EADM© 2007

W. R. Dolmage

Reasonable Search?Reasonable Search?

Suddenly, to Rodney's horror, the police arrived with nerd-sniffing dogs.

Suddenly, to Rodney's horror, the police arrived with nerd-sniffing dogs.

EADM© 2007

W. R. Dolmage

The Legal Authority to SearchThe Legal Authority to Search

Recall that the Education Act requires the Principal and teachers to maintain proper order and discipline in classrooms, in the school, on the school grounds and at school sponsored activities. In addition both are charged through their common law “duty of care” with protecting the health, comfort and welfare of students. Responsibility implies authority.

Recall that the Education Act requires the Principal and teachers to maintain proper order and discipline in classrooms, in the school, on the school grounds and at school sponsored activities. In addition both are charged through their common law “duty of care” with protecting the health, comfort and welfare of students. Responsibility implies authority.

EADM© 2007

W. R. Dolmage

Searching LockersAnd Other School Property

Searching LockersAnd Other School Property

It can be argued that if students rent lockers, locks or both, they acquire some rights to privacy in their use of the rented property. However, a locker search is not a highly intrusive type of search and the Principal does have control over Board property (delegated by board). As the owners, the Board probably retains some right to inspect its property, given that there is some reason for doing so.

Blanket or Dragnet type searches have been found to be unreasonable except in extreme cases. Schools should have students sign, at the time of accepting a locker, a statement of terms and conditions of use which acknowledges that the school retains ownership of the locker and the right to open it at any time, and the right to seize any item in the locker where possession of the item by a student is contrary to law or to a school regulation.

Empty, unlocked lockers are an invitation; don’t make the offer!

It can be argued that if students rent lockers, locks or both, they acquire some rights to privacy in their use of the rented property. However, a locker search is not a highly intrusive type of search and the Principal does have control over Board property (delegated by board). As the owners, the Board probably retains some right to inspect its property, given that there is some reason for doing so.

Blanket or Dragnet type searches have been found to be unreasonable except in extreme cases. Schools should have students sign, at the time of accepting a locker, a statement of terms and conditions of use which acknowledges that the school retains ownership of the locker and the right to open it at any time, and the right to seize any item in the locker where possession of the item by a student is contrary to law or to a school regulation.

Empty, unlocked lockers are an invitation; don’t make the offer!

EADM© 2007

W. R. Dolmage

Searches of the Student’s Propertyor Person

Searches of the Student’s Propertyor Person

The decision of the Ontario Court of Appeal in R. v. J. M. G. found that Principals do have lawful authority to conduct a personal search of a student suspected of possessing narcotics.

They said this power was a necessary incident of the Principal’s duty to ensure proper order and discipline

It was not clear whether this power would extend to teachers

The decision of the Ontario Court of Appeal in R. v. J. M. G. found that Principals do have lawful authority to conduct a personal search of a student suspected of possessing narcotics.

They said this power was a necessary incident of the Principal’s duty to ensure proper order and discipline

It was not clear whether this power would extend to teachers

EADM© 2007

W. R. Dolmage

What About The Protections Guaranteed In §8 Of The Charter?

What About The Protections Guaranteed In §8 Of The Charter?

Charter §8 - everyone has the right to be free from unreasonable search and seizure.

§8 was found to apply in the J. M. G. case. The court assumed that the Principal was acting as an agent of the state, and not only in loco parentis

How Do We Know What Constitutes A Reasonable Search?

In R. v. J.M.G. [1986] the court used a two-pronged test [based on a similar case, N.J. v. T.L.O., in the U.S.S.C.] concerning the reasonableness of the search:

1. was the search justified at its inception?

2. was the search justified in its scope?

Charter §8 - everyone has the right to be free from unreasonable search and seizure.

§8 was found to apply in the J. M. G. case. The court assumed that the Principal was acting as an agent of the state, and not only in loco parentis

How Do We Know What Constitutes A Reasonable Search?

