COURT RULINGS ALLOW FOR PROTECTION OF STUDENTS AND THEIR CHARTER RIGHTS

A recent Supreme Court of Canada decision concerning police use of
trained dogs to ferret out drugs in schools has some school
administrators up in arms. But the decision is a reasonable one, as it
protects students' constitutional rights while still allowing police
searches in certain circumstances.

The case concerned a search conducted at a Sarnia, Ont., high school.
Having heard rumours of drugs in the school, the principal told police
in 2000 that they were welcome to bring their dogs into the school.
Two years later, the police decided to do so, and they found marijuana
and magic mushrooms in the backpack of a student who was then charged
with drug offences.

The youth court judge who presided over the student's trial found that
the search violated the student's Charter right to be free from
unreasonable search, a decision upheld by the Ontario Court of Appeal.
And while justices of the Supreme Court issued several separate
decisions, seven of the nine judges agreed that the student's Charter
right was infringed.

The position of the Crown -- and of more than a few school
administrators -- is that such searches shouldn't attract any Charter
protection at all, given that administrators need to protect students
and given a lowered expectation of privacy in schools.

This argument, which seems to suggest that students check their
constitutional rights at the school door, was soundly rejected by the
court.

Citing previous case law, the court noted that while some latitude is
necessary to allow school authorities to carry out their
responsibilities, there is no reason "why police should not be
required to comply with the usual standards, merely because the person
they wish to search is in attendance at an elementary or high school."

That said, the court was alive to the fact that students have
diminished expectations of privacy in school, particularly with regard
to the search of their backpacks (as opposed to a body search.)

For this reason, the court noted that police were not required to show
reasonable and probable grounds before conducting a search by
drug-sniffing dogs, and hence were not required to obtain a search
warrant.

But the court held that the lower standard of "reasonable suspicion"
- -- something more than mere speculation that a student might be in
possession of illegal drugs -- had to be fulfilled before police could
conduct a search. Both the courts and Parliament have adopted the
reasonable suspicion standard in situations involving a diminished
expectation of privacy, such as at border crossings.

In the present case, however, both the police and the school principal
admitted at trial that they had no specific information about the
existence of drugs or a threat to the safety of students. The
principal merely stated that "[I]t's pretty safe to assume that
[drugs] could be there."

Now this hardly sounds like reason enough to bring in the police to
conduct a search. Indeed, the court noted that the search therefore
violated the rights, not just of the student who was charged, but of
all students who had their belongings searched.

This doesn't, of course, mean that trained dog searches in schools
could never pass Charter scrutiny. If, for example, there is some
evidence concerning a specific student or students, then such a search
might be acceptable.

Consequently, the decision still allows school administrators
significant latitude in their responsibilities to protect their
students, while also ensuring that students' rights are protected.

And these two forms of protection should not be seen as in conflict.
As the court noted, schools also have a duty to foster respect for
constitutional rights, and these values "may be undermined if the
student's rights are ignored by those in authority."