the vice-principal was responsible.
These were the facts, as stated by Justice Cory:
When [the vice-principal] saw [the student] arrive at the dance, he called the RCMP to request that an officer attend at the school. He then approached [the student] and his friend and asked them to come to his office. He asked each of the students if they were in possession of drugs and advised them that he was going to search them.
The RCMP officer … then arrived, dressed in plain clothes. He spoke briefly with [the vice-principal] outside the room, then entered, identified himself to the two boys and sat down. He did not say anything while [the vice-principal] spoke to the students and searched them.
[The student under suspicion] turned out his pockets and, at the request of [the vice-principal], pulled up his pant legs. The vice-principal noticed a bulge in [the student’s] sock and removed a cellophane bag. He gave the bag to [the RCMP officer] who identified the contents as marijuana. [The officer] then advised [the student] that he was under arrest for possession of marijuana and read to him the police caution and his right to counsel. [The officer] also advised him that he had the right to contact a parent or adult. [The student] attempted unsuccessfully to reach his mother by phone and stated that he did not wish to contact anyone else. [The officer] and [the student] then went to [the student’s] locker and searched it, but nothing was found there.
At trial, the judge concluded that the search had violated [the student’s] rights under the Charter and excluded the evidence found in the search. The Crown did not offer any further evidence, and the charge against [the student] was dismissed. The Court of Appeal allowed the Crown’s appeal and ordered a new trial. Thereafter, leave to appeal to this Court (the Supreme Court of Canada) was granted.
For the Court, Justice Cory stated:
The vice-principal conducted the search. The police constable had no role in this regard. He was passive.
The vice-principal had reasonable grounds for suspicion that the student had drugs. The student informants had given reliable information in the past.
The school had a clear policy against unlawful drugs on the premises.
The school administrators, including the vice-principal as well as the teachers, were mandated by law to ensure good order, discipline, and safety of students.
Students had to understand that their rights to privacy had to be confined within the limits of what it takes to run an orderly and safe school.
The search was reasonable and respectful of the student. It took place within the vice-principal’s office. The principal gave the student the opportunity to produce the unlawful drugs.
Justice Cory indicated that if the police officer had conducted the search, the Court may have applied a different and higher standard.
The case of The Queen v. M. (M.R.) was different from The Queen v. A.M., where the police initiated and carried out the search. The principal was merely there at the bidding of the police. Further, and perhaps more importantly, in The Queen v. A.M. there was, on the facts, no reasonable basis for believing that any student had on his/her person unlawful drugs. At most, the principal suspected that he might find such drugs.
On the facts in this challenge question, the search would likely be deemed unlawful because there was no basis for a reasonable suspicion that students had carried unlawful drugs into the school. Even with a lower standard for school administrators for conducting a search, the administration must have a reasonable basis for suspicion that unlawful drugs are present.
The Queen v. A.M. :
The Supreme Court of Canada Decides
The Supreme Court of Canada consists of nine justices. A majority (five justices) is enough to constitute a decision binding on the lower courts. In the case of The Queen v. A.M., the Court’s decision was fragmented: parts of it brought majority holdings and parts of it brought no majority. To the extent there was no majority ruling, the issues there reflected are not settled. (Of course, if only eight justices took part in a decision, and they split 4–4, then the decision of the lower court would remain in effect. At times, the Court will decide cases in panels of seven justices. Then a majority consists of four justices.)
We will begin with two issues that the Court majority did resolve:
1 Does section 8 of the Charter protect students while in school?
2 Was there a search within the meaning of section 8 of the Charter?
Seven justices ruled that there was such a search and, in that regard, that students were protected by section 8 of the Charter. Justice LeBel stated this, speaking for himself and Justices Morris Fish, Abella, and Charron, and reflecting the conclusions as to this aspect of the case in the concurring opinion of Justice Binnie and Chief Justice McLachlin.
(Note that Justice Bastarache also agreed that there was a search, and that it was one that violated section 8 of the Charter. However, as we pointed out elsewhere, he would have allowed the evidence to be admitted at the trial of A.M. Justices Deschamps and Rothstein dissented from the majority view. They argued that A.M. could not claim rights under section 8 of the Charter because, on the facts, he had no reasonable expectation of privacy, a condition necessary for applying section 8 of the Charter. See, “Dissent from the Majority: A Lawful Search,” in this chapter.)
Justice LeBel stated:
I have read the reasons of my colleague Binnie J. I agree that the appeal should be dismissed.… Students are entitled to privacy even in a school environment.… Entering a schoolyard does not amount to crossing the border of a foreign state. Students ought to be able to attend school without undue interference from the state, but subject, always, to normal school discipline.
As found by the Court of Appeal and by Binnie J., a search was conducted. The authority for that search was nowhere to be found in the statute law or at common law. This is not a case, for example, where the police would have entered the school under the authority of a search warrant and used sniffer dogs to assist in effecting a more focused search. Nor was the dog-sniffer search conducted by the school authorities on proper grounds as set out in M. (M.R.). [Discussed in “Challenge Question: The Role of School Authorities.”]
Our Court should not attempt to craft a legal framework of general application for the use of sniffer dogs in schools. As a result, the evidence was properly excluded under section 24(2) of the Canadian Charter of Rights and Freedoms. I would dismiss the appeal.
(See “You Be the Judge: Bus Station Stakeout.” The reasoning in the case discussed in the exercise was incorporated into the reasoning of Justice LeBel.)
What Kind of Search?
In effect, the Court majority found no reasonable basis for a suspicion of wrongdoing that would have legitimized the search under section 8 of the Charter:
If there were grounds for reasonable suspicion that an unlawful act had been committed, or, in this case, that a student had been or was trafficking in prohibited drugs, a search by a sniffer dog likely would have been permitted. But, even in reaching this conclusion, it would be necessary to ask — what kind of search? Here the search did not involve the students, as such. That is, they were not forced to a physical search. Indeed, they were not even in the area where the search was conducted [emphasis added].
The concurring opinion of Justice Binnie and Chief Justice McLachlin was:
