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.

Criminal vs. Civil Cases

In this post, law student volunteer Tracy Chen explains the different between criminal and civil law cases.

Criminal Law

http://martin-karcazes.com/wp-content/uploads/2013/04/Law-books.jpg

The purpose of criminal law is to punish behaviour that offends society as a whole, even though only one person may have been harmed. A criminal case involves prosecution by the Crown (government) against an individual. The Criminal Code contains the offences set out by the federal government that are considered criminal. The person charged with offence is called “the accused” and is presumed innocent until proven guilty.  

In a criminal trial, the prosecution must prove the accused is guilty of the charge beyond a reasonable doubt. In addition, if any evidence was obtained in violation of the accused’s Canadian Charter of Rights and Freedoms rights, the judge may decide not to admit such evidence. For example, in the recent Tori Stafford trial, the judge declared that police had violated the accused, Michael Rafferty’s section 8 Charter right against unreasonable search and seizure. The judge threw out the evidence the police obtained from his hard drive, Blackberry and laptop. If an accused is found not guilty, he or she is acquitted and released.

If the accused is found guilty of a crime, the judge must consider an appropriate sentence, which can include a fine, community service or imprisonment, among others.

Civil Law

The purpose of civil law is to address disagreements between individuals, for example, disagreements arising in business contracts or negligence claims. A civil lawsuit refers to a private case where an individual, known as the plaintiff is suing another, known as the defendant.  

The plaintiff must prove the defendant’s liability to the judge or jury on a balance of probabilities, which means more than 50 per cent (more likely than not). The burden of proof to show that the defendant is liable is lower in civil cases compared to the burden of proof for guilt in criminal cases because there is more on the line in criminal suits where the accused's freedom and liberty is at stake. 

Remedies in civil law suits can be money damages, declaratory (the court can rule on rights or duties of one of the parties), or injunctions (the court can order parties to do or not do something). Money remedies are the most frequent.

A person may undergo a criminal and civil trial for the same conduct. One of the most famous American cases is former football player OJ Simpson, who was charged with the murders of his ex-wife and her friend, was found innocent in his criminal trial, but was found liable in their wrongful deaths in a civil lawsuit. 

             

To read more about the Tori Stafford case: 
http://www.thestar.com/news/gta/crime/article/1176503--tori-stafford-trial-how-michael-rafferty-s-charter-rights-were-violated
To read more about the OJ Simpson case: http://www.trutv.com/library/crime/notorious_murders/famous/simpson/dead_16.html

Sources:

http://www.justice.gc.ca/eng/dept-min/pub/just/08.html

http://canadian-lawyers.ca/Legal-Help-and-Resources/Civil-and-Criminal-in-Canada.html

This blogpost is written by Tracy Chen, a law student at Osgoode Hall Law School. All info was reviewed by a JFCY staff lawyer.

LGBT Rights in Ontario Schools

Scenario:

Mark is a 17 year old student who attends a co-educational high school. Having ‘come-out’ to his school about his sexual orientation, he takes pride in being gay. Yet life hasn’t been so easy for him. Constantly teased by his peers, he feels ostracized by former friends and shunned by his classmates. One day, he finds his locker vandalized and covered in insults. To make matters worse, one of his teachers strongly urges Mark to keep quiet on his identity in order to prevent the escalating reactions. Finding support neither from peers nor a trusted teacher, Mark grows increasingly insecure.

What are Mark’s rights? What can he do?

The rights of LGBT (Lesbian, Gay, Bisexual, Transgender) Canadians are well protected under the Ontario Human Rights Code, as well as under Section 15 of the Canadian Charter of Rights and Freedoms. 

Recently, in June 2012, the Ontario government introduced anti-bullying legislation, known as Bill 13 or the Accepting Schools Acts 2012 that addresses bullying in publicly funded schools. This law came into force in September 2012 and is now valid and enforceable. The Act creates legal obligations for school boards and schools to prevent bullying, issue tougher consequences for bullying, and support students who want to promote understanding and respect for all. The preamble of the law recognizes that:

“[E]veryone — government, educators, school staff, parents, students and the wider community — has a role to play in creating a positive school climate and preventing inappropriate behaviour, such as bullying, sexual assault, gender-based violence and incidents based on homophobia, transphobia or biphobia”

This Act requires all school boards to support students who want to lead activities or organizations that promote the awareness and understanding of and respect for people of all sexual orientations and gender identities, including organizations with the name gay-straight alliance or another name. One important part of the law is that all schools must now allow students to form Gay-Straight-Alliances (GSAs). These groups are geared towards fighting homophobia in schools. They offer support to students who may be dealing with issues and challenges related to their sexual and/or gender identity.

Mark shouldn’t feel as if he can’t express himself. He could go speak to the Principal of his school, another teacher, his parents or someone he trusts. He has rights that should be protected and under the new Accepting Schools Act, must be protected. All students have the right to feel safe and supported in school.

For more information on Bill 13, the Accepting Schools Act: http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=2549

If you have specific legal questions relating to bullying, please contact JFCY at 416.920.1633

If you are a victim of bullying and need support, check out some of these organizations:

•   Kids Help Phone: www.kidshelpphone.ca 1 800 668 6868

•   LGBT Youth line: www.youthline.ca 1.800.268.9688 

•   Bullying Canada: http://www.bullyingcanada.ca/content/239672 1-877-352-4497  

For more on Gay-Straight Alliances (GSA): http://mygsa.ca

If you want to find out more about bullying and how you can help raise awareness and 

prevent bullying, you can look at some of these websites:

•   Web Aware on www.bewebaware.ca

•   Canadian Safe Schools Network on www.canadiansafeschools.com

•   http://www.definetheline.ca/

•   www.bullying.org

•   www.wiredsafety.org 

•   www.stopcyberbullying.org

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 Schools. 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.

