JFCY in the courts: Special Education

Today the Supreme Court of Canada released its decision in Moore v. BC, a case about a student (Jeffrey Moore) with dyslexia who was denied appropriate accommodation of his disability, thereby preventing him meaningful access to an education in the public school system.

When Jeffrey was an elementary school student, his school board eliminated the remedial program that had been recommended to address Jeffrey's learning disability.  The Board failed to provided adequate alternatives.  Ultimately, Jeffrey went to private school (at the expense of his parents) where he received the appropriate accommodation that he needed in order to meaningfully access an education. 

JFCY intervened in this important case, providing argument to the court on various human rights legal issues around special education.  

JFCY is pleased to report that the court found in favour of Jeffrey, holding that the School Board discriminated against him on the basis of disability because he was not provided with adequate special education services in order to to develop his individual potential. Jeffrey and his family were compensated for the harm he experienced as a result of the discrimination, including the reimbursement of tuition costs that his parents had paid to the private school. 

With respect to the human rights analysis, the Court made it clear that the "service" to which Jeffrey was entitled under the human rights legislation was "education" generally, not "special education" specifically. This ensures that the analysis would not end up in a "separate but equal" approach, ie comparing kids with one disability to kids with another disability.  The access that students with learning disabilities have to an education must be compared to the access that the general student population has to an education.

To this end, the Court stated at paragraph 5 of the judgment: "Adequate special education, therefore, is not a dispensable luxury.  For those with severe learning disabilities, it is the ramp that provides access to the statutory commitment to education made available to all children."


To read the Supreme Court of Canada case, click here.

For news articles, click hereand here.

As a Victim of Sexual Assault, What Can You Do?

Scenario:

Melissa is a 15-year-old girl struggling with math at school. Fortunately, her new math teacher is extremely nice, offering her extra help with her homework after class. One day, when she goes to his office to ask him a question regarding the new assignment, he accidentally brushes her chest. Confused, she does nothing until he puts his arm around her waist and tries to kiss her. Leaving in a hurry, she doesn’t say anything to anyone. The next day at school, the teacher tells her to see him after class. This time, he tries to force her to take off her shirt. When she refuses, he tells her that no one will believe her anyways and that he will give her an A+ on the next assignment if she complies. Scared, she rushes home, unsure of what to do.

What can Melissa do? What are her legal rights?

What can Melissa do?

If Melissa wants to, she can immediately report the crime to her parents, another teacher, her principle or directly to the police. Her first step to the justice system will be reporting to the police whose role will be to investigate the facts of the case to see if Melissa’s teacher can be charged. The earlier she reports the crime, the higher the chance the police will be able to find relevant evidence (witnesses for example). If there is enough evidence, the police will produce a report recommending charges. After going to the police, Melissa can ask for special measures so that she does not have to see her teacher while pursuing these charges.

Melissa’s Legal Rights:

The The United Nations Convention on the Rights of the Child is in force around the world, including in Canada. It lists the fundamental human rights of all children, defined as everyone below the age of 18. The Government of Canada protects these legal rights. Melissa’s teacher has infringed her right to be protected from physical, mental or sexual abuse, neglect or exploitation.

Criminal Code Offences Involved:

According to the Criminal Code of Canada Melissa’s teacher could be charged with sexual interference and sexual exploitation.

Section 151(1) of the Criminal Code of Canada describes sexual interference as: every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years.

Section 153 of the Criminal Code of Canada describes sexual exploitation as: every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person.

Additionally, Melissa’s teacher could be charged with sexual assault. Sexual assault is any form of sexual contact without both parties’ voluntary consent. A sexual assault can also occur when someone threatens to sexually assault another and is able to immediately follow through with that threat. Importantly, sexual assault need not be limited to intercourse. It includes kissing and touching. 

In order for Melissa’s teacher to be found guilty, it must be proved beyond a reasonable doubt that he engaged or intended to engage in a sexual act without Melissa’s consent.

Consent

Consent means that a person agreed voluntarily to take part in the act. If one does not voluntarily agree, then there is no consent. In Melissa’s case, the first time she brushed him off and ran out, and the second time directly refused, making it clear that she did not consent to any sexual activity.

In order to determine if consent was given, a court will look at Melissa’s words, conduct, and reasonable steps that she took. In this case, Melissa said NO and immediately left. If Melissa is interested in reporting these crimes, then it is recommended that she immediately tell her parents/guardian who can then assist her with going further to telling the principal of her school and the police.

It is very common for a person in Melissa’s situation to feel a variety of different emotions, such as embarrassment, guilt, anger or shame.

There are a variety of resources available in order to offer advice or support:


Kids Help Phone: 1-800-668-6868

Assaulted Women’s Helpline: (416)863-0511, outside GTA: 1-866-863-0511)

Justice for Children and Youth: (416) 920-1633, 1-866-999-5329 (outside GTA)

Ontario Coalition of Rape Crisis Centres: http://www.sexualassaultsupport.ca/Default.aspx?pageId=535883

Boost Child Abuse Prevention and Intervention: http://www.boostforkids.org/Home.aspx


The scenario for this post was written by Cydney Kim a JFCY volunteer on the PLE Team.  Cydney is in grade 12 at University of Toronto Schoolds. The legal info was written by Lauren Grossman, a first-year law student at U of T who is volunteering at JFCY through her law school’s Pro Bono Students Canada program. All info was reviewed by a JFCY staff lawyer.

