Her Majesty the Queen v. A.M. [Indexed as: R. v. M. (A.)]

79 O.R. (3d) 481

[2006] O.J. No. 1663

Docket: C42056

Court of Appeal for Ontario,

Goudge, Armstrong and Blair JJ.A.

April 28, 2006

Charter of Rights and Freedoms -- Search and seizure -- Police officers with sniffer dog attending school and conducting search in absence of specific invitation from school authorities -- Fact that school principal issued general invitation to police two years earlier not making police officers agents of school authorities on occasion of search -- Dog sniff of youth's backpack in school gymnasium constituting search -- Youth having reasonable expectation of privacy in his backpack on school premises -- Search unreasonable -- Search not carried out in reasonable manner as all students were confined to classrooms for up to two hours while search was conducted in absence of reasonable grounds -- Evidence of drugs found in youth's backpack properly excluded under s. 24(2) of Charter -- Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

In 2000, a high school principal issued a general invitation to police officers to bring sniffer dogs into the school if dogs were ever available. In November 2002, three police officers and a sniffer dog arrived at the school and asked for and obtained permission "to go through the school". Students were detained in classrooms for one and a half to two hours while the search was conducted. Neither the officers nor the school principal had any knowledge that there might be drugs in the school. After the students' lockers were searched, the police and the dog proceeded to the school gymnasium, where the dog reacted to one of the backpacks lying next to a wall. A police officer searched the backpack and found marijuana and psilocybin. The owner of the backpack, a student, was charged with possession of those substances for the purpose of trafficking. The youth applied successfully to exclude the evidence of the drugs under s. 24(2) of the Canadian Charter of Rights and Freedoms on the basis that his rights under s. 8 of the Charter were violated. The youth was acquitted. The Crown appealed.

Held, the appeal should be dismissed.

The general invitation issued by the school principal two years earlier did not make the police officers agents of the school authorities when they conducted the search. The search was a police search, and the Charter applied. The dog sniff of the youth's backpack constituted a search. The youth's expectation of privacy in his backpack on school premises was not so diminished as to be negligible. A student's backpack should be afforded at least the same degree of respect as an adult's briefcase. There are no contextual factors that diminish students' legitimate expectation of privacy, dignity and autonomy in their backpacks. As the search was warrantless, it was prima facie unreasonable. Neither the Education Act, R.S.O. 1990, c. E.2, the provincial Code of Conduct nor the applicable school board policy in this case provided for warrantless, random searches. The search was not carried out in a reasonable manner. There was no credible information to suggest that a search was justified, yet the entire population was detained in classrooms for up to two hours. There were no reasonable grounds to detain the students. The Crown had failed to rebut the presumption that the search was unreasonable. The trial judge did not err in excluding the evidence of the drugs under s. 24(2) of the Charter. The Charter violation was serious. To admit the evidence was effectively to strip the youth and any other [page482] student in a similar situation of the right to be free from unreasonable search and seizure.

APPEAL by the Crown from the acquittal entered on June 9, 2004 by Hornblower J. of the Ontario Court of Justice (Youth Justice Court).

