Canada: Case Law Foreshadows Enhanced Protection Against Search And Seizure Of Devices

The roles filled by educators are constantly expanding. Teachers and principals have duties to discipline activities that adversely affect the school climate1 and they are expected to exercise the care and attention of a reasonably prudent parent in keeping students safe.2 School officials are increasingly called upon to monitor student conduct to prevent bullying, harassment, and violence. More and more often, the prevention of cyberbullying compels school investigations into students' digital presences.

Meanwhile, students carry an ever-increasing depth of personal data around in their pockets. Constant developments in technology understandably prompt an increased interest for students in the protection of their digital privacy. 

The expansive mandate of educators to investigate threats to student safety portends a looming clash between the protection of personal lives of students and the need to ensure a safe and inclusive learning environment. The question emerging for principals, teachers, and students alike is: what are the appropriate parameters of an educator's search of a student device?

Section 8 Rights

Section 8 of the Canadian Charter of Rights and Freedoms provides for the right to be secure against unreasonable search or seizure.3 The basis of this constitutional search and seizure law is the concept of a reasonable expectation of privacy. This concept is used in two ways. First, it is used to determine whether the state conduct has interfered with an individual's reasonable expectation of privacy. Second, the concept of the reasonable expectation of privacy is relied on to determine whether a particular search or seizure is reasonable.4

Using the reasonable expectation of privacy to assess the reasonableness of a search allows for consideration of the interests at stake in a way that is highly context specific. In schools, the relevant context certainly includes the educator's mandate to ensure the safety of students and to prevent bullying and intimidation, including cyberbullying. The strength of the reasonable expectation model is that it requires explicit consideration of all of the relevant factors. It should be sufficiently flexible to take account of technological change.

The General "School Search" Framework

The Education Act makes it clear that educators' powers of search and seizure stem directly from their responsibilities to keep students safe and to effectively enforce discipline.5 Teachers have a duty to maintain discipline and order in the classroom and schoolyard,6 while principals have a general duty to maintain "proper order and discipline" in schools.7

Students have a diminished right to privacy while at school.8 Because of the need for educators to protect student health-and-safety and to maintain discipline, the law has historically been more permissive of searches by educators than it has been of searches by police. In searches of student property by school officials, there is no requirement for a search warrant; instead, the educator must have reasonable grounds to believe that a school rule or a law has been violated and that the search will provide evidence of the violation.9

How does this general school search framework apply to searches of digital devices? The answer will remain unclear until case law emerges to specifically address this issue. However, there is reason to believe that the general principles that have been applied to lockers, knapsacks, and even searches of the person may not be applied without modification to the search of digital devices. Recent developments in the law relating to police searches in criminal investigations have developed special rules in relation to the search of digital devices. These special rules may analogously impact the permissible parameters of educators' searches of student devices.

Case Law on Search or Seizure of Digital Devices

Recent case law from the Supreme Court of Canada has demonstrated that courts will not take privacy interests in digital devices lightly. The Supreme Court has prescribed enhanced protections to digital devices as opposed to other items to be searched.

R v Vu

One example is R v Vu.10 This case concerned the search of a computer found in a house that the police were searching with a search warrant. The issue before the Supreme Court of Canada was whether the search warrant that authorized the search of a location was sufficient to authorize a search of a computer found in that location. The general principles of search law would suggest that the answer should be yes: generally, a warrant to search a location authorizes the search of anything in that location in which the sort of evidence being sought could reasonably be expected to be found. However, in Vu, the Supreme Court unanimously held that this general principle does not apply to computers unless the warrant explicitly so specifies.

