Rules for Schools: The Legality of Strip Searches

There has been a good deal of interest lately in the legal basis for schools to search students. There is also a good deal of discussion about what the Supreme Court of Canada has said, and what it might mean for the legality of  “strip searches.”

The following points are worth bearing in mind: 

1. People who are subject to searches by schools benefit from constitutional protections, but the standard is different from the police context. While the constitutional protections against unreasonable search and seizure under s. 8 of the Charter apply generally, the Court has been clear that in the school context:

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 (emphasis added. From Court summary).  R. v. M. (M.R.),  [1998] 3 S.C.R. 393:

Key aspects of the decision were upheld in the 2008 Supreme Court of Canada case R. v. A.M., albeit by a fractured Court. 

 2.  Searches undertaken by school authorities are different from police common law searches because they are not about law enforcement: in cases where provincial laws give the schoolss the power to undertake searches and seizures in specific contexts in the school environment, the legal authority or legal framework will serve as the basis for the court to determine whether (a) the nature of the search complies with the legal framework, (b) the legal framework is itself reasonable and (c) the manner in which the search was undertaken meets the standards set out by the Court (see R. v. Golden, [2001] 3 S.C.R. 679, 2001 SCC 83).

3. Strip searches are generally understood to be body searches when the person is unclothed. However, the Supreme Court of Canada has said that it can encompass a number of other related circumstances which include:

the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments (R. v. Golden)

One might argue that asking a person (especially a minor) to remove their own clothing, including their undergarments, in a situation where the person is themselves not searched (but the clothes are) and where the person’s body is entirely hidden from view may not constitute a “strip search”: the court in R. v Golden did not specifically deal with that situation. The general rule, though, is that human rights legislation should be given a broad and purposive understanding. It is arguable that the inherent privacy violation and humiliation inherent in asking a student to strip, even if their nudity is then shielded by a covering, should be also be considered a fundamental violation of the person’s privacy rights, in the same manner as strip searches, to be justified only in the most serious circumstances. 

 4. The SCC said in its 2001 Golden ruling:

“In light of the serious infringement of privacy and personal dignity that is an inevitable consequence of a strip search, such searches are only constitutionally valid at common law where they are conducted as an incident to a lawful arrest.”

This applies to common law situations, such as searches incidental to arrest. In the case of a school, the search would be authorized by law, for example through an Education Act, and if so, it would fall outside the parameters of the statement above. In provinces that do not have legal authorization for searches, the conclusion is of course different. 

 5. None of this detracts from the fact that even though schools are given a fair degree of latitude for the reasons mentioned earlier, they must behave reasonably. The general statements from the court in Golden about the intrusive nature of these types of searches are relevant more broadly, in my view. Schools must ensure that searches are based on reasonable grounds and carried out in a manner that is proportional to the circumstances and the risks. The courts have said that there must be exigent circumstances necessitating searches like strip searches that violate fundamental human rights and dignity. Without limiting the types of situations that may be considered to be “exigent” in a school context, exigency appears to include a danger to the student, to other students, or to the school more generally including through concealment of weapons or illicit substances.

In short, there may be situations where strip searches are permissible in exigent circumstances, or where there is a real danger to others. However, responses that fall short of that would normally require less intrusive measures by the school or, if the circumstances do merit a law-enforcement intervention, the police can be called. Schools can thus avoid accusations of overreacting or abusing their considerable authority over and impact on their young charges.

 

 

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Categories: Civil Liberties, Education

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