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)
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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)
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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.
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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.
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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.
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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.
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7.Parents should be given the
opportunity to present an appeal.
Schools should have an appeal
procedure in place.
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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!
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Section 8:
“Everyone has the right to be secure
against unreasonable search or
seizure”.
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This section is of particular significance
to teachers & school administrators
because there are situations which will
necessitate the searching of students’
belongings & lockers.
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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.
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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)
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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.
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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)
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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.
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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.
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3. School authorities will be in the
best position to assess
information given to them &
relate it to the situation in their
schools.
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4.
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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.
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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:
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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.
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2.
The search itself must be carried
out in a reasonable manner. It
should be conducted in a sensitive
manner and be minimally intrusive.
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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)
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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. . .
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Practical Advice Re
Detentions:
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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.
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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.
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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”.
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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:
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as mentioned earlier, students should
be informed of the reasons for their
being assigned a detention(s);
communication between school and
parent is imperative.
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Section 11:
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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:
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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;
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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;
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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).
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Section 12:
“Everyone has the right not to be
subjected to any cruel & unusual
treatment or punishment”.
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Points to Ponder:
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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!
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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!
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Corporal Punishment:
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Prohibited in most provinces in Canada.
Section 43 of the Criminal Code of Canada
does condone the use of corporal
punishment:
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“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”.
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Supreme Court of Canada
(2004):
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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;
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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”.
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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”.
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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”.
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Implications for Teachers &
School Administrators:
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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)
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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.
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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;
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national/ethnic origin: a heightened
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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.
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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!
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Conclusions:
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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.
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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.
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Common sense & reasonableness are
the operative words for teachers &
school administrators in their dealings
& interactions with students.
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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:
[email protected]
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