…Six Points to Ponder Before You Exercise Yours
Acting on tips from other
students, a Nova Scotia junior high school vice-principal who was supervising a school
dance requested that a police officer come to the school. He then approached a 13-year-old
student and asked that he accompany him to his office. The police officer spoke briefly
with the vice-principal outside the room, then entered, identified himself to the student
and sat down. The officer spoke no further with the student and did not participate in the
search. The vice-principal searched the pant legs and socks of the student and found a
cellophane bag containing marijuana stuffed into his sock, which was handed over to the
officer. The student was then arrested.
By Kelly Smith
The Supreme Court has recognized that our schools are vastly
different places from a generation ago. And because of this, the court has granted school
authorities considerable flexibility and latitude when judging the practicalities of their
actions when it comes to the issue of search and seizure of students and their property by
school officials.
When the court rendered its decision on November 26, 1998 in M.R.M. v. The Queen –
which arose out of that search of a 13-year-old junior high school student in Nova Scotia
– the justices signalled that a high degree of deference will be paid to the unique
knowledge and experience of our educators when they are forced to take action to protect
our children and preserve the integrity of our schools.
Ironically, only eight days after this decision, public attention was focussed on the
issue once again after young male students were searched at a high school in southwestern
Ontario.
To avoid any future misunderstandings of what the court decision meant, here’s a
reiteration of the six main points delivered by the Supreme Court that teachers and
principals ought to keep in mind.
1 Elementary and secondary schools are part of the apparatus
of government. As such, the Charter of Rights and Freedoms will apply to the actions of
teachers and principals. What this means is that certain legal standards must be met when
judging their actions and the basis for their actions.
2 When a search does occur, the courts will need to decide
whether the person who conducted the search was acting as an agent of the police. Why? The
legality of the search in a courtroom can often stand or fall on this point alone. Acting
as a police agent is a very serious matter. It requires that the school official comply
strictly with specific police practices, and with stringent criteria under the Charter of
Rights and Freedoms.
In the case of M. R. M., the vice-principal clearly co-operated with the police. He
knew ahead of time that if drugs were found, it would be a matter not only for school
authorities, but also for the police. He called the police before beginning the search of
the student and requested that they attend the school. He permitted the officer to watch
as he conducted the search. When drugs were found, he handed them over immediately to the
officer for further criminal investigation.
Sounds like a pretty cosy relationship between the school and the police, doesn’t
it? Yet, the Supreme Court said that co-operation and police presence are not enough to
establish that the vice-principal was an agent of the police. There was no prior agreement
or strategy between the police and the school official before the search was conducted.
The vice-principal was not acting under police instructions when carrying out the search.
Most telling of all, the search of the student would have been initiated and carried
out in the same fashion if there had been no police involvement at all. There was
therefore no agency relationship between the vice-principal and the police.
Why does this matter? Very simply, if the vice-principal had been acting as a police
agent, the very same search could easily be judged unreasonable, and therefore in
violation of the Charter of Rights and Freedoms. When a school official acts as a police
agent, a huge array of onerous and technical considerations apply.
3 Although students attending school have a reasonable
expectation of privacy both with respect to their person and the items they carry on their
person, this expectation is greatly lessened in the school environment. Students should
know that their teachers and other school officials have a duty to provide a safe
environment and maintain order and discipline in their schools.
This may require searches of students and their personal property, and the seizure of
any prohibited items, such as weapons or drugs. Students cannot expect to be free from
such searches.
4 Search warrants, and the exacting standards necessary to
obtain them, are not required prior to conducting a search in a school. To do so would be
impracticable
and unworkable.
In fact, a much more lenient attitude will be accorded school officials so that they
can maintain safety, discipline and decorum in our schools: "It is essential that our
children be taught and that they learn. Yet, without an orderly environment, learning will
be difficult if not impossible. In recent years, problems which threaten the safety of
students and the fundamentally important task of teaching have increased in their numbers
and gravity. The possession of illicit drugs and dangerous weapons in the schools has
increased to the extent that they challenge the ability of school officials to fulfil
their responsibility to maintain a safe and orderly environment. Current conditions make
it necessary to provide teachers and school administrators with the flexibility required
to deal with discipline problems in schools. They must be able to act quickly and
effectively to ensure the safety of students and to prevent serious violations of school
rules." M.R.M. v. The Queen (1998), 129 C.C.C. (3d) 361, at p.379.
5 A search by school officials can occur if there are
reasonable grounds to believe that a school rule has been or is being violated, and that
evidence of the violation will be found in the location or on the person of the student
searched.
What are "reasonable grounds"? There’s no magic to this, really. They
may include tips from one or more students, observations of teachers or principals, or a
combination of any of these.
In any case, significant latitude will be accorded to the discretion and unique
knowledge of school officials, since they are in the best position to evaluate the quality
and credibility of the information they obtain.
6 The manner in which the search is conducted must be
reasonable. All searches conducted in a school must be minimally intrusive, and conducted
in a sensitive manner. This means that due consideration should be given to the age and
gender of the student, and the actual nature of the violation.
"The permissible extent of the search will vary with the gravity of the infraction
that is suspected. For example, it may be reasonable for a teacher to take immediate
action and undertake whatever search is required where there are reasonable grounds to
believe that a student is carrying a gun or some other dangerous weapon. The existence of
an immediate threat to the students’ safety will justify swift, thorough and
extensive searches. That same type of search might not be justified where, for example, a
student is reasonably believed to have gum which is prohibited by school regulations in
his or her pocket." M.R.M., supra, at 385-86.
Strip-searching, which is one of the most intrusive, oppressive forms of searching an
individual, is an extreme exercise of state control. It is a police power that is closely
scrutinized, and often times highly criticized by the courts and the public. It is
countenanced in only very limited, exceptional circumstances. It is hard to imagine a
situation involving anything less than immediate danger to life from a weapon or other
deadly substance capable of justifying such a search in a school environment.
Without a doubt, the vast majority of our educators employ vigilance and common sense
when they exercise their powers to search students and their property. They do not stalk
their hallways undertaking arbitrary and Draconian searches. They are sensible, reasonable
and responsible.
The Supreme Court certainly agrees with this. In fact, this decision clearly pays
tribute to the extraordinary efforts of our teachers and principals in shaping the very
future of our country.
Kelly Smith, who works as a prosecutor in east-end Toronto, has been an Assistant
Crown Attorney with the Ministry of the Attorney General for the past decade.
