R. v. M. (M.R.)

R. v. M. (M.R.)
Collection
Supreme Court Judgments
Date
1998-11-26
Report
[1998] 3 SCR 393
Case number
26042
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
Nova Scotia
Subjects
Constitutional law
Notes
SCC Case Information: 26042
Decision Content
R. v. M. (M.R.), [1998] 3 S.C.R. 393
M.R.M. Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. M. (M.R.)
File No.: 26042.
1998: June 25; 1998: November 26.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for nova scotia
Constitutional law -- Charter of Rights -- Application -- Search and seizure in schools -- Student at junior high school suspected of drug dealing and searched at school by vice‑principal in presence of RCMP -- Whether guarantee against unreasonable search and seizure applicable to searches of students in schools -- Canadian Charter of Rights and Freedoms, s. 32 .
Constitutional law ‑‑ Charter of Rights ‑‑ Search and seizure ‑‑ Schools ‑‑ Student at junior high school suspected of drug dealing and searched at school by vice‑principal in presence of RCMP ‑‑ Illegal drugs found ‑‑ Circumstances in which search by school officials unreasonable ‑‑ Whether normal standards for search and seizure applicable in school situations -- Whether evidence seized admissible ‑‑ Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .
Constitutional law -- Charter of Rights -- Detention -- Schools -- Student suspected of drug dealing compelled to attend at school official’s office and to submit to search by vice-principal in presence of RCMP -- Whether student detained within meaning of s. 10 (b) of the Canadian Charter of Rights and Freedoms .
A junior high school vice‑principal was given reasonably reliable information from students that the accused, a student, was intending to sell drugs at a school function on school property. He asked the accused and his companion to come to his office where he asked each if they were in possession of drugs and advised them that he was going to search them. A plain-clothed RCMP constable, called by the vice-principal pursuant to school policy, was present but said nothing while the vice‑principal spoke to the students and searched them. The vice‑principal seized a hidden cellophane bag of marijuana and gave it to the constable who advised the accused that he was under arrest for possession of a narcotic. The constable read to him the police caution and his right to counsel, and advised him that he had the right to contact a parent or adult. The accused attempted unsuccessfully to reach his mother by phone and stated that he did not wish to contact anyone else. The constable and the accused then went to the accused’s locker and searched it but nothing was found there.
The trial judge found that the vice-principal was acting as an agent of the police and held that the search violated the accused’s rights under the Canadian Charter of Rights and Freedoms . He excluded the evidence found in the search. The Crown did not offer any further evidence, and the charge against the accused was dismissed. The Court of Appeal allowed the Crown’s appeal and ordered a new trial. At issue here is when and in what circumstances a search by an elementary or secondary school official should be considered unreasonable and therefore in violation of the student’s rights under the Charter .
Held (Major J. dissenting): The appeal should be dismissed.
Per Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Bastarache and Binnie JJ.: The Charter guarantee against unreasonable search and seizure (s. 8 ) is engaged because schools constitute part of government.
The mere fact that there was cooperation between the vice-principal and the police and that a police officer was present during the search was not sufficient to suggest that the vice-principal was acting as an agent of the police. The search would have taken place without the presence of the police officer and was not materially different than it would have been had there been no police involvement.
To establish a violation of s. 8 of the Charter , the accused must first establish a reasonable expectation of privacy with respect to the relevant place. Given that the search was of the accused’s person, the existence of a subjective expectation of privacy and the objective reasonableness of that expectation are important. A subjective expectation of privacy with respect to one’s person has been historically recognized and is reasonable and is not rendered unreasonable merely by the student’s presence at school. A reasonable expectation of privacy, however, may be diminished in some circumstances. It is lower for a student attending school than it would be in other circumstances because students know that teachers and school authorities are responsible for providing a safe school environment and maintaining order and discipline in the school. Students know that this may sometimes require searches of students and their personal effects and the seizure of prohibited items.
