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| Patrick Ducharme |
In M. (M.R.)3 the Supreme Court of Canada was confronted with the circumstances of the junior high school vice-principal who had been provided with reasonably reliable information from students that the accused, a student, was intending to sell drugs at a school function on school property. He asked the accused and his companion to come to his office where he asked each if they were in possession of drugs and advised them that he was going to search them. A plain-clothed RCMP constable, called by the vice-principal pursuant to school policy, was present but said nothing while the vice-principal spoke to the students and searched them. The vice-principal seized a hidden cellophane bag of marijuana and gave it to the constable who advised the accused that he was under arrest for possession of a narcotic. The constable read to him the police caution and his right to counsel, and advised him that he had the right to contact a parent or adult. The accused attempted unsuccessfully to reach his mother by phone and stated that he did not wish to contact anyone else. The constable and the accused then went to the accused’s locker and searched it but nothing was found there.
The trial Judge found that the vice-principal was acting as an agent of the police and held that the search violated the accused’s rights under the Charter. He excluded the evidence found in the search. The Crown did not offer any further evidence, and the charge against the accused was dismissed. The Court of Appeal allowed the Crown’s appeal and ordered a new trial.
The issue was when and in what circumstances a search by an elementary or secondary school official should be considered unreasonable and therefore in violation of the student’s rights under the Charter. The court held that the mere fact that there was co-operation between the vice-principal and the police and that a police officer was present during the search was not sufficient to suggest that the vice-principal was acting as an agent of the police. The search would have taken place without the presence of the police officer and was not materially different than it would have been had there been no police involvement.
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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