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Regulation of student conduct: Working with the criminal justice system, a civil libertarian perspective

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Introduction

The B.C. Civil Liberties Association has been working to protect the civil liberties of British Columbians since 1963. As part of our work, we provide assistance to individuals who believe that they have had some important right or liberty infringed. In the context of the issues relevant to this paper, the Association provides assistance to students or their parents who are concerned about civil liberties in the schools, whether it involves freedom of expression, individual privacy or other issues. The Association believes schools have an important responsibility to teach civil liberties values to students, values that are central to our democratic society. In addition, school administrators have a role not only to educate but to lead by example—by treating students fairly when their conduct causes concern to school staff and students.

Three situations will be examined in this paper: police questioning of students, searches and information sharing with the police. We offer our perspectives to stimulate discussion and debate. We will attempt to highlight the civil liberties principles involved in each situation together with relevant points of law. We caution, however, that this is not a comprehensive or exhaustive legal analysis. Persons who seek full legal advice should consult a lawyer for that purpose.

Police questioning students on school premises

Civil liberty principles

There is a presumed vulnerability of a student vis-a-vis police in terms of power imbalance. That is why youth enjoy even more rights than adults when dealing with the police. These rights are enshrined in section 56 of the Young Offenders Act, R.S.C. 1985, c. Y-1.

There is a significant negative stigma associated with students who have dealings with the police. School officials should attempt to minimize peer knowledge about a particular student’s contact with the police.

With respect to a school’s responsibilities in loco parentis, school staff have a positive duty to act in the student’s best interests. We suggest that this means that school staff have a responsibility to protect students and, in some cases, advocate on their behalf. This duty may conflict with other school administrative duties, such as ensuring a safe environment for students and staff. Even where school officials have reason to believe that a student may threaten school safety, they continue to have a responsibility to act in the student’s best interests—this duty is not simply suspended if other duties arise and conflict with it.

Most police interviews of youth involve a detention, even if students give ostensible consent. We say this because, though students do have a right to refuse to speak to police, most will feel that they have little or no choice. The police of course have legal obligations under the Canadian Charter of Rights and Freedoms and the Young Offenders Act to give extensive warnings and opportunities to consult with legal counsel and a parent and an opportunity for these persons to be present if the student makes a statement to the police.

Scenarios

A student is involved in alleged criminal activity (rather than conduct that allegedly breaches school rules only). Once can imagine two scenarios:

(a) a principal or school administrator reports the incident to the police, and requests that the police interview the student as a suspect in a crime or a material witness; and

(b) the police request to interview the student where the student is a suspect or material witness.

In either scenario, the BCCLA believes that school administrators have an ethical obligation to notify the student’s parents or guardians of the impending interview. As well, we recommend that school officials encourage the police to, if possible, question the student at home or off school premises. If this is not possible, in scenario (a), we suggest that the school administration should make its best efforts to give the parents a chance to be present before arranging for the police to interview the student. In scenario (b), there may be less flexibility, yet the school administration should still act diligently to try to get parents to a police interview.

School officials may be reluctant to interfere with a police request to interview a student for fear of obstructing justice, an offence under the Criminal Code (section 139). However, we caution that school authorities do not use this fear as blanket reason to comply with the police’s request to interview a student, especially where the police refuse to give school officials the time to contact the student’s parents. School authorities should obtain legal advice regarding their obligations regarding police requests, to students and their parents to act in the student’s best interests and as persons responsible for the operation of the school and activities on school premises.

The BCCLA suggests that schools consider creating a position for a student advocate. This person would receive special training regarding the law and would be responsible for attending police interviews of students in order to give them practical information. This person would not be a representative of the student, but rather someone who could make sure that the police are treating them fairly if parents are unable to attend or cannot be contacted. We make this suggestion because we perceive that principals and senior administrators are in a difficult position when dealing with alleged misconduct. How can they both act in students’ interests yet uphold their responsibility to enforce school rules and to make the school a safe place? Designating a separate staff member to act in the student’s interest avoids this conflict.

Searches on school premises

Civil liberty principles

Any search of students’ persons or property is a prima facie violation of their privacy. Whether it is legally justified depends on the circumstances.

Students have a reasonable expectation of privacy in their lockers even if the locker is technically school property. Schools should not undermine this privacy by declaring that students will have no privacy in their locker and therefore be subject to search at any time for any reason.

