13 Reasons Why [things may have been different in Ontario]
Warning, for those who haven’t watched the newest season of 13 reasons why — there are spoilers ahead.
13 Reasons Why ("13 Reasons") is the story of high school students in a fictitious school. While the characters are not real, the issues these students face mimic the realities of many. The show tackles topics ranging from suicide to male rape, sexual assault, bullying, school shooting, and several more that today's teens are afflicted with. The complexities of the relationships, coupled with teenage dilemmas, are the backdrop for some of the most heinous events in the series.
13 Reasons does a great job at showing these interpersonal issues, but I want to switch it up and explore some of the legal issues that the show raises.
Throughout all three seasons, we weren't exposed to just how much of a role the school plays. This post is about how things may or may not have been different had the students attended a school in Ontario, and how our rules would've influenced the story.
My assumptions throughout are that:
the students attend a public school in Ontario,
and that all students are under 18 years old.
1. Our Schools Have a Duty to Report
Hannah Baker is the main character in the first seasons of 13 Reasons. She reveals reasons for committing suicide in 13 pre-recorded tapes. In her thirteenth and final tape, Hannah approached the school guidance counsellor, where she told him about her sexual assault and suicidal thoughts. When she heavily implied that she had been raped, he failed to help her. It was a gut wrenching scene, made all the more powerful when we realize that was Hannah's last cry for help before ending her life in the show.
The significance of this scene is in the role of the guidance counsellor.
In Ontario, it is the law to report suspected child abuse or neglect.
Everyone, including members of the public and professionals who work closely with children, are required by law to report suspected cases of child abuse or neglect. This duty to report in Ontario refers to the obligation for professionals working with children to report suspected child abuse where there are reasonable grounds (Child, Youth and Family services Act, 2017).
Other characters throughout the series have arguably also been owed this duty from the staff at school. Justin and Monty, for example, experienced neglect and abuse from their families. Teachers and their school should have paid attention to some of the signs that may prompt their duty to report.
2. Special Considerations under Ontario Works for Teens
If you've watched the show, you know Justin Foley is a character with lots of baggage.
He comes from an abusive home; his mother became a neglectful drug addict with a rotating set of dangerous and violent boyfriends, including Seth, who strangled Justin on screen and was implied to have abused him in the past. Justin eventually decides to leave home and fend for himself.
Parents are typically in control of their child’s education until they turn 18. However, a student like Justin could take control of his education and potentially get support from the school and other resources if he no longer lived under his parents care.
In Ontario, minors who are 16 years or older may choose to withdraw from parental control under section 65 of the Children's Law Reform Act. This means that these minors have the ability to leave home prior to reaching the age of majority without obtaining the permission of their parents or the courts.
16 or 17-year-olds who live on their own might qualify for Ontario Works (OW). This type of assistance is meant to help with day-to-day needs like rent, food, clothing, and prescription drugs. Caseworkers review a young person's circumstances to determine if they qualify.
Parents won't let the young person live at home, or the young person is in danger (physical or emotional abuse),
Parents cannot or will not support the young person financially,
The young person is willing to enrol in a program or school approved by OW or find work.
Justin could avoid staying in an abusive and neglectful environment with the aid of Ontario Works, while also managing his education with the support of the school and caseworkers.
3. Consequences for Habitual Absence
Ontario's compulsory attendance law requires children of compulsory school age (6 years old to 17) to be sent to school unless legally excused from attendance. Parents can be prosecuted for failing to fulfill their legal obligations under compulsory attend laws; their children can be disciplined for excessive truancy or be judicially ordered to return to school as well as being held in contempt of court if they defy a court order.
Antonio, more commonly known as Tony, is also a student at Liberty High. After his family was deported due to an ICE raid in his home, Tony was left all alone and had to find a way to provide for his family who now lived in Mexico. In the latest season, we learn that Tony hasn’t been attending school and the staff are noticing. His habitual absence has been noticed, but no one knows why.
Tony's circumstances may have required him to miss school. Many students in Ontario have personal circumstances that don’t allow for them to participate during typical school days and hours. School boards across Ontario often offer alternative forms of learning for students.
4. Mandatory Student Discipline
Students in Ontario must adhere to rules made at a provincial level and at a school board level. These rules are found in the school code of conduct. The Education Act explains the consequences of rules that may result in student discipline.
A Principal must consider suspending a student if they:
threaten to seriously hurt another person,
swear at a teacher,
Principal or another person in a position of authority,
vandalize the school or items on school property, or
engage in any other activity listed under Ontario's education act or student code of conduct.
There are many instances where characters in the show might've been suspended.
The Principal must suspend a student and conduct an investigation to decide whether to recommend expelling if they:
have a weapon, including a firearm,
use a weapon to threaten or hurt another person,
physically hurt another person so that person requires medical attention, or
engage in any other activity listed under Ontario’s education act or the school board’s Code of Conduct.
