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| Patrick Ducharme |
To establish a violation of section 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. It is not rendered unreasonable merely by the student’s presence at school.
A reasonable expectation of privacy, however, may be diminished in some circumstances. The expectation of privacy 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 personal searches and searches of their personal effects.
The court found that 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 childrens’ 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.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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