Are youth protected from age-based discrimination?

Scenario:

Jordan, Mary, and John are 16 year-old high school students who are feeling hungry and exhausted after a long day in class! Naturally, a short walk down the road to the local gas station to get some refreshments is agreed upon, and they get going. 

 Upon arrival to the station's store, however, they see a clearly marked sign reading “ONLY 2 STUDENTS IN AT A TIME”. This sign is something the teenagers took offense to; they later expressed their concern with the store clerk in the hopes of some clarification, though they received more offensive comments. The clerk said that teenagers like them are more likely to shoplift, solely because of their age.

The store clerk has had his share of damage over the past years; various items have begun disappearing from his store since the school kids started visiting. As a small business owner, this cannot be tolerated as the ‘disappearances’ are costing him a fortune! It is for this reason; he is taking on a very harsh approach in terms of the operation of his store and his beliefs.

Are there existing laws that protect those under the age of 18 from such age-based discrimination from individuals like the station store clerk?

WHAT DO YOU THINK?

Should young people be protected by the law from age-based discrimination?  Why or why not?

Stay tuned for a new blog post in early October to learn about the law in this area and what, if anything, these youth can do.... 

This post was written by Shawn Malik, a JFCY volunteer on the PLE Team. 

The Criminalization of Homelessness

Can I See Your ID? 

The Policing of Youth Homelessness in Toronto

A report was released this week that explores "the relationship between homeless persons – in particular, street youth - and law enforcement officials". 

Authors of the report: O'Grady, Bill |  Gaetz, Stephen |  Buccieri, Kristy

JFCY Street Youth Legal Services lawyer, Johanna Macdonald, is quoted extensively throughout the report.


For more info, check out The Homeless Hub website or read the full report.   Let us know what you think.

Gay-straight alliances in schools

Read this Xtra article to learn more about what is happening in Toronto

If you are a student and what to learn more about the law around this, please call us at Justice for Children and Youth: 416.920.1633.

Special education and "exceptionality" explained

 Comic picture courtesy of JFCY volunteer Diana Rozo

Blogpost by JFCY volunteer Adrianna P, law student Daniel Lo and JFCY lawyers

Johnny is a 16 year-old grade 10 student. Since entering high school he has found that he is struggling with his course work and his grades are falling.  Johnny is having difficulty successfully completing and understanding his work and he is not performing well on math and English tests.  His teachers referred him for educational and psychological testing in order to determine the cause of his difficulties and the results have indicated that Johnny has a learning disability.   

Johnny’s mom thinks that the teaching styles that were used in elementary school enabled Johnny to get by but now high school is a more intense learning environment and Johnny does not possess the learning skills that are necessary for him to perform to his potential.
Since being formally identified with a learning disability, his principal and teachers feel that Johnny should be placed in a separate special education classroom. They feel that this is where the proper instruction can be given to Johnny and will help meet his needs.   Johnny on the other hand does not want to leave his friends and wants to stay in a regular classroom setting.  

What are Johnny’s Rights in this situation?

In this situation, it seems that Johnny, his parents, his principal and teachers are waiting for a reference to the Identification, Placement and Review Committee (IPRC). The IPRC is the committee that will decide three things: 1) whether Johnny is “exceptional” (ie has special learning needs), 2) what  type of exceptionality does Johnny have (behaviour, communication, intellectual, physical, and multiple);  and 3) what is the appropriate special education placement for Johnny.

Johnny’s parents can request an IPRC by writing a letter to the school Principal.    The law says that the principal cannot refuse to refer the student to an IPRC. A Principal can also refer a student for an IPRC without a parent’s request.

Since Johnny is 16, he is entitled to the following rights:

-    The right to attend his IPRC and to give the committee any information he thinks is useful in deciding his educational needs. In this case, Johnny could present his preference for staying with his current classroom setting because the support of his friends is beneficial to his learning.

-    He is entitled to receive a copy of any information about him that others will give the IPRC. Johnny is entitled to see a copy of the educational and psychological test results that his teachers registered him for.

-    The opportunity to be consulted about his Individual Education Plan (IEP), which contains specific learning expectations and the school’s outline of educational services to address them. In this case, Johnny may request a less intrusive method of service, such as an educational assistant, so as to allow him to stay in a regular classroom setting.

-    His parents can be present.

-    Johnny and his parents may bring a representative to speak for them if they feel more comfortable, or even advocates from organizations such as the Learning Disabilities Association, or the Association for Community Living

-    He may bring an interpreter if needed.

If following the decision of IPRC, Johnny and/or his parents do not agree, they can appeal the decision and may receive a second meeting with the IPRC. If Johnny and/or his parents still do not agree with the decision made, they can appeal to the Special Education Appeal Board, and subsequently the Ontario Special Education Tribunal. In addition, Johnny and/or his parents can file an Application with the Human Rights Tribunal of Ontario if they feel like that Johnny has experienced discrimination based on his disability. IPRC appeals and human rights applications can be complicated and it is important to talk to a lawyer before deciding what to do next. You can call the following organizations for assistance:

Justice for Children and Youth- 416.920.1633 (1.866.999.5329 for outside GTA)

Child Advocacy Project (Pro Bono Law Ontario) – 416.977.4448

Human Rights Legal Support Centre (note: they do not do IPRC appeals) – 416.314.6838

For more information, take a look at this pamphlet on special education.