RIGHT TO PRIVACY DIMINISHED AT SCHOOL

Young people are in no different position than adults when it comes to
police searches. In fact, in some circumstances, such as searches in
schools, youths may have fewer rights than adults.

The school year has just started, so let's take a look at this. The Supreme
Court of Canada considered the issue in a case from Nova Scotia where a
vice-principal had heard from students that a 13-year-old was selling drugs
in the school and would be carrying drugs at a school dance. The V-P called
the RCMP to attend and then asked the accused to accompany him to his
office. He then questioned the boy until a police officer arrived. The
officer advised the boy the V-P was going to search him. A plastic bag
containing a small amount of marijuana was found and the boy was charged
with possession.

The Supreme Court assumed for purposes of the case that schools constitute
part of government and that the vice-principal was acting as an agent of
the police. Accordingly, the Charter of Rights applied to his actions. They
found however, the search was not unreasonable and the marijuana was not
excluded from evidence during the trial. The Charter of Rights provides
that "everyone has the right to be secure against unreasonable search and
seizure." What is considered to be unreasonable in a particular case will
be determined largely by the degree of privacy that any individual might
reasonably expect to have in those circumstances. While a student does have
a reasonable expectation of privacy, it is significantly diminished in a
school setting.

While warrantless searches are normally considered to be unreasonable, a
more flexible and lenient approach is required in schools. A school
authority must have reasonable grounds to believe there has been a breach
of school regulations or discipline, and that a search of a student will
uncover evidence of that infraction. The reasonable grounds may include
information received from one or more credible students or from a teacher's
or principal's own observations. Such searches are not limited to drug
cases and may be permitted in cases where the school officials have
reasonable grounds to believe that weapons, alcohol or any other contraband
will be found.

As a result of this decision, students in school have lost a number of
rights that they enjoy when not in school and a student's expectation of
privacy is greatly reduced.

At the same time, teachers and principals have been given a great deal of
deference regarding the information they act on, its reasonableness and the
credibility of any source. They now have broad powers to search students
and their lockers.

This decision should not, however, be taken as authority to strip-search
students. As a teacher and vice-principal at a high school in southwestern
Ontario learned a few years ago, students still have some expectation of
privacy, even in a school setting and such invasive proceedings as these
will be seen to be an unreasonable invasion of the student's rights.

The Supreme Court noted that schools have a duty to foster the respect of
their students for the constitutional rights of all members of society and
that learning respect for rights should be part of the education of
students. Further, values are best taught by example and those values may
be undermined if students' rights are ignored by those in authority.

David Harris is a Burlington resident with a criminal law practice in
Oakville. He is writing a series of columns on criminal law. To find his
past columns, visit the Web site www.lawyers.ca/dharris.