Is it time for a second look at laws that empower Canada’s school authorities the right to break the rules guaranteed under our Charter of Rights and Freedoms?
The recent strip search of a 15-year-old female student in Quebec City who was suspected of selling or carrying pot has raised the question.
Canada’s school staff are responsible for protecting students within the walls of learning institutions. And unlike police, they can skirt what’s legally required under the charter while conducting a criminal investigation. Such power opens the door to abuse, as witnessed by the search of the teen search at Neufchatel High School.
If it were police conducting the investigation, and they behaved in the same manner, the officers would have broken every rule in the charter under various sections that address illegal search and seizure, the right to a lawyer, and protection against unlawful detention — to name just a few.
According to a Canadian Press report, the girl was detained by the female school principal and a female staff member after being suspected of selling marijuana. She was taken to a room and asked to strip naked. No pot was found.
Twice the girl asked to phone her mother, but was refused. That would pretty much rule out her request for a lawyer if she asked. A call to a lawyer is one of the closely guarded rights under the charter.
Quebec Education Minister Yves Bolduc initially defended the search, saying school authorities followed proper procedure as outlined in a 2010 government policy document. But after being greeted by a firestorm of criticism in the legislature, Bolduc now says the search policy will be reviewed.
As well, an online petition with more than 2,000 signatures is calling for his resignation.
The girl’s mother is considering suing the school board. “This can’t be legal, it simply can’t be right,” the mother told CTV news. “She (her daughter) asked them twice to call me. They refused. Even criminals get that opportunity. My child is not a criminal.”
Lorraine Normand-Charbonneau, president of Quebec’s largest group of school directors, defends the search, arguing that guidelines were followed according to the 2010 government policy.
That policy was drafted in conjunction with Quebec provincial police, and based on a 1998 Supreme Court of Canada decision that grants school staff more powers than police in conducting searches — providing they are “reasonable.”
The search of this girl, who was subsequently expelled from the school although no pot was found, would seem to go beyond the definition of “reasonable.” However, Canada’s top court in its 1998 ruling offered no guidelines as to what is “reasonable.”
That case addressed the issue of illegal searches and seizures by teachers and principals in Canadian schools — not colleges or universities. A vice-principal had been informed by some students that another student planned to sell drugs at an upcoming school dance. Marijuana was found in the student’s sock during a search by the vice-principal, in the presence of an RCMP officer.
The student’s lawyer argued the detention of the student was in contravention of the charter and he was not allowed to consult a lawyer until after the search and seizure, which under most circumstances would have constituted an illegal search.
But the top court basically ruled the rights afforded under the charter do not apply to a learning institution. “Students know that their teachers and other school authorities are responsible for providing a safe environment and maintaining order and discipline in the school,” the court ruled. It further added: “They must know that this may sometimes require searches of students and their personal effects and the seizure of prohibited items. It would not be reasonable for a student to expect to be free from such searches.”
This seems questionable. To suggest students are surrendering their fundamental rights the moment they step foot into a school flies in the face of the basic philosophy of equal treatment under the Charter of Rights and Freedoms.
Civil rights lawyer Pearl Eliadis told CBC radio that while school authorities do have powers that don’t follow the rules of the charter, “I think there are real concerns here” in the strip search of the student.
This could end up limping its way through the courts, if the family sues.
Ultimately, however, the better answer is that legislators, at the provincial and federal levels, clarify this law once and for all.
Rick Zemanek is a former Advocate editor.