11/15/2017 17:08 EST | Updated 11/15/2017 17:11 EST

Schools Don't Need Cellphone Search Policies. They Already Have The Charter

Why is the right to be free from search and seizure so difficult to understand?


Should schools have the power to search cellphones? A trustee of the Winnipeg School Division thinks maybe they should. If the trustee's motion were to pass, the school board would have a policy on cellphone search and seizure.

Why doesn't every other school board in Canada have such guidelines? Well, largely because they rely upon the Canadian Charter of Rights and Freedoms. They understand that Section 8 of the Charter says that "everyone has the right to be secure against unreasonable search or seizure." Everyone includes everyone, not just people over 18, not just citizens of Canada, not just popular people — EVERYONE. The Charter protects us against encroachment on our rights by government — and public schools are government.

Why is the right to be free from search and seizure so difficult to understand? If schools want the right to search a student or staff member's phone, they need the search to be "reasonable." If they want to search a student's underwear, they also need that to be reasonable. My guess is that such a search in a school would be reasonable... just about NEVER.

What is in a cellphone? I asked my grandchildren what is in their cellphones and they assure me that cellphones now contain a person's whole life. This may even include selfies of them in their underwear, as well as private diary writings, Google searches, text messages, email and other instant messenger exchanges, Facebook postings, and many other lawful but personal and private items.

There must be reasonable suspicion of an individual before a search can take place.

Which is to say that the answer to the frequently asked question, "If you have nothing to hide, what are you worried about?" is that everyone, including people who have a cellphone, has the right to privacy. And, what does it mean to have nothing to hide? It depends who is asking to look.

I tried an experiment a few years ago. I was with a group of teachers one afternoon. I asked them if anyone had a photo of a child or other family member they would like to show to the group. Many had photos on their phones of their children, grandchildren, spouses, and pets that they were very happy to show everyone in the room. Then I told them to imagine that I was a school authority or a police officer and I was demanding to see the same photos. Would they feel differently about sharing the pictures? All the phones were quickly put away. They all asked the same question: "Why do you want to see the photos?"

In other words, the teachers wanted to know the REASON for the demand. Was it a "reasonable search?" And what constitutes a reasonable search, anyway? Primarily, the search must have a purpose. It is unlawful to go on a fishing expedition on the assumption that because a cellphone belongs to a teenager, or a teacher, or is locked, it must contain something unlawful. There must be reasonable suspicion of an individual before a search can take place. Speculation about a group, such as students, is not reasonable.

Search and seizure is a matter for police and the courts

In a case that went to the Supreme Court of Canada, R. v. A.M., the court determined that a student's backpack should be safe from unreasonable searches because its contents are highly personal. The owner of the backpack has a reasonable expectation of privacy, even in school. Students do not relinquish their rights and freedoms at the school door.

If in fact, a school authority were to believe that a student or staff member is using a cellphone for an unlawful purpose, or that the phone contains evidence of a crime, what should they do? I think the answer is fairly clear: Call the police.

Should the police then be able to search that phone? Unless there is imminent peril involved, they will need a warrant. How do the police get a search warrant? They will need to go to a justice of the peace or a judge and show that there is a good reason to execute a search. And mere curiosity is not a good reason.

Can we stop treating school-aged children and teens as if they were always all under suspicion — and not rights-holders? We don't need new laws or regulations to respect their privacy. We simply need to understand that Charter rights are there to protect EVERYONE.

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