This section of the chapter explores 6 aspects of search and seizure:
- General principles governing lawful searches of students by school authorities.
- When is a search of a student’s locker or desk lawful?
- The use of breathalyzers at school events.
- When is a canine search lawful?
- What needs to be considered before undertaking a search of a cellphone, laptop, tablet or backpack?
- What right to privacy do employees have when using board-owned equipment?
1. General principles governing lawful searches of students by school authorities.
A school authority (e.g. principal or vice-principal) may search a student without going through the police and/or obtaining a warrant, if the search is necessary in order to fulfill administrator’s statutory duty to maintain proper order and discipline in the school, and if there are reasonable grounds to believe that the search will produce evidence of a breach of a school rule.
A police search of any person or place/object in which there is a reasonable expectation of privacy will normally require a warrant in order to be lawful, except in exigent circumstances. In order to obtain a warrant, the police must demonstrate to a judge that they have reasonable grounds to suspect that a law has been broken.
A principal should not conduct a search at the request of or on behalf of the police. If the police do not have enough evidence for a warrant (or have simply not taken the time to obtain one), the search will not be rendered lawful because the principal is the one to conduct the search.
Advice:
A search of a student (or, by extension, his/her backpack and/or personal electronic devices) should be done only when permitted by board policy and should be done in accordance with the policy. The board policy should state if and when the police ought to be contacted.
Any search of a student’s person should be minimally intrusive and proportional to the suspected offence. Intrusive searches for anything other than weapons are likely to be regarded as unreasonable by a court. Students also have a reasonable expectation of privacy in their backpacks and personal electronic devices; therefore, the search of such items must be proportional to the suspected offence.
For your own safety: If an administrator feels there is a possibility of a weapon in a backpack, locker, etc., the search should immediately be suspended, the backpack or locker secured and the police contacted. Before conducting any search the student should be given the opportunity to produce the item he or she is suspected of possessing. When undertaking a search of a backpack or other similar item, administrators should first provide the student with the opportunity to empty the contents on a flat surface. If the student is unwilling to do so, administrators should slowly and carefully empty the contents with the understanding that the bag could include weapons or needles. Searches should always be conducted with another adult witness present.
The Supreme Court of Canada has ruled that a search warrant is not necessary for a search of a student by a school authority (principal or vice-principal); however, a principal or vice-principal must have reasonable grounds to believe there was a breach of school rules and that a search of the student would reveal evidence of that breach.
Reasonable grounds for a search may include
- information from one credible student
- information from more than one student
- a teacher or administrator’s own observations or
- any combination of these pieces of information which the principal or vice-principal considers to be credible.
The quality and specificity of the information will be relevant in assessing whether there are reasonable grounds for the search. Principals or vice-principals are regarded by the courts to be in the best position to assess the information given to them and to relate it to the situation existing in their schools.
The following would likely not provide “reasonable grounds” for a search
- rumours, innuendoes or hunches
- anonymous tips that are not corroborated
- information lacking in detail (who, what, where, when) or
- information that could not reasonably be considered to be credible.
Only principals or vice-principals should be permitted to conduct a search of a student, unless there is an immediate threat to someone’s safety or it would require the student to be searched by someone of the opposite sex.
A student should never be searched by someone of the opposite sex. To that end, a person other than the principal or vice-principal may be asked to perform the search subject to the principal or vice- principal’s specific instructions. If this is impracticable, the police may be contacted, ideally after consultation with the supervisory officer.
The person conducting the search should do so in a private location with one witness of the same sex as the student (a vice-principal, a teacher or other responsible adult). A student should never be searched in front of other students.
Whenever there is a need to search a student, the principal or vice- principal has the option of contacting the police (subject to board policy). If the police are contacted to perform the search, the student ought to be isolated and monitored until the police arrive. If a search is likely to be significantly intrusive or if there have been or may be threats of violence, the police ought to be involved. Except in exigent circumstances, the police will require a warrant in order to perform a lawful search, and this may take some time.
When a student has been searched, a record of all relevant information should be made, including
- the information constituting reasonable grounds for the search, including notes of interviews with witnesses and any other investigative action taken before the search
- the steps taken to perform the search, including the time and location of the search, the extent of the search, the witnesses to the search and the role of the police, if any
- what was found as a result of the search and
- if the student is under 18, steps taken to contact the parent or guardian of the student.