The Supreme Court of Canada Combats Cyber-Bullying

In September of 2012, Canada’s top court, the Supreme Court of Canada, struck a blow to cyber-bullies in a case called AB v Bragg Communications Inc, 2012 SCC 46.

Background

The rise of social media platforms has had a drastic impact on the way people communicate. Facebook, the social media market leader, now has roughly 1 billion users. That’s right; almost 1 in 7 people around the world are on Facebook. When used properly, websites like Facebook can have a positive impact on a user’s life. However, these websites can also be a very dangerous tool.

Cyber-bullying (the use of the internet to degrade another person) is becoming increasingly common. Bullies can now hide behind the veil of the Internet to harm their victims in a way that was previously not possible without the help of technology. Social science evidence has shown that cyber-bullying is linked to significant psychological harm in underage victims. As a result of this harm, victims of cyber-bullying are at an increased risk of dropping out of school and, in extreme cases, committing suicide.

The evidence also indicates that these unfortunate outcomes can be avoided if victims are allowed to anonymously report cyber-bullying incidents.

The Supreme Court Decision

In the case of AB v Bragg Communications Inc., the Supreme Court of Canada decided that victims of cyber-bullying have the right to pursue their attackers without disclosing their identity. In other words, victims of cyber-bullying can take legal action against bullies without having to reveal who they are. This was a difficult decision for the Supreme Court to make because it had to balance the interests of the victim against the freedom of the press and society’s interest in having an open, transparent court process.

In AB v Bragg Communications Inc., a fake Facebook profile was set up containing hurtful commentary and sexualized images of a 15-year-old girl. With the help of her father, the girl commenced a defamation lawsuit against her attackers. Defamation actions are intended to protect the reputation of individuals from unwarranted attack. The girl also applied to the court for an order protecting her identity throughout the legal proceedings.

The Supreme Court found that society’s interest in finding out the identity of cyber-bullying victims is not very important, especially when compared to the extremely important desire to encourage victims of cyber-bullying to report their attackers. The court therefore decided to ban the publication of any information that would uncover the victim’s identity.

The Supreme Court’s decision is an important step toward combatting cyber-bullying. 

If you or someone you know is being bullied, tell someone you trust right away, even though this can be very difficult to do. You can also call Kids Help Phone at 1-800-668-6868 for more help in dealing with bullying.

Remember that legal action against bullies is an extreme step to take. Working together with school officials, parents and your peers to solve the problem is probably the best approach. Legal action should only be used as a last resort.

There are people out there – including Canada’s top court – that are on your side and here to help.

To read the case, click here.

This post was written by Brendan Stevens, a law student at the University of Toronto. Brendan is a volunteer on JFCY's PLE Team. Content reviewed by a JFCY lawyer. 

Introducing Johnny: JFCY's Co-op Student (2012-13)

Hello, my name is Johnny! I'm a grade twelve co-operative education (co-op) student at Justice for Children and Youth (JCFY).  It has been my pleasure getting to know the staff lawyers here at the clinic and the important legal services they provide to our community. I choose to take part in co-operative education at JFCY as I am determined to become a lawyer one day. I also choose JFCY as my placement because of the type of legal services they provide and the community they give their support to. 

It is amazing to see a Legal Clinic offering support to young persons on a wide variety of levels. This makes every learning opportunity here significant and that's what I appreciate the most. I think that JFCY will also be able to provide me a hands on learning experience with the law itself while also giving me a place to strive successfully into my potential career. 

With all that said, I'm not only participating in co-op, I'm also involved in the Public Legal Education Team (PLE) and the Youth Action Committee (YAC) here at JFCY as I think it's important to be as engaged as much as I can be when it comes to law! :) 

I look forward to the rest of my term here at JFCY and hope you all have enjoyed my blog!  

See ya later!! 

Johnny! 

Meet Lauren: 2012/2013 PLE Team Leader

My name is Lauren Grossman and I am very excited to be the new PLE Team Leader this year! You might have already seen my name on the blog and wondered who I am, so now I have the chance to tell you a little bit about myself.

I am in my first year of law school at the University of Toronto. I am volunteering as the PLE Team Lead at Justice for Children and Youth through my school’s Pro Bono Students Canada program. PBSC is a student program across Canada that is dedicated to providing legal services at no charge to those in need. There are various opportunities with PBSC for law students to get involved in a number of different legal fields.

I will be at JFCY this year, working with staff lawyer Andrea Luey to lead the PLE Team. I will be writing and/or contributing legal information to the weekly posts on the blog. I will also be helping to run the PLE meetings and create a major project with the PLE team. I am very excited about my position with JFCY!

After 4 years of being away at school, I am very happy to be back living in Toronto! I just graduated from the University of Western Ontario in London, Ontario with an Honours Bachelor of Science in April, I have a diverse range of educational interests as I have a background in medical sciences from my undergraduate studies and I am currently studying the field of law.

I hope you have been enjoying all the blog has to offer and I look forward to hearing any ideas or comments you may have! If you are interesting in joining our PLE team, or would just like some more information, Check this out! Our team has so much to offer. The Youtube committee has some great ideas for the year and we are in the process of coming up with some fun ideas for a major project!

Be sure to comment below if you have any ideas to offer for future blog posts!

However, keep in mind that we do not share any legal advice over our blog, you should contact JFCY directly by telephone to speak to a lawyer regarding legal advice on any personal issues or situations.

I am looking forward to a great year with JFCY on the PLE team!