In R. v. J.M.G. [1986] the court used a two-pronged test [based on a similar case, N.J. v. T.L.O., in the U.S.S.C.] concerning the reasonableness of the search:

1. was the search justified at its inception?

2. was the search justified in its scope?

EADM© 2007

W. R. Dolmage

R. v. J.M.G.Ratio Decidendi

R. v. J.M.G.Ratio Decidendi

The court found that:“the search of the accused at the bar was not only justified at its inception but indeed was dictated by the circumstances. The principal had received information that this particular student harboured illegal drugs on a particular part of his person.”

and that the student was,

“subject to the discipline of the school and required by the nature of his attendance to undergo any reasonable disciplinary or investigative procedure.”

The court found that:“the search of the accused at the bar was not only justified at its inception but indeed was dictated by the circumstances. The principal had received information that this particular student harboured illegal drugs on a particular part of his person.”

and that the student was,

“subject to the discipline of the school and required by the nature of his attendance to undergo any reasonable disciplinary or investigative procedure.”

EADM© 2007

W. R. Dolmage

R. v. M.(R.M.) [1998] 3 S.C.R. 393R. v. M.(R.M.) [1998] 3 S.C.R. 393

The approach to be taken in considering searches by teachers may be summarized in this manner:

(1) A warrant is not essential in order to conduct a search of a student by a school authority.

(2) The school authority must have reasonable grounds to believe that there has been a breach of school regulations or discipline and that a search of a student would reveal evidence of that breach.

(3) School authorities will be in the best position to assess information given to them and relate it to the situation existing in their school. Courts should recognize the preferred position of school authorities to determine if reasonable grounds existed for the search.

(4) The following may constitute reasonable grounds in this context: information received from one student considered to be credible, information received from more than one student, a teacher's or principal's own observations, or any combination of these pieces of information which the relevant authority considers to be credible. The compelling nature of the information and the credibility of these or other sources must be assessed by the school authority in the context of the circumstances existing at the particular school.

The approach to be taken in considering searches by teachers may be summarized in this manner:

(1) A warrant is not essential in order to conduct a search of a student by a school authority.

(2) The school authority must have reasonable grounds to believe that there has been a breach of school regulations or discipline and that a search of a student would reveal evidence of that breach.

(3) School authorities will be in the best position to assess information given to them and relate it to the situation existing in their school. Courts should recognize the preferred position of school authorities to determine if reasonable grounds existed for the search.

(4) The following may constitute reasonable grounds in this context: information received from one student considered to be credible, information received from more than one student, a teacher's or principal's own observations, or any combination of these pieces of information which the relevant authority considers to be credible. The compelling nature of the information and the credibility of these or other sources must be assessed by the school authority in the context of the circumstances existing at the particular school.

EADM© 2007

W. R. Dolmage

R. v. M.(R.M.) [1998] 3 S.C.R. 393R. v. M.(R.M.) [1998] 3 S.C.R. 393

The factors to be considered in determining whether a search conducted by a teacher or principal in the school environment was reasonable can be summarized in this manner:

1. The first step is to determine whether it can be inferred from the provisions of the relevant Education Act that teachers and principals are authorized to conduct searches of their students in appropriate circumstances. In the school environment such a statutory authorization would be reasonable.

2. The search itself must be carried out in a reasonable manner. It should be conducted in a sensitive manner and be minimally intrusive.

3. In order to determine whether a search was reasonable, all the surrounding circumstances will have to be considered.

The factors to be considered in determining whether a search conducted by a teacher or principal in the school environment was reasonable can be summarized in this manner:

1. The first step is to determine whether it can be inferred from the provisions of the relevant Education Act that teachers and principals are authorized to conduct searches of their students in appropriate circumstances. In the school environment such a statutory authorization would be reasonable.

2. The search itself must be carried out in a reasonable manner. It should be conducted in a sensitive manner and be minimally intrusive.