Any prohibited object or substance should be confiscated and kept in a secure location. In the case of illegal drugs, or where the matter is referred to police for investigation, physical evidence should be handed over to the po
2. When is a search of a student’s locker or desk lawful?
As in other searches, a school authority requires reasonable grounds to conduct any type of search, including a search of a student’s desk or locker. Random searches should not be undertaken.
Advice:
A search of a student locker or desk should be done only when permitted by board policy and should be carried out in accordance with the policy. The board policy should indicate if and when the police ought to be contacted.
Generally speaking, before a student’s locker or desk is searched, the student should be given the opportunity to produce the item he or she is suspected of possessing.
A court is unlikely to find that a student has a reasonable expectation of privacy in his or her desk or locker. This is particularly true if it has been made clear that the locker or desk is the property of the school and may be subject to a search at any time. This information should be included in the Student Handbook and on the school website. It would also be effective to reinforce the concept, in writing, when locker assignments are made and/or in the first school newsletter of the year. The school should keep a record of lock combinations or a master key and should warn students that locks may be destroyed if the student refuses to provide the combination/key when the school authority has determined that there are reasonable grounds to search the locker.
In the event of a search, detailed records should be kept to ensure that the court could admit the found object or substance as evidence. The search should be conducted in the presence of a witness and the student to avoid any allegations that the evidence was planted or tampered with.
3. The use of breathalyzers at school events:
In February 2015, the Ontario Supreme Court ruled on the constitutionality of administering breathalyzer tests to every student as a condition of entry to the prom. The Court concluded that this practice was a violation of the students' right to be free from unreasonable search and seizure contrary to s. 8 of the Charter of Rights and Freedoms, because the principal did not have "reasonable grounds" for conducting a "mass" search and seizure of a breath sample from every student attending the dance. The Court also concluded that the students had not consented to the search, even though attendance at the prom was deemed to be a privilege, not a right, and despite the Court holding that consent to the breathalyzer could be implied if the ticket was purchased with the knowledge that the school intended to administer the breathalyzer. Ultimately, the issue of consent turned on 3 concerns: 1) that the students purchasing tickets on this basis weren't aware of the nature of the conduct to which they were being asked to consent (when and how the breathalyzer would be administered); 2) that the students may have been unaware of their right to refuse to permit the school to administer the breathalyzer (and whether it was a "meaningful choice" to have to choose between a "rite of passage" and giving up a Charter right); and 3) that the students were unaware of the potential consequences of giving the consent – namely, that as a consequence of submitting to the breathalyzer, they would be waiving their Charter right to be free from unreasonable search and seizure.
The Court did reaffirm that, in individualized circumstances where the principal does have reasonable grounds to suspect that a particular student has breached school rules, a search and seizure may be permissible. However, the Court didn't explicitly authorize the use of a breathalyzer in a case where a principal has reasonable grounds to suspect that an individual student has been consuming alcohol before or during a school dance, contrary to school rules. Indeed, the Court stated that the use of a breathalyzer is not "minimally intrusive" and went on to state that with the classes of searches of the person, the degree of intrusiveness decreases from body cavity searches (most intrusive) to body samples and impressions (less intrusive), to body searches (least intrusive).
As of March 2015, the OPC does not know whether the TDSB will pursue an appeal of this decision.
Advice:
The OPC continues to urge principals to discuss with their Boards whether it's even necessary to use a breathalyzer if evidence of student alcohol consumption has been obtained through witness statements, a student's possession of alcoholic drinks or empty bottles, or observing signs of impairment, since this evidence alone will usually be sufficient to justify the imposition of school discipline and a call home to parents to retrieve the student from the event.
In Districts where it has been a practice to administer a breathalyzer to students as a condition of entry to a school dance, the OPC suggests suspending this practice until you receive explicit direction from your Board. Policies and procedures related to school dances should be reviewed locally with this decision in mind.
Under no circumstances should a student who is suspected of being impaired be released to anyone other than a parent or guardian or, if over 18, a responsible, sober adult.
