What follows is a summary of some of the reporting that OFTP received from this event in Court.
Cambridge Case - Part 1
A while ago I wrote a note about a family in Cambridge charged with truancy. As you may recall, the family decided to home school one of their 3 children because of difficulties in school.
Today, Mar. 19, 2001 the parents were formally arraigned by a Justice of the Peace in a Kitchener court house with charges laid under Sub-section 30(1) of the Education Act.. They pled not guilty. Their 15 year old daughter is charged under Sub-section 30(5) of the Education Act. She also pled not guilty.
The trial was supposed to start at 10:00 a.m. However, the justice who was supposed to preside was still tied up with another case. A last minute substitute was appointed and the proceedings began at approximately 12:30 p.m.
The prosecution lawyer, a seasoned lawyer named Mervyn Villemare (I may not have spelled his last name correctly) started the school board's case with an argument that this case should not be decided by the court but through the inquiry process dictated by the MET and the school board. He cited the 1986 Supreme Court decision in "Jones" to back his arguments.
The defence lawyer, a younger individual with about 10 years of experience countered that argument with Ontario Justice Kent's decision in "Beauchamp" in 1979. As well, the prosecution was getting ahead of itself in using arguments better made during a trial.
The justice agreed with the defence counsel and the trial proceeded.
The justice then raised the concern - could all 3 be tried at the same time in a quasi-criminal proceeding? Could a possible young offender be tried with adults at the same trial. After hearing some legal arguments but no objections from either party the proceedings continued.
The prosecution led the way with six witnesses. A superintendent, an attendance counsellor, a school principal, a guidance counsellor, the inquiry officer appointed by the MET, and the school vice-principal.
As expected, all witnesses expressed great concern for the welfare of the child, that it was the sole responsibility of the school/school board to monitor and determine "satisfactory instruction" and the total lack of cooperation from the family.
The family had written to the school board in October of 1999 that they were withdrawing their daughter from school and would continue her education at home. This letter was entered as evidence by the prosecution and marked as Exhibit #1. The prosecution also entered as evidence the vice-principal's response to that letter. In it the vice-principal had stated that the family was now solely responsible for the education of their daughter. Yet, on the witness stand the prosecution witnesses all stated that it was the school/school board's responsibility to determine satisfactory instruction as suggested in the Supreme Court decision in "Jones". Under this decision, they maintained, it was their responsibility to examine and approve the resources, materials and work that the daughter did. The school maintained attendance records of the daughter even after she was withdrawn from the school to be taught at home. The attendance records were entered as Exhibit #5.
The defence cross-examined each witness on the legal requirements under the Education Act to monitor and assess satisfactory instruction. All reluctantly admitted with some prodding that they were acting based on a policy developed by the board under instructions from the ministry.
All that is, except the inquiry officer appointed by the MET, a Mr. Gary Diamond, former Provincial School Attendance Counsellor and now under contract with the MET as an Education Officer. Mr Diamond maintained, that by inference in Sections 24 through 30 of the Education Act, school boards have the responsibility to monitor and assess home schooling programs.
The prosecution also used medical records and letters from doctors and counsellors that the daughter had been examined by. The school had obtained these records earlier via a consent form signed by the father when he was still trying to work things out between the school and his daughter. One letter stated that the medical condition suffered by the daughter would not preclude her from attending school.
After the prosecution had completed their presentation of their case the court recessed for lunch from 1:20 to 2:30p.m.
The defence began their case by calling the first of three witnesses. The first to be called was an OFTP representative. He was led by the defence lawyer through a series of questions on how home schooled children could successfully pursue post secondary school education without ever being in the public school system. The defence then pursued a line of questioning on the inquiry conducted by the MET. It was brought to the court's attention that their is no legal requirement for parents to have home school programs approved by the board. Parents who withdraw their child from the public system assume responsibility for their child's satisfactory instruction and do not require approval from the board.
On cross-examination, there was some bantering back and forth between the witness and the prosecution lawyer over case law. The propriety of laying truancy charges versus following the correct procedure in conducting an inquiry first was discussed. The fact that the MET does not carry out "legal" inquiries was brought out. The witness maintained that the Jones decision has no bearing in Ontario for two reasons: 1. Despite the fact that Ontario was represented at the case, the attorney general took no action and, 2. because certification by school boards is required by Alberta law, and not by Ontario law, the decision does not apply. The Beauchamp case is the bench mark for Ontario.
The second witness is the star witness. The father was the key defence witness. The lawyer led the father through the various series of events on why the daughter was withdrawn from the school while her twin sister and older sister are still in school. The degree of cooperation between the school and the family was highlighted. The school board had indicated in their case, that the school nor board was obligated to help materially in the home school program. The father stated that he was told he was not going to receive any help from the school board.
The defence then discussed the program of instruction for the daughter. The materials and costs were itemized. When the defence attempted to have all the texts, CDs and workbooks entered as evidence, the prosecution objected.