3. In order to determine whether a search was reasonable, all the surrounding circumstances will have to be considered.

EADM© 2007

W. R. Dolmage

Student Rights Under the Charter and the Youth Criminal Justice Act

Student Rights Under the Charter and the Youth Criminal Justice Act

Right to be Read RightsAre school authorities obligated to “read students their rights” when investigating circumstances which may involve criminal activity?

ConfidentialityHow do the guarantees of confidentiality in the Youth Criminal Justice Act affect the operation of schools?

Right to be Read RightsAre school authorities obligated to “read students their rights” when investigating circumstances which may involve criminal activity?

ConfidentialityHow do the guarantees of confidentiality in the Youth Criminal Justice Act affect the operation of schools?

EADM© 2007

W. R. Dolmage

Do Educators Have An Obligation to"Read A Student His/Her Rights"?

Do Educators Have An Obligation to"Read A Student His/Her Rights"?

Charter § 9 - everyone has the right not to be arbitrarily detained or imprisoned

Charter §10 - everyone has the right on arrest or detention(a) to be informed promptly of the reasons therefor;(b) to retain and instruct counsel without delay and to be informed of

that right;Are students “detained,” and therefore entitled to counsel etc., within the meaning of §§ 9 & 10?Courts have held that pupils being “detained” by Principals to investigate breaches of discipline are not being “detained” within meaning of §§ 9 & 10 of the Charter. Detentions are a normal type of activity in a school.In R. v. J.M.G. [1986] the court found that:“this is not a ‘detention’ within the meaning of §10(b). The accused was already under detention of a kind throughout his school attendance. He was subject to the discipline of the school and required by the nature of his attendance to undergo any reasonable disciplinary or investigative procedure.

Charter § 9 - everyone has the right not to be arbitrarily detained or imprisoned

Charter §10 - everyone has the right on arrest or detention(a) to be informed promptly of the reasons therefor;(b) to retain and instruct counsel without delay and to be informed of

that right;Are students “detained,” and therefore entitled to counsel etc., within the meaning of §§ 9 & 10?Courts have held that pupils being “detained” by Principals to investigate breaches of discipline are not being “detained” within meaning of §§ 9 & 10 of the Charter. Detentions are a normal type of activity in a school.In R. v. J.M.G. [1986] the court found that:“this is not a ‘detention’ within the meaning of §10(b). The accused was already under detention of a kind throughout his school attendance. He was subject to the discipline of the school and required by the nature of his attendance to undergo any reasonable disciplinary or investigative procedure.

EADM© 2007

W. R. Dolmage

Is This Education or Police Work?Is This Education or Police Work?

There may well be some instances where a court might find that a student was being detained within the meaning of the Charter, such as:

Where the detention is in relation to a suspected crime and criminal proceedings seem inevitable—because of:

the strength of the evidence; and/or

the seriousness of the crime.

In such circumstances, the court might find that the Principal or Teacher was holding the student in order to turn him/her over to the police (i.e., acting as an agent of the police rather than an educational agent). If this is the case, provisions of the Youth Criminal Justice Act would probably apply.

There may well be some instances where a court might find that a student was being detained within the meaning of the Charter, such as:

Where the detention is in relation to a suspected crime and criminal proceedings seem inevitable—because of:

the strength of the evidence; and/or

the seriousness of the crime.

In such circumstances, the court might find that the Principal or Teacher was holding the student in order to turn him/her over to the police (i.e., acting as an agent of the police rather than an educational agent). If this is the case, provisions of the Youth Criminal Justice Act would probably apply.