A copy of the decision can be found here
4. When is a police canine search lawful?
Canine searches can be very effective in locating illegal drugs and are a search method that may be employed by the police at a school when they have received specific information constituting reasonable grounds to suspect that a search will produce evidence of illegal drugs. Except in exigent circumstances, police must obtain a warrant for any canine search they initiate.
The Supreme Court of Canada has decided that routine or pre-scheduled canine searches in schools, even at the request of a school principal, are unlawful and violate all students’ Charter rights. The Court indicated that a warrantless canine search could be conducted pursuant to a principal’s request, but that the request would need to be founded on specific information giving rise to reasonable grounds that a school rule had been broken. In other words, the general belief that drugs will be found at a school (even if drugs have been found before, or the school is known to have a “problem with drugs”) will not constitute reasonable grounds for a search. The information must contain some specifics as to date/ time when drugs will be in the school, and/or who has them and where they may be located.
While the Supreme Court did not rule out a principal’s ability to initiate a canine search, and unless time is of the essence, the most prudent course of action would be for principal to provide the information constituting reasonable grounds for the search to the police, who can use the information to obtain a warrant to conduct the search.
Advice: Do not attempt to initiate a canine search without the express direction of your supervisory officer.
5. What needs to be considered before undertaking a search of a cellphone, laptop, backpack or tablet?
A student with temporary or short-term possession of a school-issued electronic device will have a reduced expectation of privacy, especially where it has been communicated clearly to the student that the school may review the content at any time. A search of such a device can normally be treated in the same way as the search of a school locker or desk. However, the longer a student has the device in his/her exclusive possession without any monitoring or review of the contents, the greater the likelihood a court may conclude that he/she has developed a reasonable expectation of privacy in the device and its contents.
The Supreme Court of Canada has concluded that students do have a reasonable expectation of privacy in their personal devices (as well as their backpacks/school bags). Where special measures have been taken to increase privacy (passwords, locks), then the expectation of privacy will be heightened further. Where the expectation of privacy is high, the reasonableness of the search will be weighed against the objective of the search/severity of the suspected wrongdoing.
Advice:
If the matter relates to an immediate health and safety concern (e.g. a bomb threat, a death threat or a serious/pervasive bullying issue that is causing imminent harm), then the search is likely to be upheld. If dealing with an imminent risk to safety, police involvement should be seriously considered. If the matter relates to a less serious matter (e.g. pictures of alcohol or drug consumption at a dance), an intrusive search would not be reasonable.
The principal should always first attempt to obtain the device from the student voluntarily through a request and seek permission to view the relevant material. If this is unsuccessful, consider whether evidence of the breach could be obtained in other ways (from victims or other students).
Before undertaking a search of a student’s personal device, the principal must weigh carefully whether the breach of school rules is serious enough to proceed with a search, and whether the information, giving rise to the suspicion about the breach, is reliable. Are there reasonable grounds for suspecting that the search of such a device will produce evidence? Remember that whether “reasonable grounds” exists will be assessed on an objective basis, and that the principal cannot simply be acting as an agent of the police, who have much more stringent requirements to meet in order to obtain a warrant for a search.
The search must be limited to the subject of the concern, e.g., a specific email or image.
If a principal believes that a search is required, guidance by the appropriate supervisory officer is essential before embarking on the search of a student’s personal device.
6. What right to privacy do employees have when using board-owned equipment?
Although assigned devices are the property of the board, employees do still enjoy a reasonable expectation of privacy for personal information on those devices, such as banking and other personal records; in addition, the employer is expected to tolerate a reasonable amount of personal use of those assigned devices by their employees. However, most school boards in Ontario have robust policies on the acceptable use of technology, which diminish any reasonable expectation of privacy in the use of board-owned devices or personal information passing through board servers; as a result, school boards will usually have the right to search board-owned devices, so long as there are reasonable grounds to do so.
Advice:
As with other searches, because of the Charter right of each individual to be free from unreasonable search and seizure, we recommend principals seek advice and direction from their supervisory officer before undertaking any searches, unless of course the situation is an emergency, there is a concern about imminent harm to a person or loss of evidence resulting from delaying the search.
Remember: A search must be reasonable and proportionate to the suspected wrongdoing.