A different standard should be applied to searches by school authorities. Teachers and principals are placed in a position of trust that carries the onerous responsibilities of teaching and of caring for the children’s safety and well-being. In order to teach, school officials must provide an atmosphere that encourages learning. The possession of illicit drugs and dangerous weapons at school challenges the ability of school officials to fulfill their responsibility. Current conditions require that teachers and school administrators be provided with the flexibility needed to deal with discipline problems in schools and to be able to act quickly and effectively. One of the ways in which school authorities may be required to react reasonably is by conducting searches of students and seizing prohibited items. Where the criminal law is involved, evidence found by a teacher or principal should not be excluded because the search would have been unreasonable if conducted by the police.
Under the general rule established by this Court, a search to be reasonable requires prior authorization (usually a warrant) and reasonable and probable grounds for the search. A search conducted without prior authorization is prima facie unreasonable. To require that a warrant or any other prior authorization be obtained for the search would clearly be impractical and unworkable in the school environment. Teachers and principals must be able to react quickly and effectively to problems that arise in school, to protect their students and to provide the orderly atmosphere required for learning. Their role is such that they must have the power to search. Further, students’ expectation of privacy will be lessened while they attend school or a school function. This reduced expectation of privacy coupled with the need to protect students and provide a positive atmosphere for learning clearly indicate that a more lenient and flexible approach should be taken to searches conducted by teachers and principals than would apply to searches conducted by the police.
A search by school officials of a student under their authority need not be based upon reasonable and probable grounds. Rather, in these circumstances, a search may be undertaken if there are reasonable grounds to believe that a school rule has been or is being violated, and that evidence of the violation will be found in the location or on the person of the student searched. Searches undertaken in situations where the health and safety of students is involved may well require different considerations. All the circumstances surrounding a search must be taken into account in determining if the search is reasonable.
A teacher or principal should not be required to obtain a warrant to search a student and thus the absence of a warrant in these circumstances will not create a presumption that the search was unreasonable. A search of a student will be properly instituted in those circumstances where the teacher or principal conducting the search has reasonable grounds to believe that a school rule has been violated and the evidence of the breach will be found on the student. These grounds may well be provided by information received from just one student that the school authority considers credible. Alternatively the reasonable grounds may be based upon information from more than one student or from observations of teachers or principals, or from a combination of these pieces of information which considered together the relevant authority believes to be credible. The approach to be taken in considering searches by teachers may be summarized in this manner:
(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.
The search conducted by school authorities must be reasonable, authorized by statute, and appropriate in light of the circumstances presented and the nature of the suspected breach of school regulations. The permissible extent of the search will vary with the gravity of the infraction that is suspected. The reasonableness of a search by teachers or principals in response to information received must be reviewed and considered in the context of all the circumstances presented including their responsibility for students’ safety. The circumstances to be considered should also include the age and gender of the student.
The factors to be considered in determining whether a search conducted by a teacher or principal in the school environment was reasonable can be summarized in this manner:
1. The first step is to determine whether it can be inferred from the provisions of the relevant Education Act 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.
2. The search itself must be carried out in a reasonable manner. It should be conducted in a sensitive manner and be minimally intrusive.
3. In order to determine whether a search was reasonable, all the surrounding circumstances will have to be considered.
This modified standard for reasonable searches should apply to searches of students on school property conducted by teachers or school officials within the scope of their responsibility and authority to maintain order, discipline and safety within the school. This standard will not apply to any actions taken which are beyond the scope of the authority of teachers or principals. Further, a different situation arises if the school authorities are acting as agents of the police where the normal standards will apply.
In the case at bar, the vice-principal was not acting as an agent of the police and the police officer himself did not carry out the search. The mere presence of the police officer was not sufficient to conclude that the officer was in fact the authority carrying out the search. The officer was at all times completely passive. The test applicable to searches conducted by teachers therefore applied. The search was by inference authorized by the provisions of the Nova Scotia Education Act. As a student the accused would have a reduced expectation of privacy. The vice-principal had reasonable grounds to believe that the accused was in breach of school regulations and that a search would reveal evidence of that breach. The search was conducted in a reasonable and sensitive manner. Taking into account all the circumstances, the search was not unreasonable and did not violate the accused’s s. 8 rights.