The prosecution stated that they had had no opportunity to examine them as suitable materials to indicate satisfactory instruction as was their right under the Jones decision. There was a series of legal maneuvering by the prosecution to have the justice call for a new inquiry as per Sub-section 30(7) of the Education Act to have this material examined by "education experts". The defence countered it was the legal for them to be entered as evidence solely as materials being used (ownership) and that the prosecution had no right to examine them as for suitability in satisfactory instruction. The prosecution had been given in advance a list of all the materials being used.
Since the justice was not familiar with the arguments in the Jones case, he recessed the court for five minutes so he could read it and make a decision. Well, the recess took 30 minutes instead of 5. When court resumed session, the justice allowed the materials to be entered as Exhibits 13 thru 24 as per the defence argument.
On cross examination the father handled himself extremely well. Even when the prosecution attempted to mock his level of education to the point of entering as evidence, Exhibit #25, a letter to the school board with a miss-spelled word, he did not lose his calm demeanor. This was after having worked the night shift, not having any sleep and being under tremendous pressure and stress over the last number of months. He also explained very clearly the use and purpose of a book on how to prepare for a GED examination to the prosecution lawyer.
The court adjourned at 5:10 p.m. when the prosecution was finished with cross-examination.
The trial will resume session on Mar. 27, 2001 at 10:00 a.m. A full day has been set aside.
Cambridge Case - Part 2
Riddle: What do you get when you cross refusal to call for an inquiry with failure to cooperate at an inquiry?
Answer: another inquiry!
Does the riddle or the answer make sense? Well, let me explain how the answer was arrived at.
The Cambridge Case resumed proceedings at 10:00 a.m. in a Kitchener court house this morning - Justice Rojak presiding.
The defence called its last witness, the 15 year old home school student, to the stand. She went through her program of instruction with the defence lawyer. All her workbooks were entered as evidence, Exhibits 27 through 33.
She also stated she wants to finish high school at home and then continue her education with the aim of becoming a teacher. She feels positive about her learning experiences and progress at home.
The cross examination took her through her turbulent history in the various schools she was in and her resultant illnesses and depression. She held up well during this questioning breaking down in tears only once.
This took until approx. 10:30 a.m
The next hour turned into a bit of a circus. The prosecution attempted to bring back 8 original and new witnesses as reply evidence to counteract the defense's position.
The defense called one reply witness to close out the testimony.
The defense reiterated its position:
The family obeyed the law by informing the school that the child was being with drawn to be taught at home. There is no obligation to disclose information to the board. "Satisfactory instruction" can be determined by the judge. The Beauchamp case provides procedural and onus obligations.
Jones provides little help because of statutory differences.
The prosecution summation consisted largely on reliance on the Jones case.
The state has compelling interest in the education of its citizens and is in the best position because of its expertise to determine satisfactory instruction.
After summations ended at 12:00 the court recessed until 2:15 p.m. for the decision to be heard.
Actually it took Justice Rojak until 3:15 before he had his judgement ready.
The Justice went through his process in determining his decision:
-attendance file clearly indicates absence of the student from school - uncontested evidence
-parents had informed the school by letter that home schooling was going to take place - uncontested evidence
-school had outlined expectations by policy & letter on what the school expected - uncontested evidence
The Justice reviewed the school board's policy and what it contained. He made this important observation: "Policy documentation is only binding to the organization that develops that policy." The justice considers that all those under the jurisdiction of the organization are bound by it. Students who are taught at home in the jurisdiction of a board are part of that organization and consequently are bound by the policy of the resident board.
-Waterloo District Catholic School Board policy allows for differences in home schooling programs to those used in its schools. Therefore the policy is objective and does not bind parents to public school standards.
He excused, for reasons I did not understand, the board's failure to ask for an inquiry from the PSAC in accordance with Sub-section 24(2).
Justice Rojak stated that Sub-section 21(2) does not require reasons to be given for providing "satisfactory instruction at home or elsewhere."
Therefore all the reasons given or lack of reasons for removing from or not sending children to school are irrelevant to the case.
Does the state have the need and/or right to know what is being taught?
It was obvious from the evidence and exhibits that instruction was taking place at home. But is it "satisfactory"?
-the history of the various meetings and court ordered inquiry was reviewed.
-the lack of parental cooperation made it impossible for the inquiry conducter to determine.
The Justice reviewed the Beauchamp case - could he follow it? There were too many differences between it and this one. For example - in Beauchamp an inquiry had taken place with the result of finding a lack of "satisfactory instruction". The resultant order was ignored. Charges were laid. In court neither the board or the MET could show that they had treated the case fairly and objectively. Therefore the court found in favour of Beauchamp.
This situation is different. This was a court ordered inquiry with a report due to the court. Since a proper inquiry could not be held because of the lack of parental cooperation, it became the duty of the defence to prove to the court that "satisfactory instruction" was taking place. The Justice found that the defence had failed to do this.
Justice Rojak noted that the Education Act placed no legal obligation on the parent to cooperate at an inquiry.
The Justice stated that he did not have the expertise to determine satisfactory instruction.
He referred to the Jones case. He found that this decision is pertinent to Ontario in the following ways:
Pg. 25 - school officials are best for assessing adequate programs of instruction.
