Canada: Allegation Of Discrimination Not Upheld

A recent 87 page decision by the Ontario Human Rights Tribunal in B.C. and Durham Catholic District School Board and B.C. and Durham Regional Police Services Board, [2014] HRTO 42 (CanLII), considered an allegation of discrimination on the basis of race, colour and ethnic origin with respect to an incident of alleged assault and/or bullying resulting in a three day suspension, as well as a charge of assault.   The allegation of discrimination was not upheld against either the Durham Catholic District School Board or Durham Regional Police and its officer.

The incident giving rise to the discipline and the charge of assault occurred on April 10, 2008 when the applicant was 16 years old.  Following interaction between the applicant and the victim, which also involved the applicant's friends, the applicant was suspended for slapping the victim causing the victim's glasses to fall off and break.  The applicant was also charged with assault.  The applicant filed a Complaint with the Ontario Human Rights Commission in June 2008, alleging that she was not the individual who slapped the victim, and that she was disciplined by the School Board and charged by the Police because of her race, colour and ethic origin.  The Commission's file was transferred under the transitional provisions of the Code

During the hearing, the Vice Chair heard the evidence of many witnesses both for the applicant and the respondent School Board.  The respondent Police Officer involved in charging the applicant gave evidence as well.  In addition to witnesses to the event, the Tribunal considered the evidence of an expert witness, Dr. Osher, Vice-President, Education in the Human and Social Development Program at the American Institutes for Research.

Dr. Osher gave evidence regarding studies conducted, primarily in the United States, demonstrating that there are great disparities in discipline rates involving Black students and most often when discipline policies are discretionary.  The reason for this, he explained is that "social priming can pre-dispose a decision maker to see problems and make disciplinary decisions on the basis of racial stereotypes or unconscious racial bias."   In his testimony, Dr. Osher stated that "where there is a concrete referent to support the imposition of discipline (such as possession of drugs or a weapon), the disparity between these groups virtually disappears.  However, where discipline is imposed for discretionary offences or where there is no concrete referent to support the imposition of discipline, the disparity between rates of discipline for White and Black students appears."  Dr. Osher also testified that it is important that youth receive interventions to assist them to learn how to self-regulate their emotions.

After a careful review and comparison of the testimony by the witnesses, the Vice Chair preferred the evidence of the respondents over that of the applicant and her witnesses.   The Vice Chair found that the decision to suspend the applicant was made as a result of the initial statement of the victim, the confirmation of two other students and the applicant's acknowledgement that she had slapped the victim (she did not acknowledge knocking the victim's glasses from her face). 

The Vice Chair noted that the applicant and victim as well as two students who were interviewed by the vice-principal regarding the incident were Black and the vice-principal was White.  The Vice Chair stated: "I appreciate that VP Duane is White, and so, perhaps unconsciously, may be affected by racial stereotypes about Black youth being more prone to violent and/or bullying behaviour even where the alleged or perceived victims are also Black.  At the same time, this is not a situation where VP Duane discounted or disregarded what she was being told by Black youth.  In fact, she expressed concern for and acted upon what she was told by P.F. and by T.A. as Black youth.  In my view this dynamic makes it even more difficult to substantiate that anti-Black racial stereotypes influenced VP Duane's actions towards the applicant."

Despite opinion evidence that Black youth were more at risk of being disciplined for bullying and assault infractions than White youth, ultimately the decision made by the Tribunal was based on the evidence given by the witnesses and particularly the evidence given by the administrators and police officer, whose evidence was preferred. 

The decision also reviews social science research regarding student discipline.  Of particular importance is the fact that teaching self-regulatory skills as both a preventative measure and as a response to infractions can help prevent reoccurring inappropriate behaviour that is or can lead to serious infractions and disciplinary consequences.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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