Searches that involve allegations of criminal conduct are more serious than searches involving allegations of transgression of school rules. More due process is required for the former than for the latter.

Similarly, the more intrusive a search, the greater the justification that is needed for undertaking the search, both in terms of the need for objective evidence for initiating the search and in terms of the seriousness of the suspected infraction. For example, a search of a locker requires less justification than the search of a handbag which in turns requires less justification than the search of a person. To justify conducting a more intrusive search, one needs more objective evidence for suspicion, and the alleged infraction must be more serious.

Legal standards and jurisprudence

School officials may justify their search of a student’s person or property if (a) the action was justified at its inception and (b) if the search was reasonably related in scope to the circumstances which justified the interference in the first place. See the case of R v. J.M.G., (1986) 33 D.L.R. (4th) 27 which is included in the appendix. I note that this case was decided before important jurisprudence on the section 8 Charter right by the Supreme Court of Canada. Though this case remains a the leading case on point, in my view, the reasoning of the court is open to question.

This case reflects the American position that school officials need only justify their search if it is “reasonable in the circumstances”. This standard is lower than the standard applicable to a search by police, which can only be justified if there are “reasonable and probable” grounds to suspect a crime. There is extensive jurisprudence that better defines the Charter right to be secure from unreasonable search and seizure.

The B.C. Civil Liberties Association prefers the approach advocated by the B.C. provincial court in R. v. J.R.G., Youth Court, Coquitlam, No. 1731, June 25, 1991, a précis of which is included in the appendix. In this case, school officials received third hand information that a student possessed marijuana on school grounds. School officials questioned the student, who handed over the marijuana. The police were then called. While the court found that there was no search, the student had been detained without appropriate notification about retaining legal counsel. Most importantly, the court recommended that school officials should handle such incidents in one of two ways. Either they treat the misconduct as a purely internal, school discipline matter, or they treat it as a criminal matter and contact the police to search and question the student. This would not preclude the school from subsequently taking disciplinary action against the student in relation to an alleged breach of school rules.

We again caution that this should not be construed as an exhaustive legal review of the issues. Rather, we use it to highlight two judicial approaches to the issue of searches.

In sum, we suggest that school officials should make a choice before searching a student or his property. If they anticipate pursuing the infraction through the criminal justice system because the conduct involves a Criminal Code offence, then the police should be called to handle the search and questioning, subject to our suggestions above about contacting parents. We note that increasingly, diversion or alternative measures are being used to guide youth (and adults) away from the criminal justice system because of its negative consequences (i.e., furthering criminal conduct rather than preventing it). We endorse this approach and suggest that school officials give serious consideration before involving the police.

If school officials decide to treat an incident of student misconduct as an internal matter only, they must still act prudently when conducting searches. They remain under an obligation to follow the principle that the search be “rationally connected” to the reasons that justified it in the first place and that its intrusiveness be consistent with the gravity of the alleged infraction and the objectivity of the evidence that initiated the concern. For example, school officials would not likely be justified in physically searching students to determine if they posses cigarettes on the basis of a rumour overheard in the hallway.

We recognize that school officials may conduct a search with the expectation that they will handle the matter internally, then discover much more serious evidence of criminal activity. In such cases, it would then be legitimate to refer the matter to the police.

Police requests for access to student records

Civil liberty principles

Privacy is an extremely important value in our society. We need to protect it diligently. An important principle of privacy is that personal information collected for one purpose by a public body (i.e. government agency) should not, as a general rule, be used or disclosed to other public bodies for a different purpose. This practice undermines the integrity of this information and evidently undermines personal privacy.

Students who either have had difficulty in school or previous interaction with the police are at risk to continue such behaviour. The school’s role is to endeavour to steer students away from that behaviour and equip them with an understanding of the values that are important in a democratic society and the knowledge and skills necessary to function successfully in our world. School programs designed to assist students at risk would be in jeopardy if the school shared highly private information with law enforcement agencies at the mere request of the police. Students working with counsellors would not likely be as cooperative if this information were disclosed.

The role of schools is to educate. The role of the police is to enforce our laws. Though school administrators have an important responsibility to ensure safety in the school environment, they must remember their role is education, not law enforcement.

Police do not have a legal right to a student’s personal information unless they have a warrant or court order to gain access to it. On the other hand, school administrators have a legal duty to ensure the confidentiality and privacy of student records.