This case dealt only with a search of students in an elementary or secondary school. No consideration has been given to searches made in a college or university setting.
The compelled attendance of a student at a principal’s office or some other form of restraint by a school authority, even if it could be understood as falling within the strict terms of the definition of “detention”, should not be considered as “detention” for the purposes of s. 10 (b). This section was meant to apply to relations between individuals and the state, usually focused upon the investigation of a criminal offence, and not to relations between students and teachers. Its application in the school context is inappropriate and would lead to absurd results.
Per Major J. (dissenting): The actions of school officials as an extension of government are subject to the Charter . A student on school property has an expectation of privacy sufficient to engage s. 8 but that expectation is and should be lower than a member of the general public.
A warrantless search is prima facie unreasonable. To prove reasonableness, the Crown must demonstrate that the search was authorized by a reasonable law and carried out in a reasonable manner. A warrantless search can be justified if: (1) the information predicting the crime was compelling; (2) the source was credible; and (3) the information was corroborated. These factors should not be applied as strictly to searches conducted by school officials acting qua school officials.
Here, the vice‑principal, because of the school policy requiring the school authorities to contact the police when a student was found in possession of drugs, was acting as a de facto agent of the police. The search as conducted therefore required that the accused be given his Charter protections. Further, the circumstances of the search breached s. 8 as they failed to meet the standards necessary for a valid search. The vice‑principal, as a police agent, did not investigate to corroborate the information that he received; he acted solely on the word of the informants. Had the vice-principal been acting as vice‑principal, he could have lawfully conducted the search because of the modified standard of reasonableness governing searches by school officials.
In determining whether evidence obtained in breach of the Charter should be admitted under s. 24(2) of the Charter , trial fairness, the seriousness of the breach and the effect that excluding the evidence would have on the repute of the administration of justice must be considered. Given that the accused was detained by the vice‑principal and felt that he had to comply with the requests of the vice‑principal and police officer, the evidence was conscriptive. Its admission would adversely affect trial fairness and accordingly it should be excluded under s. 24(2) of the Charter .
Cases Cited
By Cory J.
Applied: R. v. Broyles, [1991] 3 S.C.R. 595; considered: R. v. J.M.G. (1986), 56 O.R. (2d) 705; New Jersey v. T.L.O., 469 U.S. 325 (1985), aff’g 94 N.J. 331 (1983); Hunter v. Southam Inc., [1984] 2 S.C.R. 145; referred to: R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Simmons, [1988] 2 S.C.R. 495; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; R. v. Edwards, [1996] 1 S.C.R. 128; Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841; R. v. Colarusso, [1994] 1 S.C.R. 20; R. v. Wong, [1990] 3 S.C.R. 36; Zamora v. Pomeroy, 639 F.2d 662 (1981); People v. Overton, 301 N.Y.S.2d 479 (1969); State in Interest of T.L.O. v. Engerud, 94 N.J. 331 (1983), aff’d 469 U.S. 325 (1985); Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Bartle, [1994] 3 S.C.R. 173.
By Major J. (dissenting)
R. v. Broyles, [1991] 3 S.C.R. 595; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Belnavis, [1997] 3 S.C.R. 341; R. v. Evans, [1996] 1 S.C.R. 8.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8 , 10 (b), 24(2) , 32(1) .
Education Act, R.S.N.S. 1989, c. 136, s. 54(b), (g).
Education Act, General Regulations, N.S. Reg. 226/84, s. 3(7), (9).
Narcotic Control Act, R.S.C., 1985, c. N‑1, s. 11 [rep. 1996, c. 19, s. 94].
Authors Cited
Fischer, Thomas C. “From Tinker to TLO; Are Civil Rights for Students ‘Flunking’ in School?” (1993), 22 J. L. & Education 409.
Sanchez, J. M. “Expelling the Fourth Amendment from American Schools: Students’ Rights Six Years After T.L.O.” (1992), 21 J. L. & Education 381.
