SECOND-CLASS CITIZENS

Thanks to the recent Supreme Court ruling regarding the search for
drugs of a Fall River teenager, public-school students have become
Canada's latest

When Nova Scotia legal-aid lawyer Mona Lynch made her maiden
appearance before the Supreme Court of Canada last June, she must have
felt as if she'd been ambushed.

Lynch represented a 13-year-old student from George P. Vanier Junior
High in Fall River who had been busted for possession of marijuana.
Acting on tips from students he considered reliable, vice-principal
Michael Cadue searched the youngster during a school dance, in the
presence of an RCMP officer he had summoned beforehand.

The law has long regarded physical searches of a person's body to be
one of the most extreme intrusions the state can inflict upon a
citizen. Section eight of the Canadian Charter of Rights and Freedoms
protects against unreasonable search and seizures.

Because Cadue's search was undertaken without a warrant, and in the
presence of a police officer, family court Judge William Dyer
concluded the student's Charter rights had been violated. He booted
the case.

A three-judge panel of the Nova Scotia Court of Appeal disagreed, and
ordered the student sent back for trial. Because the Appeal Court
judges were unanimous, the student had no automatic right of appeal to
the Supreme Court of Canada.

So Lynch applied for leave to appeal, and when it was granted in
October 1997, felt encouraged someone on the court at least wanted to
hear arguments on the side of privacy.

Guess again. At last June's hearing, the justices subjected Lynch to a
barrage of unsympathetic questions so gruelling that when the decision
upholding the Appeal Court ruling came down last week, Lynch's only
surprise was a single judge dissented.

Justice John Major's lone dissent turned on a side issue. He concluded
Cadue's conduct of the search in the presence of a police officer
effectively transformed the vice principal into an agent of the police.

Less rigorous grounds

As such, he could not be held to the less rigorous grounds for a
search that might apply to a school official enforcing school rules,
but had to adhere to the strict standard required of a police officer
enforcing criminal sanctions. After all, once the principal found a
baggie of grass tucked into the student's sock, the police officer
immediately arrested the youngster and read him his rights. Major
endorsed the trial judge's conclusion that, with the arrival of the
police officer, "a criminal investigation was in full flight," and the
usual requirements for reasonable and probable cause should have applied.

"It is disingenuous ... to suggest that the presence of the police
officer had no affect on [the student's] perception of the
interrogation and subsequent search," Major wrote.

Major had no quarrel, however, with Justice Peter Cory's central
conclusion a secondary-school student enjoys a diminished right to
privacy in a school setting.

Few would dispute school officials sometimes need to conduct searches.
An extreme example would be a teacher who received credible tips a
student was carrying a loaded gun. The question is whether a student
suspect is entitled to less Charter protection than any other citizen,
particularly when criminal sanctions are contemplated.

Cory's reasoning on this point is curious. He acknowledges a student
would have "a subjective expectation that his privacy, at least with
respect to his body, would be respected," and "this expectation is
(not) rendered unreasonable merely by virtue of the student's presence
in a school." But in the next breath, he points out even a reasonable
expectation of privacy can be "diminished in some circumstances."

There are two places in which courts have found such diminished
expectations: border crossings and prisons. Cory now adds a third:
elementary and secondary schools, where students "know" the school's
responsibility for "providing a safe environment and maintaining order
and discipline" reduces their freedom from unreasonable body searches.

This results-driven reasoning amounts to argument by declaration.
It's true because Justice Cory says it's true. It also betrays an
implicit institutional mind set: because the investigation takes place
inside an institution, the institution's need to maintain order and
discipline trumps the Charter.

Leaned heavily on a U.S. decision

To justify this position, Cory leans heavily on a U.S. decision
involving a violence-prone inner-city school in New Jersey, and a
single Ontario Appeal Court decision based largely upon it. Both cases
have drawn sharp criticism in academic legal journals here and in the
U.S. Cory acknowledges the U.S criticism, but doesn't get into its
content, and makes no reference to the Canadian critics.

So criminal investigation of students just got a lot easier. Any
shrewd police force will now get school officials to carry out the
initial stages of such probes, with the diminished protection of
privacy the court has sanctioned.

The court's assertion students need less protection than other
citizens against intrusive acts by the state is as unconvincing as it
is unnecessary to the goal of orderly, disciplined, schools.

Checked-by: Rich O'Grady