Why school strip searches for drugs are legally troubling
Quebec teen recently strip searched by school officials on suspicion of selling drugs
If a high school principal suspected a student had a bomb under their clothes, a strip search might be in order.
But if that same principal thought the student was hiding marijuana, forcing the student to strip could fail to meet the legal standard in a country where the Charter of Rights and Freedoms says individuals should not be subjected to "unreasonable search and seizure."
- Strip-searched student's family considers suing school
- Yves Bolduc backtracks on school strip search policy
- Yves Bolduc says teen strip search allowed in high schools
Police officers and corrections staff across Canada can do strip searches in limited circumstances, but several legal experts see little or no justification for school staff to strip search students suspected of carrying drugs, as happened recently with a Quebec teen.
"In my view, there is no justification for strip searches in schools unless there is an extreme emergency," says David Tanovich, a University of Windsor law professor.
A strip search could be justified, he suggests, if, for example, a school official believed "a student had a weapon hidden in their underwear and refused to hand it over."
Tanovich, who argued what is considered the leading Canadian case on strip searches before the Supreme Court of Canada, says that if there is a suspicion of drug possession, there is another approach.
"If the school has reasonable grounds that the person has drugs or other contraband in their underwear or buttocks, they should keep them in a room with someone and call the police."
In the view of Toronto lawyer Peter Rosenthal, strip searches by school officials "could be regarded as an assault."
That is not what happened at Neufchatel high school in Quebec City last week.
A 15-year-old girl, who was suspected of selling drugs, told Le Journal de Montreal that the female school principal and another female staff member took her to a room and asked her to take off her clothes, including her underwear.
The staff member held a blanket in front of the girl while the principal searched her clothes.
Quebec Education Minister Yves Bolduc initially said high school staff are allowed to strip search students as long as it's done in a "respectful fashion." But after a firestorm of criticism, Bolduc backtracked and a day later said he will re-examine the policy.
Firestorm of criticism
The B.C. Civil Liberties Association was pleased to hear about the review, says the group's policy director, Micheal Vonn.
The allegations in this case did not require the kinds of actions that were taken in order to make students safe.- Micheal Vonn
That said, Vonn says the issue should have been clarified "at the front end before we had someone subjected to these practices."
And those practices, she says, weren't warranted in the Quebec incident.
"This is not a bomb. The allegations in this case did not require the kinds of actions that were taken in order to make students safe."
Safety is of paramount concern for school officials and parents alike, but many argue that concern must be balanced with a person's rights and common sense.
"We appreciate the mandate of the school is student safety, but that justification is being stretched beyond all bounds here to justify the strip searching of a student who could simply be asked to leave the school grounds," Vonn suggests.
Keeping schools safe
Searches do often happen in schools, although the focus is typically lockers and backpacks.
An Ontario Court of Appeal decision from 1986 determined that "a school administrator could conduct a personal search of a student despite the student's legitimate expectation of privacy, due to the administrators' duty to maintain a safe and orderly learning environment," says Benjamin Kutsyuruba, an associate professor in the faculty of education at Queen's University in Kingston, Ont.
Another case before the Supreme Court of Canada also addressed the issue.
"A random sniffer‑dog search in a school would be deemed reasonable where it is based on a generalized reasonable suspicion, providing a reasonably informed student would have been aware of the possibility of random searches involving the use of dogs," says the 2008 decision in R. v. AM.
Schools are unique environments.- Supreme Court of Canada case R. v AM, 2008
"Schools are unique environments," the decision goes on, "and the application of this lower standard is appropriate given the importance of preventing and deterring the presence of drugs in schools to protect children, the highly regulated nature of the school environment, the reduced expectation of privacy students have while at school, and the minimal intrusion caused by searches of this nature.
The decision cautioned that police can't go into a school and do a search "whenever they please on the basis that drugs may be found there on any given day. Reasonable suspicion requires more than a mere hunch."
Underlying any consideration of the validity of strip searches of students is Section 8 of the Canadian Charter of Rights and Freedoms, which says, "Everyone has the right to be secure against unreasonable search or seizure."
Strip searches most commonly occur in police and prison settings.
"The Supreme Court of Canada has looked at this and said it's not that this could never be justified," says Vonn. "In fact, it's fairly common in Canada, but you're supposed to be able to articulate your justification for this because of the highly invasive nature of this search."
Toronto criminal lawyer Boris Bytensky says he was "shocked" to hear about the school strip search in Quebec.
"I can't imagine that this kind [of] searching could be justified constitutionally in anything but the most extreme circumstance."
Vonn hopes there's no repeat of the Quebec incident.
"It is one thing to keep students safe in schools and of course that is an overriding consideration," she says.
"It is another thing to be introducing … prison practices into schools under the banner of a safety mandate that is too sweeping and, in fact, in this case, not even commonsensical."