APPEAL from a judgment of the Nova Scotia Court of Appeal (1997), 159 N.S.R. (2d) 321, 7 C.R. (5th) 1, [1997] N.S.J. No. 144 (QL), allowing a Crown appeal from a judgment of Dyer J.F.C. Appeal dismissed, Major J. dissenting.
Mona Lynch and Cathy Benton, for the appellant.
Ivan G. Whitehall, Q.C., and Paula Taylor, for the respondent.
The judgment of Lamer C.J. and L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Bastarache and Binnie JJ. was delivered by
//Cory J.//
1 Cory J. -- Teachers and those in charge of our schools are entrusted with the care and education of our children. It is difficult to imagine a more important trust or duty. To ensure the safety of the students and to provide them with the orderly environment so necessary to encourage learning, reasonable rules of conduct must be in place and enforced at schools. Does the nature of the obligations and duties entrusted to schools justify searches of students? To what extent are students entitled to an expectation of privacy while they are on school premises? These questions must be considered in this appeal.
2 This case involves a search by a junior high school vice‑principal of a 13‑year‑old student. A small quantity of marijuana was found in the search and the student was charged with possession of a narcotic.
3 In order to decide whether the evidence found in the search should have been excluded at the appellant’s trial, it must be determined 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 question presents potentially conflicting values and principles. On one hand, it is essential that school authorities be able to react swiftly and effectively when faced with a situation that could unreasonably disrupt the school environment or jeopardize the safety of the students. Schools today are faced with extremely difficult problems which were unimaginable a generation ago. Dangerous weapons are appearing in schools with increasing frequency. There is as well the all too frequent presence at schools of illicit drugs. These weapons and drugs create problems that are grave and urgent. Yet schools also have a duty to foster the respect of their students for the constitutional rights of all members of society. Learning respect for those rights is essential to our democratic society and should be part of the education of all students. These values are best taught by example and may be undermined if the students’ rights are ignored by those in authority. How should the appropriate balance of these values be achieved?
I. Factual Background
4 The search at issue in this case was conducted by Mr. Cadue, the vice‑principal of a junior high school. Mr. Cadue was responsible for enforcing school policies, which included a policy that any student found in possession of drugs or alcohol on school property would be suspended. If the vice‑principal concluded that a criminal matter was involved, he was to call the RCMP.
5 Mr. Cadue testified that he had been told by several students that the appellant was selling drugs on school property. He said he had reason to believe this information because the students knew the appellant well and one of them had, on an earlier occasion, given him information which had proven to be correct. On this day, a school dance was to be held and Mr. Cadue was responsible for its supervision. Earlier in the day he had been told by one of the informants that he believed the appellant would be carrying drugs that evening.
6 When Mr. Cadue saw the appellant arrive at the dance, he called the RCMP to request that an officer attend at the school. He then approached the appellant 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, Constable Siepierski, then arrived, dressed in plain clothes. He spoke briefly with Mr. Cadue outside the room, then entered, identified himself to the two boys and sat down. He did not say anything while Mr. Cadue spoke to the students and searched them. The appellant turned out his pockets and at the request of Mr. Cadue, pulled up his pant legs. The vice‑principal noticed a bulge in the appellant’s sock and removed a cellophane bag. He gave the bag to Constable Siepierski who identified the contents as marijuana. The Constable then advised the appellant that he was under arrest for possession of a narcotic and read to him the police caution and his right to counsel. The Constable also advised him that he had the right to contact a parent or adult. The appellant attempted unsuccessfully to reach his mother by phone and stated that he did not wish to contact anyone else. Constable Siepierski and the appellant then went to the appellant’s locker and searched it but nothing was found there.
7 At trial, the judge concluded that the search had violated the appellant’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 appellant was dismissed. The Court of Appeal allowed the Crown’s appeal and ordered a new trial. Thereafter, leave to appeal to this Court was granted.
II. Relevant Statutory Provisions
8 Canadian Charter of Rights and Freedoms
8. Everyone has the right to be secure against unreasonable search or seizure.
10. Everyone has the right on arrest or detention
. . .
(b) to retain and instruct counsel without delay and to be informed of that right; . . .
24. . . .