In many instances throughout the show where a mandatory suspension would have been given, the school may not have been aware. But it is understandable that many of these prohibited behaviours were done behind closed doors, or were kept tightly secret by the characters themselves.
Bullying of Tyler, for example is something that could possibly lead to a suspension. Mix that with some hate speech and it becomes a mandatory suspension. Things like trafficking drugs, or committing sexual assault also lead to mandatory suspensions which may result in a principal's report and a recommendation for expulsion.
5. Trouble for Non-School Related Activities
13 Reasons, is in a way, about the interconnectedness of students via technology, and how there is a blurred line between school and home life. Issues at school are able to creep beyond the physical world of the school (perhaps this has always been the case for student life), and into the cyber world during young people personal time.
Thankfully, students are not immune from punishment merely because they aren't committing offences off school property and outside of school time. Building a positive and inclusive school climate requires a “whole-school approach” that is based on healthy and respectful relationships throughout the whole school and the community.
Safe, inclusive and accepting schools support and protect its students.
That's why Ontario's Education Act recognizes the authority of administrators to discipline students for events outside of school-related activities, that negatively affect the school climate and the safety of students.
13 Reasons is a textbook example of how students behaviours outside of normal school hours have a direct effect on students at schools.
6. Sexual Bullying is Bullying
Bullying is bullying is bullying.
13 Reasons has successfully exposed a culture of objectification, sexual bullying and harassment, and how this treatment causes severe damage to women and girls. The final season shows how Jessica was able to challenge this status quo at the school, and how in doing so she was met with overt forms of sexual bullying.
In a healthy school culture, students are engaged in learning because they feel welcome, supported and safe. Bullying, harassment and intimidation are not acceptable at any Ontario school. Each school has a code of conduct that outlines expectations and age-appropriate consequences of unacceptable behaviour.
Under the Education Act, schools must craft policies on how to respond to incidents of bullying and harassment. It is the expectation then, that administration should take any accusation of bullying or harassment seriously, and conduct the appropriate steps to investigate and mitigate against any and all concerns that may affect the safety of students and the school.
Our courts have recognized the liability that may be imposed by schools for failing to react to bullying. In Karam v. Ottawa-Carleton District Board, the Court confirmed that the standard of care owed to a student was that of a careful or prudent parent. The Court found that the student had complained about little incidents to the Vice Principal, who should have been aware of the [bullying] situation.
The show does not explore the role staff should have taken when issues of sexual bullying were raised, but it is the expectation in Ontario schools, that it is not tolerated.
7. Our Schools Believe in Progressive Discipline
Even where a student has done something contrary to the code of conduct and is eligible for a suspension or expulsion, principal's must apply mitigating factors and other considerations to the decisions. Administrators may have a difficult time balancing the rights of the students and the safety of their school.
Every school in Ontario is required to have a progressive discipline policy. Through progressive discipline, principals determine appropriate consequences and/ or supports to help students improve their behaviour while taking into account their circumstances. The goal is to help prevent inappropriate student behaviour from happening again.
Principals will make these decisions after looking at individual circumstances and mitigating factors like the student’s age, stage of social development, special education needs, history and the circumstances of the behaviour. Behaviour occurs in a broader context and can be changed over time. Each decision on discipline is unique for each student. It will depend on the strengths and challenges of that student.
13 Reasons is all about showing the layers and complexities of individual characters. In this third seasons, the complexities of these characters is emphasized in Bryce Walker, who was the antagonist in the first two seasons. In the end, Bryce turned out to be a far more complicated character than people first believed him to be. His crimes are inexcusable, but he did try to make up for those crimes and seek redemption for what he has done. We even learn about the neglect he experiences at home and how this may have shaped his character.
While it is highly unlikely that Bryce could ever achieve any redemption and opportunity to re-enter an Ontario school, his case highlights that students, even at their worst, have personal circumstances that shed some light on what led to poor outcomes, as well as provides an opportunity for schools to find redeeming qualities.
8. Strict Athletic Transfer Rules
Bryce was able to avoid much more humiliation and punishment considering. Perhaps the major punishment he received was being transferred to a new school. In Ontario, typically students don’t have a right to choose which public school they attend, however, Superintendents are a mechanism to facilitate a transfer where it may be necessary.
If we assume Bryce transferred from one public school in Ontario to another, it is likely his sports experience may have be implicated.
For students who play sports this has consequences under Ontario Federation of School Athletic Associations (OFSAA) rules.
No school is able to include in its line-up, any student who has been registered as a transfer from another school within the previous twelve (12) months. In effect, where a student plays a sport at one school, that student is not allowed to immediately to participate in that sport at the new school immediately.
While Bryce was able to switch schools and continue playing football, students in Ontario may face more of a barrier unless they can appeal under one of the exemptions.
9. Accommodating Students' Needs
All students have a right to a meaningful education.
