SCC releases school search decision

The Supreme Court has just dismissed the appeal in R. v. A.M., a significant decision on school searches.

The case is significant for school boards because it may involve a re-visitation of a 1997 Supreme Court of Canada case called “M.R.M.”, where a majority of the Supreme Court recognized that teachers and principals must be able to react quickly to problems that arise in schools and, hence, should have greater search powers than those enjoyed by the police.

The facts in the A.M. case are very different from those in M.R.M. The search in A.M. was a police search, not a school board search as in M.R.M., and the facts in A.M. are quite extreme because the a sniffer dog search is both random (as it pertains to individuals) and routine (i.e. there was no specific incident which gave rise to a justification for the search).

In A.M., a principal extended an open invitation to police to come onto school property and conduct sniffer dog searches. On the day in question, the police called the principal and received permission to enter the school. Students were told to remain in their classrooms while the police conducted the search. While searching a gymnasium, a sniffer dog identified “A’s” backpack. The police opened it and found narcotics and drug paraphernalia. A was arrested and charged with possession for the purpose of trafficking.

At trial, the principal admitted that he did not have any reason to believe that drugs would be found in the gymnasium. He could only testify to a general suspicion that drugs would likely be found somewhere in the school.

A Youth Justice Court judge held that A’s right to be secure from unreasonable search and seizure was violated, and this finding was unanimously upheld by the Ontario Court of Appeal. The Court of Appeal held that the search was unlawful because it was a warrantless and unreasonable police search – i.e. since the police initiated the search the lower standard established by the Supreme Court in M.R.M. did not apply. However, the Court of Appeal also stated that the search would have been unlawful if conducted by the principal himself because the Education Act does not give principals (or other school board officers) the power to conduct random searches:

As set out above, counsel for the Crown asserts that the Education Act, the provincial Code of Conduct, the St. Clair Catholic School Board Policy and the school’s zero-tolerance policy provide the authority for a warrantless search in this case. This submission is premised on the ground that the search was a search by school authorities conducted through the agency of the police. However, even if this was a search by school authorities through the agency of the police, there is nothing in the Education Act and the subsidiary policies articulated in the other documents that gives the required authority to conduct such a search.

Though the facts in A.M. are extreme and the statement above is technically obiter (meaning it was a passing comment), the Supreme Court may also choose to make a comment on a school board’s power of search and its student’s expectation of privacy.

The award is 97 pages. I’ll read it and provide a summary on the weekend.

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