Section 11(a) of the Canadian Charter of Rights and Freedoms states that "Any person charged with an offence has the right to be informed without unreasonable delay of the specific offence." Clearly, this has an actual charge in the legal system in mind. But what about lesser misdemeanours, punished inside an institution? For example, can a school punish a student without informing her about the specific offence?
The analogous situation in the US would have a different legal result.
In the united-states it has been held that a limited set of Due Process protections apply to students in public schools when the school proposes to impose a serious punishment, such as expulsion or lengthy suspension. This will include notice and a hearing, but does not include all the protections that a court would provide. The hearing may be before the principal or school board. This is specifically because of the Due Process clause of the US Fourteenth Amendment, which applies to the states, and the action of a public school is considered "State Action". Decisions of other local government agencies that impose a significant penalty or deprive one of a significant benefit are also subject to at least basic Due Process requirements in the US. This may well not be the case in Canada.
In Carey v. Piphus, 435 U.S. 247 (1978) the US Supreme Court held:
Even if respondents' suspensions were justified, and even if they did not suffer any other actual injury, the fact remains that they were deprived of their right to procedural due process.
It is enough to invoke the procedural safeguards of the Fourteenth Amendment that a significant property interest is at stake, whatever the ultimate outcome of a hearing. . . ."
Fuentes v. Shevin, 407 U.S. at 407 U. S. 87; see Codd v. Velger, 429 U.S. at 429 U. S. 632 (STEVENS, J., dissenting); Coe v. Armour Fertilizer Works, 237 U. S. 413, 237 U. S. 424 (1915).
Because the right to procedural due process is "absolute" in the sense that it does not depend upon the merits of a claimant's substantive assertions, and because of the importance to organized society that procedural due process be observed, see Boddie v. Connecticut, 401 U. S. 371, 401 U. S. 37 (1971); Anti-Fascist Committee v. McGrath, 341 U.S. at 171-172 (Frankfurter, J., concurring), we believe that the denial of procedural due process should be actionable for nominal damages without proof of actual injury. We therefore hold that if, upon remand, the District Court determines that respondents' suspensions were justified, respondents nevertheless will be entitled to recover nominal damages not to exceed one dollar from petitioners.
This was a section 1983 ("under color of law") suit in Federal court.
Goss v. Lopez, 419 U.S. 565 (1975) also held that a school suspension without a hearing violates the Due Process Clause of the Fourteenth Amendment of the US Constitution. This was an action under 42 USC § 1983. The Ohio code Section 3313.66 provided that the principal of an Ohio public school was permitted to suspend a pupil for misconduct for up to 10 days or to expel him. In either case, s/he must notify the student's parents within 24 hours and state the reasons for the action. No hearing was provided for a suspension, as opposed to an expulsion. Some of the students in this case claimed that they were innocent bystanders at demonstrations, who had not violated any rules. No hearing was given to any of the students.
In its opinion on the case the US Supreme Court wrote:
Appellees were excluded from school only temporarily, it is true, but the length and consequent severity of a deprivation, while another factor to weigh in determining the appropriate form of hearing, 'is not decisive of the basic right' to a hearing of some kind. Fuentes v. Shevin, 407 U.S. 67, 86, 92 S.Ct. 1983, 1997, 32 L.Ed.2d 556 (1972). The Court's view has been that as long as a property deprivation is not de minimis, its gravity is irrelevant to the question whether account must be taken of the Due Process Clause. Sniadach v. Family Finance Corp., 395 U.S. 337, 342, 89 S.Ct. 1820, 1823 (1969) (Harlan, J., concurring); Boddie v. Connecticut, 401 U.S. 371, 378 379, (1971); Board of Regents v. Roth, 408 U.S., at 570 n. 8. A 10-day suspension from school is not de minimis in our view and may not be imposed in complete disregard of the Due Process Clause. ... Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary.
Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case. Mullane v. Central Hanover Trust Co., 339 U.S. 306 (1950)
At the very minimum, therefore, students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing.
We hold only that, in being given an opportunity to explain his version of the facts at this discussion, the student first be told what he is accused of doing and what the basis of the accusation is. ... Students whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school. In such cases, the necessary notice and rudimentary hearing should follow as soon as practicable, as the District Court indicated. ... Longer suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures.
Charles S (1971)
In Charles S. v. Board of Education 20 Cal. App. 3d 84 (1971) the Court of Appeals of California, First Appellate District held:
[O]ur consideration of the pertinent fundamental principles, and the authority to which we have adverted, impels us to conclude that due process requirements, upon a suspension, are met by the following procedures:
- Notice by telephone, mail, or other appropriate method, to the parents or guardian within a reasonable time after the suspension, advising of the fact of such suspension, its duration, and the reasons therefor, and further stating that if desired a prompt meeting or hearing will be held at which the suspension may be discussed with school officials.
- If requested, a meeting or hearing within a reasonable time, at which the suspended student may also be present, where the student shall be afforded an opportunity to present informal proof of his side of the case.
It would seem that this decision was modified slightly by Lopez and Piphus a few years later. But even this decision required some sort of written notice as to the alleged offenses for a suspension.
So a 10- or 20-day suspension from school requires Due Process, and may be reversed by injunction if Due Process is not provided, but school officials will not be subject to substantial damages unless the student can prove harm. A longer suspension may require mor formal procedures, ad failure to grant them may be sufficient for damages withotu proof of loss.
The Lopez case clearly established that even short suspensions of less than 10 days require at least basic Due Process, which requires notice of the rule violated (or "charge"), of the evidence supporting this (at least in outline), and some sort of hearing, even if an informal one.
So it appears that notice of the reason for a school suspension is constitutionally required of US public schools.