In February 2015, a Québec City secondary school attracted national attention after a 15 year old female student was strip-searched by a female principal and female staff member at Neufchâtel High School within the De la Capitale School Board (the "Board"). After reports about the strip search began to circulate, the Board released a statement saying that the school had reason to believe the student had been trafficking drugs for months.1
After the incident, the student reported to the media that the female principal and a female staff member took her to a separate room and asked her to remove all her clothing, including her underwear.2 The staff member held a blanket in front of the student while the principal searched the student's clothing. The Board stated that there was no "visual or physical contact with the student" during the search.3 The student alleged that she was denied a request to contact her mother before the search was conducted, although the Board said the girl refused to call her mother when given the chance. No drugs were found during the search.
The student was suspended and transferred to a different school.
The student challenged the suspension in a request to the
Québec Superior Court. The Board opposed the request,
stating that it had reason to believe she had been selling drugs on
school property for several months.
Further, the Board's lawyer stated that the school had "serious reasons for expelling the student" that could not be reported in the media.4 The Québec Superior Court Judge rejected the student's request.
School Authority For Searching Students
Section 8 of the Canadian Charter of Rights and Freedoms provides that: "Everyone has the right to be secure against unreasonable search or seizure." The extent of a student's right to be free from unreasonable searches and seizures in a school context has been widely explored by Canadian courts.
On November 26, 1998, the Supreme Court of Canada released written reasons in the case of R. v. M. (M.R.).5 The decision marked the first time that the Supreme Court had directly considered the scope of a student's constitutional right, within a school context, to be free from unreasonable searches and, conversely, the extent of a school's interest in searching students.
In determining when and in what circumstances a search by a school official should be considered unreasonable and therefore in violation of the student's rights under the Canadian Charter of Rights and Freedoms, the Supreme Court emphasized that the duties and obligations entrusted to schools are fundamentally important.6 At the same time, the Supreme Court recognized that these duties and obligations cannot be separated from the practical responsibilities and challenges of running a school. The Supreme Court affirmed that, in light of the contemporary challenges faced by school officials in teaching and caring for students, they must be provided with flexibility in addressing discipline problems. This flexibility, in the view of the Supreme Court, includes a broad right to search a student where that student is reasonably suspected of being in possession of a prohibited weapon or an illicit drug.
In M. (M.R.), the Supreme Court laid out some general principles about searches:
1. A warrant is not essential in order to conduct a search of a student by a school authority.
2. The school authority must have reasonable grounds to believe that there has been a breach of school regulations or discipline and that a search of a student would reveal evidence of that breach.
3. School authorities will be in the best position to assess information given to them and relate it to the situation existing in their school. Courts should recognize the preferred position of school authorities to determine if reasonable grounds existed for the search.
4. The following may constitute reasonable grounds in this context: information received from one student considered to be credible, information received from more than one student, a teacher's or principal's own observations, or any combination of these pieces of information which the relevant authority considers to be credible. The compelling nature of the information and the credibility of these or other sources must be assessed by the school authority in the context of the circumstances existing at the particular school.7
While the Supreme Court in M.(M.R.) did not specifically address whether, or when, a school could conduct a strip search of a student, it provided a list of factors to consider in determining whether a search was reasonable.8
- The first step is to determine whether it can be inferred from the provisions of the relevant EducationAct that teachers and principals are authorized to conduct searches of their students in appropriate circumstances. In the school environment such a statutory authorization would be reasonable.
- The search itself must be carried out in a reasonable manner. It should be conducted in a sensitive manner and be minimally intrusive.
- In order to determine whether a search was reasonable, all the surrounding circumstances will have to be considered.
In a 2001 decision, R v. Golden, the Supreme Court of Canada provided guidelines for how police should conduct strip searches in accordance with the Canadian Charter of Rights and Freedoms.9 While that case was in the context of police operating in the field, the Court stated that it was best to conduct searches at a police station except in the most exigent circumstances.
Board's Justification For Strip Search
In the Neufchâtel case, the Board released a statement clarifying that the school's actions conformed to a Québec education policy report, Présence policière dans les établissements d'enseignement (the "Policy"), and occurred in the context of the school administration's responsibility to ensure a safe and secure environment for students.10
The Policy serves as a guide for relations between the police authorities and educational institutions. It refers to M. (M.R.) as establishing the basis for school authorities to conduct searches.
