Dear Mr Conroy,
I am a grade 11 student in a rural high school in Saskatchewan. Last spring on a Friday at about 1:30 pm, the school alarms were sounded and all the students were asked to leave the school. As we sat and stood around on the lawn, the RCMP brought dogs into the school and searched a number of lockers. The principal said that they had reports of students selling marijuana. By the way, no marijuana was found. My question is, what are my rights as a 17 year old student? Can they just search through my packs, lockers and personal belongings? Is it a possible constitutional issue? J.K.
Answer:
Whenever “the State” or one of our governments through their agents or representatives claim authority to intrude into an area or place in which someone has a “reasonable expectation of privacy”, Section 8 of the Canadian Charter of Rights and Freedoms, which forms part of our Constitution, comes in to play. It provides that everyone has the right to be secure against unreasonable search and seizure.
The person who claims a violation of their constitutional rights bears the onus of proving the violation in court. This includes establishing a “reasonable expectation of privacy” in the relevant place that was searched in addition to the unreasonableness of the search itself - that it was not authorized by law; that if it was, the law itself is unreasonable; or, that the manner in which it was carried out was unreasonable. However, you have to pass the first stage of the inquiry before it proceeds to the second. The Supreme Court of Canada (in a case called R. v. M. (M.R). [1998] 3 SCR 393) has held that it is reasonable to have a subjective expectation of privacy in one’s person. that everyone has the right to be secure against unreasonable search and seizure.
The person who claims a violation of their constitutional rights bears the onus of proving the violation in court. This includes establishing a “reasonable expectation of privacy” in the relevant place that was searched in addition to the 

unreasonableness of the search itself - that it was not authorized by law; that if it was, the law itself is unreasonable; or, that the manner in which it was carried out was unreasonable. However, you have to pass the first stage of the inquiry before it proceeds to the second.
The Supreme Court of Canada (in a case called R. v. M. (M.R). [1998] 3 SCR 393) has held that it is reasonable to have a subjective expectation of privacy in one’s person. However, this expectation may be diminished in some circumstances and it is specifically lessened for students attending a school. This diminished expectation was found to exist based on students’ knowledge and acceptance of the fact that the school authorities have to provide a safe school environment for them and maintain order and discipline there. This means that the students know that they will be sometimes subject to search of their person and personal effects, including their lockers and any prohibited items found, subject to seizure. The court substantially lessened the usual requirements, including the need for a warrant.
While this case stands for the proposition that searches and seizures by school authorities are subject to section 8 of the Charter as they are part of “government”, this diminished expectation of privacy reduces the likelihood of a court excluding any prohibited items found in the search from the evidence at trial.
This case only applies to school authorities, even though a plain clothes policeman was present as a matter of school policy. The court held that the vice principal in the circumstances of the case was not acting as agent for the police. Consequently, if the police search and seize at a school - without a warrant or with a warrant, but still in an unreasonable manner - and perhaps getting the teachers to act as their agents - then the full requirements of section 8 apply.
Therefore it sounds like your section 8 rights may have been violated. The police did the searching and you make no mention of a warrant. Clearly the school authorities 

supported the police, but it is unclear who received the information - the police first, who told the school or the school principal, who then brought in the police. Either way, nothing was found, so you are not charged with anything and there is no evidence to exclude as the remedy under section 24(2) of the Charter. You could apply for an “appropriate and just remedy” under section 24(1), but it would probably not be worthwhile economically.
This case provides a good example of how the law will often apply different standards where “children” or “young people” are involved, on the basis that they are immature and in need of protection until they reach adulthood. Even John Stuart Mill acknowledged this exception to “the harm principle”.

John Conroy, Q.C., CONROY& COMPANY Barrister and Solicitor 2459 Pauline Street, Abbotsford, BC V2S 3S1 Telephone: (604) 852-5110 Fax: (604) 859-3361 Website: www.johnconroy.com

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