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
Education Act, R.S.N.S. 1989, c. 136
54 It is the duty of a teacher in a public school to
. . .
(b) maintain proper order and discipline in the school or room in his charge and report to the principal or other person in charge of the school the conduct of any pupil who is persistently defiant or disobedient;
. . .
(g) give constant attention to the health and comfort of the pupils, to the cleanliness, temperature, and ventilation of the school rooms, and to the aesthetic condition of the rooms, grounds and buildings;
Education Act, General Regulations, N.S. Reg. 226/84
3 . . .
(7) A principal is responsible to the school board through the superintendent of schools and is responsible for:
(a) supervising and administering the educational program in the school as directed by the school board through the superintendent;
(b) implementing and co‑ordinating a curriculum;
(c) supervising and evaluating staff and programs;
(d) developing effective communication with parents.
. . .
(9) A vice‑principal is responsible for:
(a) assisting the principal in carrying out his duties as directed by the school board or the principal;
(b) assuming the duties of the principal in his absence.
III. Judicial History
A. Halifax Family Court
9 Dyer J.F.C. held that the appellant’s rights under ss. 8 and 10 (b) of the Charter had been violated and that the evidence should be excluded pursuant to s. 24(2) .
10 He found that the actions of the vice‑principal were aimed at potential arrest and criminal charges, not merely administrative sanctions. He found that there was an agreed strategy between Mr. Cadue and Constable Siepierski that Cadue would conduct the search with a view to the officer’s laying a possession charge if the search was productive. At the time of the search, a criminal investigation “was in full flight”. Dyer J.F.C. found that Mr. Cadue became an agent of the police. Although he may have been initially acting within his administrative powers, “a different state of affairs exists when a conscious decision is taken, not just to invoke in‑house remedies, but to apply the full force of the criminal law including actual police attendance and to lay formal charges if a search is fruitful”.
11 As a result, Dyer J.F.C. distinguished this case from R. v. J.M.G. (1986), 56 O.R. (2d) 705, in which a school principal had acted without police assistance or intervention. There the search had been found to be justified, but Dyer J.F.C. here found that a different standard of conduct was imposed by the fact of actual police intervention before the search.
12 He found that the appellant was detained in law, if not at the time of the initial intervention by Mr. Cadue, at least upon police intervention before the search commenced. He disagreed with the court in J.M.G. that students are already under a detention of a kind throughout their school attendance and this overrides traditional concepts of detention for Charter purposes. In any case, he would not hold that police officers, when they intervene, should only be held to the lower standard of school officials. The appellant would have had the right to be informed of the right to retain and instruct counsel in any other situation. This requirement should not be ignored merely because of the school setting.
13 He noted that it was conceded that the search was warrantless and therefore was prima facie unreasonable. He found that the search of the appellant’s person was intrusive, going to personal integrity and privacy. In his view, the appellant did not give up his rights to privacy and other legal rights by virtue of his school enrolment.
14 Dyer J.F.C. held that the evidence should be excluded under s. 24(2) of the Charter . He noted that the jurisprudence suggested that real evidence will generally be admissible. He thought that this case could be distinguished from the “major drug cases” and did not accept the argument that the drug cases support a presumption of admissibility. He concluded that there were several Charter violations, despite ample opportunity for compliance, and that the violations were more than trifling. It was his opinion that the exclusion of the evidence would not bring the administration of justice into disrepute. Therefore, he was satisfied that exclusion was the appropriate remedy.
B. Nova Scotia Court of Appeal (1997), 159 N.S.R. (2d) 321
15 Pugsley J.A., with whom Chipman and Roscoe JJ.A. concurred, stated at para. 25 that “[c]ogent arguments could be made” that Cadue was exercising a government function as an educational state agent, and that the Charter restricted the scope of Cadue’s actions taken pursuant to the Education Act. However, since no evidence or submissions had been directed to the issue of the application of the Charter , Pugsley J.A. considered it to be inappropriate to come to a conclusion on this issue, and assumed, for the purposes of the appeal, that the Charter did apply.