In Vu, the general rules of search law were modified because of the special privacy issues that present themselves in searches of digital devices. The Court reasoned that "it is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer."11

Further, the Court was clear that a computer is not analogous to a filing cabinet or a briefcase and that the nature of the privacy interests at stake in relation to a computer search are a separate animal, saying:

"Computers potentially give police access to vast amounts of information that users cannot control, that they may not even be aware of or may have chosen to discard and which may not be, in any meaningful sense, located in the place of the search. These factors, understood in light of the purposes of s. 8 of the Charter, call for specific pre-authorization."12

R v Fearon

A second example was R v Fearon.13 This case raised the question of whether the police could search a cell phone found on a suspect during a search incident to arrest. Under the general search law, the police can, without a warrant, conduct a search of a person whom they lawfully arrest. This same power also enables warrantless searches of the general area around, as well as the belongings of, a person who has been placed under arrest. The majority of the Supreme Court decided that the power of search incident to arrest included the power to search a cell phone found on the person at the time of arrest. However, the majority imposed a number of special conditions on the exercise of that power, saying:

"the search of a cell phone has the potential to be a much more significant invasion of privacy than the typical search incident to arrest. As a result, my view is that the general common law framework for searches incident to arrest needs to be modified in the case of cell phone searches incident to arrest. In particular, the law needs to provide the suspect with further protection against the risk of wholesale invasion of privacy which may occur if the search of a cell phone is constrained only by the requirements that the arrest be lawful and that the search be truly incidental to arrest and reasonably conducted."14

The majority reasoned that an incidental search of a computer or "smartphone" could be justified where the search is narrowly tailored to the purpose that justified the search, and officers take detailed notes of what they have examined and how the device was searched.15 According to the majority, officers must also show that there was a legitimate law-enforcement reason to engage in the search in the first place. This may include: (a) protecting the police, the accused, or the public, (b) preserving evidence or (c) searching for evidence where an investigation may be frustrated if evidence is not gathered in a timely manner.16 In imposing special conditions on digital searches incident to arrest, the Court further recognized the special privacy interests that arise in relation to the search of digital devices.

Vu and Fearon arose in the criminal context. However, they raise the question of whether, when educators search a digital device, the relaxed constitutional standards that have been applied to school searches will need some modification to provide enhanced safeguards of student rights.

Guidelines for Educators

  1. While the law remains undecided, educators should not assume that they are entitled to search students' digital devices in the same manner in which they may search students' lockers or knapsacks. The law may yet develop to provide enhanced protection against searches of student devices, necessitating either heightened search objectives (e.g., health-and-safety) or enhanced evidence if the related student conduct is relatively minor. 
  2. Searches of student devices will likely be justified in the context of investigations into threats to student health-and-safety. Failure to prevent serious harm to students may open educators to liability from negligence actions if school officials fail to perform their role to the standard of a "reasonably prudent parent." Educators must be able to take proactive measures to guard against ongoing threats of violence and bullying.
  3. When searching a student device, educators should keep a record of what was searched, the reason for the search, and the extent to which the device was searched.
  4. All searches of student devices by educators should be narrowly tailored to the purpose of the search itself. Fishing expeditions will not be tolerated under section 8 of the Charter, and the depths of digital searches must be proportionate to the severity of the threat.

Footnotes

Education Act, RSO 1990, c E2, s 306(1).

Myers v Peel County Board of Education, [1981] 2 SCR 21, 1981 CarswellOnt 579 at para 14.

Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982(UK), 1982, c 11.

4 The Honourable Thomas A. Cromwell, "Search and Seizure, Schools and the Digital Age," (paper delivered at the Canadian Association for the Practical Study of Law in Education Conference: A Bridge Over Troubled Waters, Halifax, Nova Scotia, April 29, 2018).

Supra note 1, ss 264-265.  

Ibid, s 264(1)(e).   

Ibid, s 654(1)(b).

R. v. M(MR), [1998] 3 SCR 393.

9 It is important to note that this standard only applies to school officials provided that they are not acting as agents for the police. Different and higher standards apply in cases where educators act as police agents, as they do in the case of police searches.

10 R v Vu, 2013 SCC 60.

11 Ibid at para 40.

12 Ibid at para 24.

13 R v Fearon, 2014 SCC 77.

14 Ibid at para 58.

15 Ibid at para 82.

16 Ibid at para 83.

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