EADM© 2007

W. R. Dolmage

Students’ Rights Under theYouth Criminal Justice Act,

§146

Students’ Rights Under theYouth Criminal Justice Act,

§146(2) No oral or written statement given by a young person to a peace

officer or other person who is, in law, a person in authority . . . is admissible against the young person unless(a) the statement was voluntary;(b) the person to whom the statement was given has, before the

statement was made, clearly explained to the young person, in language appropriate to his age and understanding, that

i. the young person is under no obligation to give a statement,ii. any statement given by him may be used as evidence in

proceedings against him,iii. the young person has the right to consult counsel and a

parent or other person in accordance with paragraph (c), and

iv. any statement made by the young person is required to be made in the presence of counsel and any other person (except a co-accused, or person under investigation) consulted in accordance with paragraph (c), unless the young person has declared otherwise;

(2) No oral or written statement given by a young person to a peace officer or other person who is, in law, a person in authority . . . is admissible against the young person unless(a) the statement was voluntary;(b) the person to whom the statement was given has, before the

statement was made, clearly explained to the young person, in language appropriate to his age and understanding, that

i. the young person is under no obligation to give a statement,ii. any statement given by him may be used as evidence in

proceedings against him,iii. the young person has the right to consult counsel and a

parent or other person in accordance with paragraph (c), and

iv. any statement made by the young person is required to be made in the presence of counsel and any other person (except a co-accused, or person under investigation) consulted in accordance with paragraph (c), unless the young person has declared otherwise;

EADM© 2007

W. R. Dolmage

Students’ Rights Under theYouth Criminal Justice Act, §146

Students’ Rights Under theYouth Criminal Justice Act, §146

(2) (c) the young person has, before the statement was made, been given a reasonable opportunity to consult

i. with counsel andii. a parent, or in the absence of a parent, an adult

relative, or in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, and

(d) where the young person consults any person pursuant to paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.

(3) The requirements set out in paragraphs (2)(b), (c) and (d) do not apply in respect to oral statements where they are made spontaneously by the young person to a peace officer or other person in authority before that person has had a reasonable opportunity to comply with those requirements.

(2) (c) the young person has, before the statement was made, been given a reasonable opportunity to consult

i. with counsel andii. a parent, or in the absence of a parent, an adult

relative, or in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, and

(d) where the young person consults any person pursuant to paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.

(3) The requirements set out in paragraphs (2)(b), (c) and (d) do not apply in respect to oral statements where they are made spontaneously by the young person to a peace officer or other person in authority before that person has had a reasonable opportunity to comply with those requirements.

EADM© 2007

W. R. Dolmage

Students’ Rights Under theYouth Criminal Justice Act, §146

Students’ Rights Under theYouth Criminal Justice Act, §146

(4) A young person may waive the rights under paragraph (2)(c) or (d) but any such waiver shall be audio or videotaped or be in writing and where in writing it shall contain a statement signed by the young person that the young person has been apprised of the right being waived.

(5.1) A youth court judge may in any proceedings under this Act rule admissible any statement or waiver by a young person where, at the time of making the statement or waiver,

(a) the young person held himself or herself to be eighteen years of age or older;

(b) the person to whom the statement or waiver was made conducted reasonable inquiries as to the age of the young person and had reasonable grounds for believing that the young person was eighteen years of age or older; and

(c) in all other circumstances the statement or waiver would otherwise be admissible

(4) A young person may waive the rights under paragraph (2)(c) or (d) but any such waiver shall be audio or videotaped or be in writing and where in writing it shall contain a statement signed by the young person that the young person has been apprised of the right being waived.

(5.1) A youth court judge may in any proceedings under this Act rule admissible any statement or waiver by a young person where, at the time of making the statement or waiver,

(a) the young person held himself or herself to be eighteen years of age or older;

(b) the person to whom the statement or waiver was made conducted reasonable inquiries as to the age of the young person and had reasonable grounds for believing that the young person was eighteen years of age or older; and

(c) in all other circumstances the statement or waiver would otherwise be admissible

EADM© 2007

W. R. Dolmage

R. v. M. H.R. v. M. H.

This Edmonton Case clearly illustrates the fact that evidence, gathered without regard for the student’s rights may be ruled inadmissable.

This Edmonton Case clearly illustrates the fact that evidence, gathered without regard for the student’s rights may be ruled inadmissable.

