In cross-examination, the principal was questioned. “But you never, armed with specific information, had called [the police] and said this is what I know, therefore I think a search should be conducted.” He answered, “No.”
Constable Callander of the Sarnia police gave similar evidence. He was asked: “You did not have any direct awareness as to the existence of drugs and where that might be, and there was no indication that safety of people/students were at risk. You were not armed with any of that kind of information.” He answered, “No.”
The principal had heard occasional reports from parents or neighbours about “kids in our school who are doing drugs,” but nothing specific to the November 7, 2002, time period.
To facilitate the police search, the principal used the school’s public address system to tell everyone that the police were on the premises and that students should stay in their classrooms until the police had conducted their search. The effect of this announcement was that no student could leave his or her classroom for the duration of the police investigation.
The police, not the school authorities, took charge of the investigation. The principal testified that he had no involvement beyond giving permission and telling the students to remain in their classrooms. There was no discussion with him as to how the search was to be conducted.
The police search included the gymnasium. A police officer, a canine handler, was accompanied by his sniffer dog, Chief, trained to detect heroin, marijuana, hashish, crack cocaine, and cocaine.
There were no students in the school gymnasium but some backpacks were lying next to the wall. Chief alerted to one of the backpacks by biting at it — as he had been trained to do. The police handler gave the backpack indicated to Constable Callander, who physically searched through its contents.
The constable confirmed Chief’s identification of drugs, including five bags of marijuana; a tin box containing a further five bags of marijuana; a bag containing approximately ten magic mushrooms (psilocybin); and a bag containing a pipe, a lighter, rolling papers, and a roach clip. A.M.’s wallet, containing his identification, was in the backpack. A.M. was charged with possession of marijuana for the purpose of trafficking and possession of psilocybin.
Findings of the Lower Courts
Both the Ontario Youth Justice Court and the Ontario Court of Appeal ruled the searches unreasonable, with the result that the evidence seized was excluded and the charges against A.M. were dismissed. The youth court judge did not find any “bad faith” on the part of the police or the school principal. Still, the youth court judge said that the rights of every student at the school were violated on the day of the search. They were confined to their classroom while the dog sniffed.
In effect, the youth court judge stated that two searches were conducted on the day in question. The first search was the sniffer dog search, which resulted in the dog alerting police to A.M.’s backpack in the school gym. The second was physically searching the questioned backpack, a search that yielded the drugs.
A unanimous Court of Appeal affirmed the youth court judge’s decision. To the Court of Appeal, the central questions were:
1 Did the police conduct amount to a search?
2 If so, was the search unreasonable within the meaning of section 8 of the Charter?
(The relevant Charter provisions have been described earlier in “A Standard: The Charter of Rights and Freedoms.” Still, it may be useful to repeat the language of section 8: “Everyone has the right to be secure against unreasonable search and seizure.”)
CHALLENGE QUESTION
The Role of School Authorities
Q: Would the search have been unreasonable within section 8 of the Charter had the principal ordered the search — and not the police as in the case of The Queen v. A.M. — and had the police brought the suspicious backpack to the principal and had the principal turned over its illegal contents to the police?
A somewhat similar case involving a school-initiated search — The Queen v. M. (M.R.), [1998] 3 Supreme Court of Canada Reports 393 — was noted several times in The Queen v. A.M. This was an 8–1 decision of the Supreme Court. We will set out the facts and the Court’s reasoning and conclusions.
The Queen v. M. (M.R.), in a decision handed down by Justice Peter Cory, allowed a vice-principal to search a thirteen-year-old junior high school student, M.R., in the presence of police. They found a small quantity of marijuana. It was turned over to the police, and M.R. was charged. Several students had earlier informed the vice-principal that M.R. possessed drugs and that he intended to sell them to other students. That night, the school held a dance, for which 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