The author would like to acknowledge the contribution of 2020 Summer Student and 2021/2022 Articling Student Kayla Cockburn.
On July 9, 2020, the Ontario government announced “New Changes to Advance Equal Opportunity for Black, Indigenous and Racialized Students.”  The announcement included a statement that as of September 2020, there would be a ban on discretionary suspensions of students in kindergarten to grade 3.
The government cited recent suspension data indicating that in 2018-19, over 65,000 elementary and secondary students were suspended, with students from historically racialized and underserved communities being over-represented in that group. Approximately 10% of suspensions (6,395) during that period were imposed on students who were in kindergarten to grade 3.
The government indicated that Bill 197: COVID-19 Economic Recovery Act 2020 would give effect to the ban. The Education Act has thus been amended to provide that the Lieutenant Governor in Council may make regulations providing that “pupils in specified grades in elementary school shall not be suspended under section 306 or 310, or that such suspensions may only occur in the prescribed circumstances.” Ontario Regulation 440/20 “Suspension of Elementary Pupils” has since come into effect prohibiting the suspension of students in JK – grade 3:
- under Subsection 306(1) (infractions for which a principal may suspend); and
- under Subsection 310(1) (infractions for which a pupil shall be suspended pending an investigation to determine if an expulsion shall be recommended), unless the principal has first conducted an investigation into the allegation.
The Education Act also provides that in determining the length of suspension for a student in any grade, a principal shall take into account mitigating and other factors as listed in Regulation 472/07. These factors include the age of the pupil and “[w]hether the activity for which the pupil may be…suspended…was related to any harassment of the pupil because of race, ethnic origin, religion, disability, gender or sexual orientation or to any other harassment.”
Along with these mitigating and other factors, a principal considering a suspension must also act according to Ministry direction as outlined in Policy/Program Memorandum 145 “Progressive Discipline and Promoting Positive Student Behaviour,” which states that Principals are responsible for using a range of progressive interventions and supports for addressing inappropriate student behaviour.
 Office of the Premier, “Ontario Taking Bold Action to Address Racism and Inequity in Schools,” Government of Ontario: Newsroom, July 9 2020
 S.316(1.1)(a) [Emphasis added]
 S.3 3
 October 7, 2018