EADM© 2007

W. R. Dolmage

The Young Offender’s Right To “Privacy” v.The Educators’ Need To Know:

Under the Young Offenders Act, §38(1)

The Young Offender’s Right To “Privacy” v.The Educators’ Need To Know:

Under the Young Offenders Act, §38(1)

§38(1) No person shall publish or . . . report of an offence committed or alleged to have been committed by a young person . . . . in which the name . . . or . . . any information serving to identify such young person or child is disclosed.

This posed obvious difficulties for school administrators who bear responsibility for barring potentially dangerous students

In Peel v. W.B. et al., [1987] the Peel Board could not proceed with an expulsion hearing because expulsion would almost inevitably lead to the identification of the accused young offenders.

On Feb. 7, 1994, The Ontario Divisional Court held, in Scarborough v. Faye G. et al, that the Peel decision was incorrect and that,

In our view, it was never intended by parliament that the Young Offenders Act would be used as a shield against the enforcement of school discipline.

It was, therefore, once again possible to hold an expulsion hearing with some assurance that one would not be violating §38 of the Young Offenders Act.

§38(1) No person shall publish or . . . report of an offence committed or alleged to have been committed by a young person . . . . in which the name . . . or . . . any information serving to identify such young person or child is disclosed.

This posed obvious difficulties for school administrators who bear responsibility for barring potentially dangerous students

In Peel v. W.B. et al., [1987] the Peel Board could not proceed with an expulsion hearing because expulsion would almost inevitably lead to the identification of the accused young offenders.

On Feb. 7, 1994, The Ontario Divisional Court held, in Scarborough v. Faye G. et al, that the Peel decision was incorrect and that,

In our view, it was never intended by parliament that the Young Offenders Act would be used as a shield against the enforcement of school discipline.

It was, therefore, once again possible to hold an expulsion hearing with some assurance that one would not be violating §38 of the Young Offenders Act.

EADM© 2007

W. R. Dolmage

The Young Offender’s Right To “Privacy” v.The Educators’ Need To Know:

Youth Criminal Justice Act, §§114-129

The Young Offender’s Right To “Privacy” v.The Educators’ Need To Know:

Youth Criminal Justice Act, §§114-129

NOW, various justice professionals are given the discretion to disclose information for specific purposes, such as:

To ensure compliance with a court order

To ensure the safety of staff, students or other persons,

To facilitate rehabilitation of the Young Person

NOW, various justice professionals are given the discretion to disclose information for specific purposes, such as:

To ensure compliance with a court order

To ensure the safety of staff, students or other persons,

To facilitate rehabilitation of the Young Person

EADM© 2007

W. R. Dolmage

What Are The ImplicationsOf Ignorance Of These

Rights?

What Are The ImplicationsOf Ignorance Of These

Rights? If a search is unlawful, the subject of the search could bring an action

for damages (assuming damage could be established). An "unreasonable" search would not provide justification for a

"forceful" search of a person which could, therefore, result in assault charges.

There are serious penalties for breaches of the privacy provisions of the Youth Criminal Justice Act.

Any evidence acquired in an unlawful search may be considered inadmissible in proceedings taken against the student under the Criminal Code or the Youth Criminal Justice Act.

The courts may overturn any disciplinary proceeding by the school or the school district against the student (for suspension or expulsion, for example), if the basis for the proceedings was evidence obtained by means of an unreasonable search.

A confession obtained from a young offender, before that person has been informed of his/her rights, may not be admissible in court.

If a search is unlawful, the subject of the search could bring an action for damages (assuming damage could be established).

An "unreasonable" search would not provide justification for a "forceful" search of a person which could, therefore, result in assault charges.

There are serious penalties for breaches of the privacy provisions of the Youth Criminal Justice Act.

Any evidence acquired in an unlawful search may be considered inadmissible in proceedings taken against the student under the Criminal Code or the Youth Criminal Justice Act.

The courts may overturn any disciplinary proceeding by the school or the school district against the student (for suspension or expulsion, for example), if the basis for the proceedings was evidence obtained by means of an unreasonable search.

A confession obtained from a young offender, before that person has been informed of his/her rights, may not be admissible in court.

EADM© 2007

W. R. Dolmage

Students’ Substantive

Charter Rights

Students’ Substantive

Charter Rights§1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

§2 Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion:

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association

§7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

§12 Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

§15 Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, and in particular without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

§1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

§2 Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion:

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association

§7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

§12 Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

§15 Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, and in particular without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

EADM© 2007

W. R. Dolmage

The Policy Crucible:The Oakes Test

The Policy Crucible:The Oakes Test

1. Is the objective sufficiently important to justify overriding the Charter?

1. Is the objective sufficiently important to justify overriding the Charter?

YesYes

YesYes

YesYes

The Law Fails the Oakes Test

The Law Fails the Oakes Test

The Law Passes the Oakes Test

The Law Passes the Oakes Test

NoNo

NoNo

NoNo

YesYes

2a. Is the discriminatory law rationally related to achieving this objective?

2a. Is the discriminatory law rationally related to achieving this objective?

2b. Are the means chosen to achieve the objective proportional to the importance of the objective?

2b. Are the means chosen to achieve the objective proportional to the importance of the objective?

2c. Is there some other, less intrusive, way in which the same objective could be achieved?

2c. Is there some other, less intrusive, way in which the same objective could be achieved?

NoNo

EADM© 2007

W. R. Dolmage

The Charter AndStudents' Substantive Rights:

Kirpin

The Charter AndStudents' Substantive Rights:

KirpinIs it a violation of religious freedom under §2 to bar a Sikh student from wearing his Kirpan (ceremonial dagger)?

Would differential treatment be justified under a §1 Charter analysis?

Is it a violation of religious freedom under §2 to bar a Sikh student from wearing his Kirpan (ceremonial dagger)?

Would differential treatment be justified under a §1 Charter analysis?

1. objective sufficiently important?1. objective sufficiently important?

YesYes

YesYes

YesYes

The Law FailsThe Law Fails

The Law PassesThe Law Passes

NoNo

NoNo

NoNo

YesYes

2a. law rationally related to objective?2a. law rationally related to objective?

2b. Are the means chosen proportional? 2b. Are the means chosen proportional?

2c. Is there a less intrusive, way?2c. Is there a less intrusive, way?

NoNo

EADM© 2007

W. R. Dolmage

The Charter AndStudents' Substantive Rights: Censorship

The Charter AndStudents' Substantive Rights: Censorship

Is it a violation of students’ §2 freedom of expression when a Board or Principal censors speeches, posters, papers or protests?

Would differential treatment be justified under a §1 Charter analysis?

Is it a violation of students’ §2 freedom of expression when a Board or Principal censors speeches, posters, papers or protests?

Would differential treatment be justified under a §1 Charter analysis?

1. objective sufficiently important?1. objective sufficiently important?

YesYes

YesYes

YesYes

The Law FailsThe Law Fails

The Law PassesThe Law Passes

NoNo

NoNo

NoNo

YesYes

2a. law rationally related to objective?2a. law rationally related to objective?

2b. Are the means chosen proportional? 2b. Are the means chosen proportional?

2c. Is there a less intrusive, way?2c. Is there a less intrusive, way?

NoNo

EADM© 2007

W. R. Dolmage

The Charter AndStudents' Substantive Rights: Expulsion

The Charter AndStudents' Substantive Rights: Expulsion

Is expulsion from school a violation of the §7 right to liberty?

Would differential treatment be justified under a §1 Charter analysis?

Is expulsion from school a violation of the §7 right to liberty?

Would differential treatment be justified under a §1 Charter analysis?

1. objective sufficiently important?1. objective sufficiently important?

YesYes

YesYes

YesYes

The Law FailsThe Law Fails

The Law PassesThe Law Passes

NoNo

NoNo

NoNo

YesYes

2a. law rationally related to objective?2a. law rationally related to objective?

2b. Are the means chosen proportional? 2b. Are the means chosen proportional?

2c. Is there a less intrusive, way?2c. Is there a less intrusive, way?

NoNo