Case Study B:
Her Majesty The Queen
J.M.G. is a fourteen year old Grade 7 student. On the morning
of April 13, shortly after school opened, the principal received information
from one of his teachers that J.M.G. had been seen outside the school by
another student placing drugs in his socks. The principal telephoned
a policeman and a secondary school principal whom he knew for advice on
how to handle the situation. He than attended the J.M.G.'s class
and requested that he come with him to his temporary office. There,
in the presence of the vice-principal, the principal informed J.M.G. that
he had reason to suspect that he was in possession of drugs and asked hii-n
to remove his shoes and socks. There was some delay during which
J,.M.G. actually swallowed a rolled cigarette that he had taken out of
his pant cuff. The principal then took some thin foil from the accused's
richt sock and pant leg.
This foil contained three butts of 3/4 of an inch in length then perhaps 1/4 of an inch diameter. The principal proceeded to leave the room to telephone the same policeman whom he had called earlier leaving the accused in the charge of the vice-principal and another teacher. The policeman appeared shortly thereafter and arrested the accused on the charge of possession of a narcotic, giving him the usual caution and informing him of his Charter rights. The butts in a thin foil proved to be marijuana.
The Defendant was brought to trial and convicted. He subsequently appealed arguing that his rights guaranteed under Section 8 and IO b) of the Canadian Charter of Rights had been breached. These sections read as follows:
8. Everyone has the right to be secure against unreasonable searcher
10. Everyone has the right on arrest or detention
(b) to retain an instruct counsel without delay and to be informed of that light.,,
Issue to be decided
1- Is the principal of a public school bound by the Canadian Charter of Rights which binds the Parliament and government of Canada and the legislatures and government of each province and territory?
2- Did the principal's actions constitute unreasonable search and seizure?
3- Was J.M.G.'s right to counsel violated?
The Court held that it was prepared to assume for purposes of the appeal that the Public School System constituted an extension of government. Principals act under the authority of the government and are therefore, in those actions, subject to the Charter.
The Court when on to hold, after referring to U.S. authorities as well as the Ontario Education Act, that the principal bore a duty to maintain proper order and discipline in the school, that in light of this duty it was not unreasonable that J.M.G. should be required to remove his socks in order to prove or disprove the allegation that he was carrying drugs. The Court held that the search was reasonably related to those objective of maintaining proper order and discipline and that the search was not excessively intrusive. The Court went on to hold that the principal, in order to exercise his discretion to whether he should advise the J.M.G.'s parents as well as the police, had to have more information with regard to the nature and extent of the offence.
The principal's actions were therefore in appearance reasonable. The Court held that society has compelling interest in maintaining efficient and effective school discipline and that it was neither feasible nor desirable that the principal should require prior authorization before searching a student and seizing contraband.
The Court found much more difficult the issue of the alleged breach
of Section 10 b) - tile right to counsel. This section is mandatory
and if J.M.G. was in fact detained than there was noncompliance.
The Court held that J.M.G. was not detained within the i-neaning of Section
10 b). He was already in detention of a kind by his school attendance.
He was subject to discipline of the school and required by the nature of
his attendance to undergo any reasonable disciplinary or investigative
procedure. The search was just in extension of normal discipline.
The distinction here however was the significant legal consequences which
flowed from the principal's actions. The Court found that in certain
circumstances the principal might become an agent of the police in detecting