16 Pugsley J.A. noted that the rights in s. 8 applied to cases where persons had a reasonable expectation of privacy, and this expectation depends on the context. He stated that the rights of young students must be interpreted in light of the important function of education in society and society’s interest in ensuring that children attend a safe educational environment. This safe environment can only be maintained if school officials and staff have the authority to ensure proper order and discipline, including protection from those trafficking in drugs. The principal and staff do not have express authority under the Education Act for search and seizure, but do have the statutory responsibility for maintaining proper order and discipline, attending to the health and comfort of students, and supervising and administering the educational program of the school.
17 Similar provisions in the Ontario Education Act were noted in J.M.G., supra, in determining the reasonableness of a search by a school principal. There, the Ontario Court of Appeal approved the lower standard applicable in a school setting set out by the U.S. Supreme Court in New Jersey v. T.L.O., 469 U.S. 325 (1985). This standard requires two criteria to be met: first, that the action was “justified at its inception” and second, that the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.
18 Pugsley J.A. agreed with the Ontario Court of Appeal’s reliance on the U.S. Supreme Court decision in this context. He found that the evidence in this case meets both criteria of the T.L.O. test. Cadue had received reliable information which required appropriate action, and the search was “reasonably related in scope” because it was conducted in private and was not overly intrusive. Pugsley J.A. thought that the trial judge had erred in failing to consider the factors that prompted Cadue to question and search the appellant. According to R. v. Debot, [1989] 2 S.C.R. 1140, a Court should consider whether the information predicting the criminal offence was compelling, whether the source was credible, and whether the information was corroborated by police investigation prior to the search.
19 Pugsley J.A. found that the first two factors were satisfied here and the third factor was not an essential prerequisite in a school setting. The consideration of the totality of circumstances should involve a consideration of the reasonable expectation of privacy “enjoyed by junior high students in the face of the societal interest of maintaining a safe environment in schools” (p. 331). Pugsley J.A. noted that this Court has recognized that persons should expect a lesser degree of privacy when they pass through border controls (R. v. Simmons, [1988] 2 S.C.R. 495) and in the context of regulatory matters (British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3).
20 Pugsley J.A. noted that the search here was only of the exterior of the appellant’s person, not a highly invasive search such as a strip and body cavity search. He thought the age and sex of the student might also be relevant, and here the search was not conducted by a male teacher on a young female student. Taking into account all the factors, he found that the search was reasonable and the appellant’s reasonable expectation of privacy in a school setting was not infringed.
21 The trial judge’s finding that the vice‑principal was acting as an agent for the police was examined and rejected. Mere police presence, without a pre‑arranged plan or instruction by the police, was insufficient to make Mr. Cadue an agent of the police. In his opinion, it was clear from the evidence that the request to attend Cadue’s office, the questioning and search, would have occurred in any event if Constable Siepierski had not been present. Therefore the only remaining issue under s. 8 was whether the subsequent seizure of the evidence by Constable Siepierski caused the initial search and seizure to become unreasonable. He found that even if there was a seizure by the police officer, it had been lawful and therefore concluded that the appellant’s rights under s. 8 had not been infringed.
22 With respect to s. 10 of the Charter , Pugsley J.A. first considered whether the appellant was detained by Cadue within the meaning of s. 10 . He again noted that the extent of the appellant’s right to counsel was defined by the context in which that right was asserted, namely as a student in a junior high school. He followed, at p. 338, the analysis of the Ontario Court of Appeal in J.M.G. (at pp. 711‑12) that a student is already “under detention of a kind throughout his school attendance” and the actions taken were merely part of maintaining order and discipline in the school, and concluded that there was no detention by the vice‑principal.
23 The second question was whether the appellant was detained by Constable Siepierski. Pugsley J.A. found, at p. 339, that it “was not until Cst. Siepierski determined the nature of the contents of the plastic bag that a detention occurred”, and this detention was immediately followed by giving the appellant his s. 10 (b) rights. Alternatively, he found that even if the trial judge was correct that there was a detention and violation of the right to counsel, this violation did not affect the reasonableness of the search. This was not a case where the advice of counsel would have had any effect on the discovery of the evidence.
