GIVE TEACHERS RIGHT TO SEARCH AND SEIZE, TOP COURT URGED

Educators' responsibility to all students means lower standards for
privacy, government lawyers will argue

The country's top court is being urged to give principals and teachers the
legal right to take "quick" action in the fight against drugs and weapons
in their schools.

The Supreme Court of Canada will hear an appeal today that will set out
rules for when students can be searched on school premises and how much
privacy they are entitled to.

The federal government is urging a low standard, saying students can be
searched even if administrators only have a "reasonable suspicion" it will
turn up evidence of a violation of the law or school rules.

This is the test adopted in 1985 by the United States Supreme Court, but is
much less stringent than the standard police officers must meet to legally
search someone without a warrant.

"Teachers have a heavy responsibility for the welfare of the children
committed to their charge," federal lawyer Ivan Whitehall says in his
written submissions to the Supreme Court.

"A necessarily incidental aspect of this responsibility is an ability to
keep drugs and other harmful substances out of the school environment.
Society expect no less.

"It is the responsibility of school officials to ensure that the volatile
or immature plain criminal element in our schools does not destroy the
educational setting necessary for the benefit of all."

Crucial to these goals, the federal government says, is the ability to make
a "quick response."

The appeal before the Supreme Court revolves around a then 13-year-old Nova
Scotia student who was caught with marijuana hidden in his sock at a junior
high school dance in October 1995.

Twice in the weeks before the dance, Michael Cadue, the vice-principal at
George P. Vanier Junior High in Halifax, had been told by three or four
other students that the teen, who can't be identified, was selling drugs on
school property. The day of the party, he was warned that the student "will
be carrying tonight."

When the student arrived at the monthly dance, Mr. Cadue called the RCMP
and summoned the alleged dealer and his friend to his office. In the
presence of the plainclothed Mountie, the student was asked to empty his
pockets and pull up his pants. A cellophane bag of marijuana was found in
his sock.

The student was turned over to the RCMP officer and charged with possession
of marijuana. A search of his locker turned up nothing.

At his youth court trial, a judge ruled the student was illegally detained
and not informed of his legal rights so the marijuana evidence was
inadmissible. As a result, he was acquitted.

But last year, the Nova Scotia Court of Appeal ruled the principal's
actions and search were "eminently reasonable" and ordered a new trial.

"A safe educational environment could only be maintained if authority was
granted to principals and staff to ensure proper order and discipline.
Unfortunately, the times dictated that young people attending school
required, and continue to require, protection from those who wish to
traffic in drugs," the appeal court ruled.

But the youth's lawyer, in her appeal to the Supreme Court, argues school
officials should have to meet the same standards as police to conduct a
search in a criminal case -- "reasonable and probable grounds."

Students should not become "second-class citizens" simply because they go
to school, lawyer Mona Lynch argues.

"Schools are not analogous to either prisons or border crossings ... (the
student) did not give up all his rights to privacy and other legal rights
by virtue of his enrollment at school.

"In the present case, the state's interest in detecting and preventing
crime or in keeping order and discipline in schools should not prevail over
(his) interest in being left alone and having his bodily integrity
respected."

Even if there is a lower expectation of privacy in schools, that doesn't
extend to searches of individual students or to criminal investigations,
she argues.

But the federal government, which is involved because it prosecutes drug
charges, says school vice-principals can't be expected to "display the same
degree of forensic knowledge" as police and school settings, by their very
nature, result in a lower expectation of privacy.

"Implicit in the duty to maintain order and discipline is the power for
school officials to remove contraband such as weapons and drugs from
students," writes Mr. Whitehall.

"That is necessary in order to create and maintain a safe, orderly,
positive and effective learning environment."

Mr. Whitehall suggests several hypothetical scenarios where quick action by
school officials could be essential:

- - a student is found bleeding and says he was cut with a knife wielded by
another student;

- - a female student shows a teacher a bullet, claiming another student has
threatened that the next one will be in her head;

- - a vial of acid is missing from the chemistry lab and several students say
they know who took it and put in a locker;

- - a student has brought a Swiss Army knife for "show and tell" but it
disappears over the recess break from his locker.

The trial judge's ruling, Mr. Whitehall argues, undermines attempts by
school boards to discourage drug use through zero-tolerance policies.

"The exclusion of the evidence is also pernicious because it gives a
message to a young person that he got away with it and the law assisted him
to do so."

The Nova Scotia case is complicated by the presence of the police officer
at the time of the vice-principal's search.

The trial judge concluded there was an "agreed strategy" between the
principal and the RCMP officer and he became an agent of the detective.

The appeal court, however, ruled the Mountie "played no part other than of
an observer."

In Ontario, a Conservative backbencher has introduced a private member's
bill that would give teachers the right to check a student's pockets or
open a book bag in search of tobacco, alcohol or drugs without being sued.

Copyright 1998 The Ottawa Citizen

Checked-by: (Joel W. Johnson)