This script is based on R. v. A.M. This video portrays a general focus of the case and is not intended as a full account. For an actual account of the decision, read the case R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19 found at the Resources tab.
Welcome back I'm Henderson O'Brien. If you're just joining us, we're here today talking about the issue of illegal drugs in today's public schools and student privacy rights.
Joining us is Meryl Taylor, a principal with many years of experience as an administrator in the public school system.
H: Meryl, thank you for being on the show today.
M: You're welcome Henderson, thank you for having me.
H: So Meryl, how serious is the drug problem in today's schools?
M: With regard to the province as a whole, the 2007 Ontario Student Drug Use and Health Survey results showed that 21% of the grade 7 - 12 students surveyed had been offered, sold or given drugs at school within the previous 12 months [camh, p. 18].
H: That's nearly a quarter of the entire grade 7 - 12 student population -that is certainly a problem!! What can you do as a principal to help curb this trend and rid our schools of drugs?
M: Well the Ontario Education Act allows principals to suspend a student if the principal believes the student is in possession of illegal drugs or alcohol on school property. In my own career I have, on occasion, had to suspend students involved in drug and alcohol related incidents at school. But suspension doesn't address the problem. Education of our students is needed.
H: Now as I understand it, the way you determine whether or not a student is in possession of an illegal substance must be handled very delicately.
M: Yes that's right. In our association with the police, a protocol has been developed between the police and the school board for investigating incidents. As a principal, I must balance my desire to keep the drugs out of my school with my students' privacy rights. Otherwise I may risk violating the Charter of Rights and Freedoms, which states everyone has the right to be secure from unreasonable search and seizure [case para. 172].
H: You make a very good point Meryl.
This is one of the exact arguments made in a recent Supreme Court case, R. v. A.M., in which a student was charged with possession of drugs on school property for the purpose of trafficking. To give us more information on this case and the legal aspects of school drug searches, let's go now via satellite to news legal correspondents, Arin Fenton and Michael Cruz. Welcome to the show.
A: Good evening Henderson
MC: Good evening Henderson
H: Arin, what other details can you share with our viewers about this case?
A: In 2000, the principal of St. Patrick's high school in Sarnia, Ontario, had given police a standing invitation to conduct random dog searches in response to concerns from parents about the possible presence of drugs at the school [case para. 24]. The principal had openly communicated this arrangement, as well as the school's zero-tolerance drug policy, to students and their parents. In November 2002, the police conducted a random dog search at the school and the sniffer dog alerted to one of the unattended backpacks in the school gym. The police proceeded to search the bag and found marijuana, magic mushrooms, other drug paraphernalia and the students' identification.
H: Unbelievable! So let me get this straight: the principal had some suspicion that there were drugs in the school based on feedback from the community. I don't see why this violates section 8 of the charter. It seems reasonable to allow a police search when the principal suspected that there would be drugs at the school.
MC: Not exactly Henderson. As Ms. Taylor stated earlier, section 8 prohibits unreasonable search and seizure. The principal's decision to allow the police search was not based on evidence that there would be drugs found at the school that particular day. Because he had given an open invitation to the police 2 years earlier, he agreed to allow the sniffer dog search. In order to justify a search without a warrant, the police needed to demonstrate that they "proceeded on the basis of objectively verifiable evidence supporting reasonable suspicion [case para. 42]." The police admitted at trial that they did not attempt to obtain a search warrant prior to taking action precisely because they had no evidence to support a warrant. Their search of the school was a violation of section 8 because it occurred for no reason other than mere speculation by both police and the principal.
H: Well said, Michael. Now let's open up the phone lines to get comment from viewers on the case. I see we have a call from Jennifer, a 17 year old student. Good evening Jennifer, you're on the air.
J: Hi Henderson. I just wanted to say I think it's really important to keep drugs out of school, but at the same time, I don't think it was fair to violate everyone's privacy like that. I mean, I'm a straight A student, I've never been involved with drugs but what if I just happened to be somewhere one day where someone was smoking weed and my bag picked up some of the buds. I'd be really upset if I was at that school and had all my stuff searched just because a dog mistakenly smelled something on my bag. Or what if the police just thought I looked suspicious and decided to search me. How is that fair? Don't I have any privacy rights when I'm at school?
H: Meryl, do you want to comment on that?
MT: Yes, Jennifer I understand your concern. I certainly don't condone violating a student's privacy without a valid reason; however, as a Principal one of my main responsibilities is to maintain a safe learning environment. So, students need to expect that there may be some instances when I may be required to search their personal effects or seize prohibited items.
AF: Ms. Taylor, the majority of the Supreme Court Judges in the present case supported your position that students do have a limited expectation of privacy in school settings. School authorities have more latitude to carry out their duties in keeping schools safe as long as they respect the constitutional rights of the students [para 44]. But to get back to your concern, Jennifer, that latitude generally does not apply to police actions towards students, even if you are in a school setting. They cannot conduct random warrantless searches based on unreasonable grounds [paras 44 - 48].
H: Thank you for your question, Jennifer. Now in the end, the police did find drugs in the student's backpack, right? Isn't that evidence enough to convict this student?
MC: Not in this case Henderson. You see, even though police are permitted to conduct a sniffer dog search without a warrant if they have reasonable suspicion, they must be prepared to defend their actions in judicial review if it is alleged that no grounds of reasonable suspicion actually existed [case p. 6, 8].
In this case, the majority of the Supreme Court justices determined that there was no evidence of reasonable suspicion to support the search, and therefore they were required to consider whether or not the evidence should be excluded, per section 24(2) of the Charter.
H: What a surprising result. But there are other questions that this case raises: If there had been suspicion that there had been drugs at school before the search started, would the search have been constitutional? What type of information would the principal have needed so that the suspicion could have been considered reasonable? Is the principal required to have information that a specifically named student be in possession of drugs or an unnamed student have drugs, meet reasonable suspicion as the standard? This has certainly been a very thought provoking discussion. Unfortunately, that's all the time we have for today. This concludes another episode of The Real Deal. Thank you to my guests, Meryl Taylor, Arin Fenton and Michael Cruz. I'm Henderson O'Brien, Good night.
