CHARTER CASE POSSIBLE, EXPERT SAYS

Reading Texts May Go Too Far: Dean

The student whose text messages were read by a viceprincipal in Prince
Albert could potentially have an argument that his right to privacy
under the Charter of Rights and Freedoms was violated, says the head
of the University of Saskatchewan's college of law.

The student's grandparents are suing the Saskatchewan Rivers school
division for negligence and breach of privacy after the vice-principal
at Riverside Community School read a message on the student's
confiscated cellphone that referred to a stolen vehicle.

Police were called in and used the student as an informant in their
investigation and the family fears violent retaliation.

Since the incident in March 2010, the student has moved away from
Prince Albert because of those fears, they say.

Law school dean Sanjeev Anand said Thursday he is only familiar with
the case through media reports and he would need more facts to say
whether the lawsuit has merit, but he pointed to a Supreme Court of
Canada case that addressed privacy in the school setting.

In a case referred to as "M.R.M.," a vice-principal at a Nova Scotia
school called two students to his office after receiving a tip one of
them was in possession of drugs and then searched the students,
finding marijuana in a bag in the student's sock. The student
challenged the admissibility of the evidence on the grounds of an
unreasonable search, but the Supreme Court ruled in 1998 that the
search was legal.

"First and foremost, can school authorities search students in the
school setting?

"The answer the Supreme Court has given is yes," said Anand,
especially when the safety of other students is in question.

However, whether it was acceptable in the Prince Albert incident for
the viceprincipal to read the texts on the cellphone isn't clear.

"Then the question becomes the extent of the search .... Here enough of
a search to find the phone and seize the phone, I think, would clearly
be countenanced. "What is less clear is whether the vice-principal
could engage in a more extensive search of the actual texts on the
phone. It may be that this search by the school official may be found
to be unconstitutional."

If that's the case, said Anand, the student could potentially make a
claim against the school division for a "charter remedy" -- meaning
monetary damages.

There is also potential liability on the part of the police and
whether they did enough to safeguard the student's identity when they
enlisted his help in locating the stolen vehicle, said Anand.

According to the grandparent's statement of claim filed with Queen's
Bench court in Prince Albert, police asked the student to text back to
the person about the stolen vehicle, inquiring about its location, and
then took the student with them in the police car to locate the
vehicle. Allegations in the statement of claim have not been proven in
court.

"The other aspect of this has to do with the relationship of school
authorities to students and their duty to safeguard students," said
Anand. "I think there's the potential here to say, listen, they simply
failed in their duty to safeguard the wellbeing of this individual by
not ensuring that police took all reasonable steps to protect the
identity of the student.

"And likewise the police have legal duties to protect their informants
and take reasonable steps to protect witnesses and a claim could be
made that they didn't take those reasonable steps."

Anand emphasized he was only speculating on possibilities, as he
didn't know the details of what had actually happened.

Prince Albert police declined to comment on the case because it is
before the courts.