Pg. 26/27 - if treatment by school officials is considered unfair, then the courts can be asked to intervene. This can be done in one of two ways -
Apply to the court for relief of an unfavourable decision by the inquiry or ignore the order under Section 24(2) and wait for charges truancy charges to be laid.
He also found that the rendering of "satisfactory instruction" is less stringent than Alberta's "efficient instruction".
He concluded: The court cannot decide what is "satisfactory" instruction.
The fact that instruction is taking place at home is not in doubt but the question of it being "satisfactory" is.
Therefore, he found the parents guilty under Sub-section 30(1).
However, since the daughter was following the instructions of her parents and was led to believe she was obeying the law by her parents, he found her not guilty under Sub-section 30(5).
Now for sentencing:
Justice Rojak asked for recommendations from both the prosecution & defense counsels.
The prosecution suggested that a $200 bod be posted by each parent, that part of the probation terms include forced attendance at school, that a prescribed school instruction program be followed and that the parents be ordered by the court to cooperate and that the child could be excused from attendance at school id she obtain a medical certificate. The justice did not look pleased.
The defense counsel recommended that the justice impose the allowable $200 fine. The justice definitely was not pleased.
Rather, he ordered that the two parties come up with a settlement and gave them 15 minutes to do so. The court was recessed for 15 minutes.
It was agreed by both parties to have the materials examined and the student interviewed by Mr. Leduc, Superintendent of Schools from 1:30p.m. to 3:30p.m. on April 6, 2001. He will determine if the program is "satisfactory". The inquiry is to take place at the mutually agreed location of St. Benedicts Catholic School in Cambridge and the interview would be conducted in the presence of a parent.
Upon reconvening the session, the justice decreed this was acceptable to the court. He authorized release of the required exhibits to a duly authorized person from the school board who is to sign for the receipt of the exhibits with the proviso that they be returned to the court should the defense appeal the decision.
The sentence to the parents was suspended.
The court adjourned at 5:00 p.m.
Hence the answer to the riddle.
Let me try to answer your questions by explaining what I got out of all of this:
1. The justice clearly did not want to deal with this issue. He wanted the two parties to settle it between themselves. The court has no expertise in determining "satisfactory" instruction.
How does he do this? Both the school board and family had made mistakes in this area. Although, to some extent, he excused the school board of not calling for an inquiry under 24(2), he also was bound by what the original justice did in ordering an inquiry.
The justice believed there is enough leeway in this particular school board policy so as not to violate the rights of parents or place an undue burden upon them. He agreed with the prosecution that school boards have the "expertise" to determine "satisfactory" instruction, the key issue, according to Justice Rojak, in 24(2) "as to the validity of the reason or excuse for non-attendance and other relevant circumstances" when the excuse used by parents is that they are providing "satisfactory instruction at home or elsewhere".
2. School boards can inquire in 24(2), that is the law. If parents believe they are treated unfairly they have two options. Apply to the courts for relief or ignore any order made under the inquiry process and wait for charges to be laid. Further, the Education Act does not compel parents to cooperate with an inquiry.
3. If charges under Section 30 are laid, the parents can defend themselves in court. The parents can hire their own "education experts" and have them testify as expert witnesses. They do not have to rely on school board or MET people. You see, despite the mound of material presented as evidence by the defence, the justice said that that did not help him determine if it was satisfactory. The defence did not provide "expert" testimony. The justice acknowledged that instruction was taking place. The question as to it being "satisfactory" was not answered, in his opinion.
This raises another interesting possibility. We could lobby the PSAC to appoint one or more "education experts" that we found acceptable and have them appointed to conduct or co-conduct an inquiry. There is nothing in the Education Act to prohibit this.
4. The justice found the parents guilty. Section 30(1) states, "A parent or guardian of a child of compulsory school age who neglects or refuses
to cause the child to attend school, unless the child is legally excused from attendance, guilty of an offence and on conviction is liable to a fine of not more than $200." The justice found that the child was not "legally excused from attendance'' because "satisfactory" instruction was not shown to be given. He had to if he wanted to force the parents to talk to the school board. In the settlement, two very important parental rights were upheld:
- The inquiry does not involve access to or inspection of the child's work area in the home as both the school board & MET appointed conductor insisted on.
- No interview of the child is allowed without a parent present. The board had insisted on this as well.
The justice upheld the settlement. When he got them to agree to talk, he suspended sentences. There are no fines, no probation, no condition except that parents and school officials discuss the education program of the child. In light of Section 24, that seems reasonable.
This court case does not mean that registration with school boards is mandatory. It does not mean that program plans have to be approved in advance. This case does not even address as to what would happen if there is a major disagreement at the new "inquiry".
There are strange things at work here.
1. On four occasions, the school board has six or more people tied up in court for a half a day or more.
2. Gary Diamond spent four to five full days on this case.
3. The school board, in court, paints the child as a disruptive, undisciplined, vulgar individual to the point where one wonders why the school board would want her back in school.
4. The school board was in a great rush to get this matter heard. They even excused one of the accused, the mother, from appearing in court. She needed surgery to repair a herniated disc.
They would not wait until after she recuperated.
So I think your conclusion is correct. If there was no civil suit, there would have been no truancy charges.