IV. Analysis
A. Application of the Charter
(1) Application of the Charter to Public School Authorities
24 At the outset it must be determined whether the Charter applies to the actions of the vice‑principal. The courts below assumed that it does, as have other courts in similar circumstances (e.g., J.M.G., supra). The respondent in this appeal did not dispute that the Charter should apply, arguing only that the Charter analysis should take into account the school context. The appellant submitted that the Charter applies because the school board, schools and their employees are part of the apparatus of government, according to the test set out by this Court in McKinney v. University of Guelph, [1990] 3 S.C.R. 229. It was suggested that schools and schools boards are analogous to the community college which was found to be part of government in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570. The alternative submission was that because the actions of the vice‑principal were taken under the authority of the Education Act, R.S.N.S. 1989, c. 136, the Charter applies, following Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624.
25 In light of the concession made by the respondent it would be inappropriate to discuss and determine finally which of the alternative submissions should be applied. Rather it would be best to assume simply, for the purposes of this case, that schools constitute part of government and as a result the Charter applies to the actions of the vice‑principal.
(2) Was the Vice‑Principal Acting as an Agent of the Police?
26 The trial judge in this case also found that the vice‑principal was acting as an agent of the police. This finding, if accepted, would not only provide an alternative basis for the application of the Charter but would also affect the analysis of the alleged violations. The appellant submits that the finding of the trial judge on this issue should not be disturbed. Generally, a finding such as this would not be interfered with by an appellate court. However, in this case, the evidence adduced cannot support that finding and it should not be accepted.
27 It is clear that Mr. Cadue cooperated with the police. He was aware that if drugs were found it would be a criminal matter as well as a matter of school discipline, and that it was the policy of the school to contact the police in such a case. He called the police before beginning the search and permitted an officer to observe as he conducted the search. When the marijuana was found, it was handed over to Constable Siepierski, who arrested the appellant and conducted a further search of the appellant’s locker.
28 The mere fact that there was cooperation between the vice‑principal and the police and that an officer was present during the search is not sufficient to indicate that the vice‑principal was acting as an agent of the police. The trial judge stated that there was an “agreed strategy” between Mr. Cadue and Constable Siepierski that resulted in Mr. Cadue’s acting as a police agent. With respect, there is no evidence to support this conclusion. There is no evidence of an agreement or of police instructions to Mr. Cadue that could create an agency relationship.
29 The issue as to whether an individual is acting as an agent of the police was considered by this Court in R. v. Broyles, [1991] 3 S.C.R. 595. While that case involved a police informer, the essential elements of the test applied in that case are equally applicable to the case at bar. There it was said at p. 608:
Only if the relationship between the informer and the state is such that the exchange between the informer and the accused is materially different from what it would have been had there been no such relationship should the informer be considered a state agent for the purposes of the exchange. . . . [W]ould the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?
Applying the test to this case, it must be determined whether the search of the appellant would have taken place, in the form and in the manner in which it did, but for the involvement of the police. The evidence, in my opinion, demonstrates that it would have taken place and was not materially different than it would have been if there had been no police involvement. Although Mr. Cadue knew that criminal charges might result, the primary motive for the search was the enforcement of school discipline, for which he was responsible. There is nothing in the evidence to suggest that the vice‑principal initiated the search or conducted it differently because of police intervention. It is thus apparent that the vice‑principal was not acting as an agent of the police.
30 This conclusion is not determinative with respect to the application of s. 8 since the Charter applies, in any event, to the actions taken by Mr. Cadue. However, the finding that he was not an agent of the police will affect the analysis of the alleged violation of the appellant’s Charter rights.
B. Were the Rights of the Appellant Under Section 8 of the Charter Violated?
(1) Reasonable Expectation of Privacy
31 Did the appellant have, in the circumstances presented, a reasonable expectation of privacy, and if he did, what was the extent of that expectation? The appellant must first establish that in the circumstances he did have a reasonable expectation of privacy. This is apparent because if there is no reasonable expectation of privacy held by an accused with respect to th