For many characters in 13 Reasons, this was impeded in one way or another. After Hannah’s death, for example, Clay was visibly shook; he was affected by the trauma of her death which had consequences on his ability to focus. Clay's mental health took a turn and had tangible effects on his work in school, and his ability to learn.
Many Ontario students face barriers to learning, as well. These barriers are not necessarily visible and can often be difficult to admit to.
Individual Education Plans (IEP's) in Ontario, are a tool the school can use to ensure a students circumstance does not leave them at a disadvantage. Clay may have been able to benefit from some support and accommodations while he addressed his mental health concerns.
10. Newcomer and Immigrant Experiences
Season three of 13 Reasons introduces us to Ani.
She is a Kenya migrant from the United Kingdom. She is new to both the country and the school. Like Ani, many newcomer students will find themselves in a new environment this school year. Whether they are migrating with their families and working towards permanent residency, or refugees fleeing their home country — their entitlements to education in Ontario is guaranteed.
Attending school as a newcomer may have a few caveats, however.
Any child who is a “resident pupil” in Ontario has a right to attend school without paying a fee. A resident pupil is someone who is:
living in Ontario (not just visiting); and
attending a school in the school board district where the student and parent or guardian live.
The interesting term here is resident pupil, which takes its definition from the immigration act.
Under subsection 49(6) of the Education Act, school boards are required to charge the maximum tuition fee, calculated in accordance with the regulations, to all persons admitted to school who are temporary residents or are in possession of a study permit. Exemptions from these tuition fees are set out under subsection 49(7) of the Education Act.
Ani may not fit the definition of resident, but the education act in Ontario has several exceptions for when a non-resident pupil may attend without paying fees.
As a live-in caregiver, Ani's mother may fall into one of the exceptions under the Education Act.
Many families this school year, may not be eligible to have their child enrolled in school right away because of this financial barrier. This is an opportunity to advocate, as school boards can be lenient upon consideration of the circumstances of each family.
11. Locker Searches
13 Reasons showed us how vulnerable students were to having their lockers searched.
Generally, searches can be divided into three categories.
the personal search,
the locker or desk search, and
the sweep search.
The Ontario court of appeals decision in R v G(JM) represents the standard in student search cases. Given reasonable grounds for a search, school officials should have no problem engaging a search of a student's locker without the results of the search being inadmissible in a trial.
Unlike personal or locker search, a sweep search targets a whole class or school. Under these circumstances, a court is less likely to be willing to treat the search as reasonable, given how intrusive and sweeping in nature it is.
Schools encounter a unique problem when it comes to the issue searched. In Ontario, jurisprudence on personal searches of students have recognized the duality of administrator roles: in some circumstances, the school principal is acting as agents of the state for educational purposes, primarily carrying out their discipliner and related functions under the education act. In other circumstances, the principal's actions may be characterized as agents of the police.
The Supreme Court of Canada found that searches by school officials must be reasonable, authorized by statute and appropriate in the circumstances. Students attending school in Ontario have a reasonable expectation of privacy so as to engage section 8 of the charter, however, students should know that the responsibility of the school is to provide a safe environment and maintain order and discipline, and sometimes it requires search of students and their personal effects. Therefore a student's reasonable expectation of privacy in the school environment is significantly diminished.
Ontario teachers and principals must be able to react quickly and effectively to problems that arise in school to protect their students and to provide the orderly atmosphere required for learning.
12. Police Interviews
If a school incident involves a criminal act, the Principal may also have to notify the police.
Whatever a student says to the Principal about the incident can be passed on to the police. In 13 Reasons, we saw instances where the school worked directly with the police and eventually, where students were approached by the police for questioning.
In Canada, young people accused of a crime have extra protections under the law.
The right to remain silent
The right to know the reason for arrest
The right to retain legal counsel - youth are entitled to legal counsel at arrest, at trial and when a sanction is being used
The right to have an adult or parent present when being questioned by the police
The Youth Criminal Justice Act is extensive and comes with principles that should be adhered to. For the purpose of this article, I want to raise concerns about young people talking to the police without a trusted adult or parent present. It is your right in Canada to have them there with you when speaking to the police.
13. Ontario’s Education System Among the Best in the World
Ontario’s College of Teachers have a high standard and governs itself well.
This province also has mechanisms in place to maintain oversight and ensure the rights and responsibilities of stakeholders in the education system are maintained, whether it’s through school board internal mechanisms, or external tribunals or courts that ensure recognition of human rights.
These are a few ways in which Ontario’s laws may directly apply to students throughout the school year. Of course, children may encounter similar circumstances in the show, but this analysis is not to be conflated with legal advice. The take away I hope readers get, is that there are rules and laws that apply every day at school. Students and families should be familiar with the different issues that they may be challenged with throughout their dealings with the public education system, and be aware that these issues may come with legal implications.