The following discussion involves legislation in British Columbia. However, it is likely that other jurisdictions have similar legislative provisions and therefore the law in B.C. shall be used to discuss basic principles.

British Columbia’s School Act

Section 97 of the School Act, S.B.C. 1989 c. 61, as amended is included in the appendix. It requires that school boards ensure the confidentiality of information contained in student records and privacy for students and their families. Under this section, school boards are required to establish procedures and policies for the storage, retrieval and appropriate use of student records. It also requires disclosure of student records on orders of the minister for health, social or other support services. This likely may include sharing information with certain justice officials such as probation officers for purposes such as diversion from court hearings. We would agree with a release for this purpose since it promotes the alternatives to formal court hearings and steers a young person away from the criminal justice system. Nevertheless, school officials need to scrutinize very carefully requests for information to ensure that they are legitimate, comply with the law and do not breach students’ privacy or confidentiality of student information.

British Columbia’s Freedom of Information and Protection of Privacy Act (FIPPA)

Section 33(n) of the Freedom of Information and Protection of Privacy Act, S.B.C. 1992 c. 61, as amended, permits a public body (a school board) to release personal information (student records) to another public body or law enforcement agency to assist in an investigation (a) undertaken with a view to a law enforcement proceeding, or (b) from which a law enforcement proceeding is likely to result.

The government’s policy and proceedings manual (excerpted in the Appendix) advises that public bodies should carefully evaluate any request for information from the police. The manual further advises that public bodies should not provide information based on police “suspicion, surmise or guesses”. It recommends that the public bodies require the following information from the police:

  • the name of the individual whose information is requested
  • the exact nature of the information requested
  • the authority for the investigation
  • the purpose for which the information is sought and
  • the particulars of the person making the request.


In our view, the manual’s requirements are too weak to adequately protect privacy, since it is relatively easy for a police department to satisfy the requirements. We also note that this exemption in the Act is discretionary. In other words, the public body need not release the information in any case (save for a legal order to do so).

Public bodies should not provide personal information to the police unless the police have a warrant or court order for such information. The only exception for this rule is if the delay in obtaining the warrant or court order would fundamentally jeopardize an important investigation, or if there are exceptional and compelling circumstances to release the information. The onus should be on the police to show that such a delay would jeopardize the investigation, or to show that exceptional circumstances exist. We note that there is no concern regarding the potential loss of evidence. The student records remain protected and accessible if a warrant or court order requires disclosure.

What is the relationship between the School Act and FIPPA?

FIPPA likely takes precedence over the School Act. However, FIPPA’s provisions are discretionary. Therefore, one might argue that the School Act‘s requirement that school boards ensure student record confidentiality and privacy should guide school boards to exercise discretionary power in a very conservative manner. That is, school boards should not release student information without a legal requirement or in any but exceptional circumstances.

Examples of public body policies

As of January 1995, the Vancouver School Board policy states: “A student’s records may not be divulged to others without the written permission of the parent or legal representative of the student, or of the student himself/herself if he/she is an adult, except where the permission has been explicitly granted by a motion of the Board or where release of the record is required by statutory declaration or by court order.” This policy was last amended in 1990. This policy is being further amended to comply with FIPPA.

This policy makes sense to the degree that it permits disclosure only where there is a legal requirement to do so. With respect to the policy’s provision for disclosure if school board members vote to approve release, we suggest that this is not necessary since the school board’s consideration of the request would in almost all cases take more time than for the police to request and obtain a warrant. If the police cannot obtain a warrant, we suggest that the school board should not release the information.

The B.C. Health Association guidelines for its health care facility members states that there should be no disclosure of personal information to the police without sufficient legal authorization including informed patient consent, search warrant or court order unless exceptional, compelling circumstances exist. The guidelines recommend that each facility have a policy to clarify procedures if the police make a request for personal information.

Finally, we recommend that each school board develop a clear policy that only senior school administrators be authorized to consider a request for personal information from the police. These administrators need to be trained to be familiar with the law and their own policies. This would avoid confusion when the police make a request to someone who is unfamiliar with the law and policy and who may mistakenly believe that the police have a right to the personal information.

Conclusion

In a time when concern about safety in our schools is growing, our society needs to react in a way that continues to balance the civil liberties of students and their families with the responsibilities of school administrators and the police to make school communities safe. We hope that this paper provides relevant information and analysis to spark further discussion among school administrators, their legal counsel, the police, students and their families