The Board further stated that searches of students and their
personal effects are permitted if there are reasonable grounds to
believe that a rule has been violated and evidence can be found on
the student's person. The Board relied on the following
guidelines in the Policy for conducting
a strip search:
- A screen is used;
- The clothing is searched, not the individual;
- The search is done under the supervision of two persons, preferably with another staff member of the same sex as the student; and
- There is no contact with the student.
The Board also relied on M. (M.R.) in its justification for the strip search of the Neufchâtel student. The Board concluded its statement by saying that the situation at Neufchâtel was exceptional, but nonetheless was conducted under established guidelines. The Board, however, undertook to review its policies in order to make any necessary changes.
Québec Government Changes Position On Strip Searches
Québec's then Minister of Education, Yves Bolduc, commented on the incident. Mr. Bolduc initially defended the search, saying that school staff are permitted to strip-search students as long as the search is done in accordance with the law and school policy, and conducted in a "respectful fashion".11 The Minister asked Fabienne Bouchard, a former prosecutor and retired lawyer to review the incident.
Québec Premier Philippe Couillard stated that there would be no more strip searches in schools, except in extreme cases where police deem it necessary.12 This was confirmed in a May 13, 2015 report prepared by Mr. Bouchard. Mr. Bouchard confirmed that school officials should call police where they have serious grounds to believe a student is involved in drug trafficking. Newly appointed Education Minister Francois Blais said the practice was not acceptable "because it's a kind of humiliation for people," and also because "it's not really efficient."13
Lesson for Educators
It is difficult to argue that the Supreme Court of Canada's reasons in M. (M.R.) provide schools with blanket authority to conduct strip searches. The list of factors in M. (M.R.) for determining whether a search is reasonable includes whether the search was done in a minimally intrusive manner. In the Neufchâtel case, the student was asked to remove all of her clothes, which is significantly more invasive than the search in M. (M.R.) where the student was asked to pull up his pant leg. It is arguable that a less intrusive search might have been done in the course of investigating suspected drug trafficking.
Given the principles articulated by the Supreme Court of Canada in M. (M.R.) and Golden, personal searches of students, but not strip searches, likely continue to be appropriate where reasonable grounds exist. Police should be contacted where a strip search is believed to be necessary, particularly in the context of a student suspected of trafficking drugs or possessing weapons.
Note: the Board's statement and the Policy are paraphrased from the original French-language sources and should not be relied upon as a translation of the content of either document.
1 De la Capitale School Board Press Release: http://www.cscapitale.qc.ca/documents/17-02-15-CS_interventions_fouilles.pdf.
2 CBC, "Strip-searched girl suspended by Quebec City school", CBC News, February 19: http://www.cbc.ca/news/canada/montreal/strip-searched-girl-suspended-by-quebec-city-school-1.2963032.
4 CBC, "Strip-searched girl can't return to her school, Quebec judge rules", CBC News, March 16: http://www.cbc.ca/news/canada/montreal/strip-searched-girl-can-t-return-to-her-school-quebec-judge-rules-1.2997368
5 R. v. M. (M.R.). 1998 CanLII 700 (SCC).
6 Supra, at para. 35.
7 Supra, at para. 50.
8 Supra, at para. 54.
9 R. v. Golden, 2001 SCC 83
10 Government of Quebec, Présence policière dans les établissements d'enseignement http://www.sq.gouv.qc.ca/parent-et-enseignants/cadre-de-reference/cadre-de-reference.pdf.
11 Steve Rukavina, "Yves Bolduc says teen strip search allowed in high schools", CBC News, February 17, 2015: http://www.cbc.ca/news/canada/montreal/yves-bolduc-says-teen-strip-search-allowed-in-high-schools-1.2960521.
12 CBC, "Strip-searched girl can't return to her school, Quebec judge rules", CBC News, March 16, 2015: http://www.cbc.ca/news/canada/montreal/strip-searched-girl-can-t-return-to-her-school-quebec-judge-rules-1.2997368
13 Jocelyne Richer, "Quebec school officials no longer allowed to strip search students", Toronto Star, May 14, 2015 : http://www.thestar.com/news/canada/2015/05/13/quebec-school-officials-no-longer-allowed-to-strip-search-students.html.
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