Cases referred to Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, 33 Alta. L.R. (2d) 193, 11 D.L.R. (4th) 641, 55 N.R. 241, [1984] 6 W.W.R. 577, 9 C.R.R. 355, 27 B.L.R. 297, 14 C.C.C. (3d) 97, 2 C.P.R. (3d) 1, 41 C.R. (3d) 97, 84 D.TC. 6467 (sub nom. Southam Inc. v. Director of Investigation and Research of Combines Investigations Branch); R. v. Buhay, [2003] 1 S.C.R. 631, [2003] S.C.J. No. 30, 177 Man. R. (2d) 72, 225 D.L.R. (4th) 624, 305 N.R. 158, 304 W.A.C. 72, [2004] 4 W.W.R. 1, 107 C.R.R. (2d) 240, 174 C.C.C. (3d) 97, 2003 SCC 30, 10 C.R. (6th) 205; R. v. Calderon, 2004 7569 (ON CA), [2004] O.J. No. 3474, 122 C.R.R. (2d) 304, 188 C.C.C. (3d) 481, 23 C.R. (6th) 1 (C.A.); R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, 13 B.C.L.R. (2d) 1, 38 D.L.R. (4th) 508, 74 N.R. 276, [1987] 3 W.W.R. 699, 28 C.R.R. 122, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193 (sub nom. Collins v. R.); R. v. Evans, 1996 248 (SCC), [1996] 1 S.C.R. 8, [1996] S.C.J. No. 1, 131 D.L.R. (4th) 654, 191 N.R. 327, 33 C.R.R. (2d) 248, 104 C.C.C. (3d) 23, 45 C.R. (4th) 210; R. v. Law, [2002] 1 S.C.R. 227, [2002] S.C.J. No. 10, 208 D.L.R. (4th) 207, 281 N.R. 267, 90 C.R.R. (2d) 55, 160 C.C.C. (3d) 449, 2002 SCC 10; R. v. M. (M.R.), 1998 770 (SCC), [1998] 3 S.C.R. 393, [1998] S.C.J. No. 83, 171 N.S.R. (2d) 125, 166 D.L.R. (4th) 261, 233 N.R. 1, 519 A.P.R. 125, 57 C.R.R. (2d) 189, 129 C.C.C. (3d) 361, 20 C.R. (5th) 197; R. v. Mann, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, 187 Man. R. (2d) 1, 241 D.L.R. (4th) 214, 330 W.A.C. 1, [2004] 11 W.W.R. 601, 122 C.R.R. (2d) 189, 185 C.C.C. (3d) 308, 2004 SCC 52, 21 C.R. (6th) 1; R. v. Mohamad (2004), 2004 9378 (ON CA), 69 O.R. (3d) 481, [2004] O.J. No. 279, 115 C.R.R. (2d) 229, 182 C.C.C. (3d) 97, 20 C.R. (6th) 178 (C.A.); R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, [1997] S.C.J. No. 34, 185 N.B.R. (2d) 1, 144 D.L.R. (4th) 193, 209 N.R. 81, 472 A.P.R. 1, 42 C.R.R. (2d) 189, 113 C.C.C. (3d) 321, 5 C.R. (5th) 1; R. v. Tessling, [2004] 3 S.C.R. 432, [2004] S.C.J. No. 63, 192 O.A.C. 168, 244 D.L.R. (4th) 541, 326 N.R. 228, 123 C.R.R. (2d) 257, 189 C.C.C. (3d) 129, 2004 SCC 67, 23 C.R. (6th) 207 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 8, 24(2) Education Act, R.S.O. 1990, c. E.2 Authorities referred to Code of Conduct (Ontario Ministry of Education)

Robert W. Hubbard and Lisa D. Mathews, for appellant. Walter Fox, for respondent. Jonathan C. Lisus, Christopher A. Wayland and Sarah W. Corman, for intervenor, Canadian Civil Liberties Association.

The judgment of the court was delivered by

[1] ARMSTRONG J.A.:-- On November 7, 2002, three police officers attended St. Patrick's High School in Sarnia and, with the assistance of a "sniffer" dog, conducted a warrantless and [page483] random search of the school. The attendance of the police on that particular day was not at the request of school authorities. The principal and staff were unaware that the police were planning to attend until they arrived in the school.

[2] As a result of an indication from the sniffer dog, the police were directed to the backpack of A.M. When they searched the backpack, they found that it contained a quantity of marijuana and psilocybin. A.M. was charged with possession for the purpose of trafficking in respect of both drugs.

[3] At trial, counsel for A.M. moved to exclude the evidence of the drugs found in the backpack on the basis that the search by the police was unreasonable and therefore offended s. 8 of the Canadian Charter of Rights and Freedoms. The trial judge, Justice G.M. Hornblower of the Ontario Youth Justice Court, accepted the submissions of counsel and excluded the evidence related to the drugs under s. 24(2) of the Charter. In the result, A.M. was acquitted of the charges.

[4] The Crown now appeals the acquittals on the basis that the trial judge erred in finding a breach of s. 8 of the Charter and in excluding the evidence under s. 24(2) of the Charter.

[5] For the reasons which follow, I would dismiss the appeal.

The Facts

[6] Mr. John Bristo became the principal of St. Patrick's High School of Sarnia in September 2000. At about that time, Mr. Bristo spoke to the Youth Bureau of Sarnia Police Services and advised the Bureau that if the police ever had sniffer dogs available to bring into the school, they were welcome to do so. Prior to November 7, 2002, the police took advantage of this standing invitation on a couple of occasions.

[7] Mr. Bristo was concerned about the presence of drugs in the school. He had received reports of drug use in the school from time to time from parents and school neighbors.

[8] Mr. Bristo testified that the school had a zero tolerance policy for possession and use of drugs in the school. The zero tolerance policy was communicated to both the student body and the parents.

[9] On the morning of November 7, 2002, three police officers (two from Sarnia Police Services and one from the O.P.P.) arrived at the school with a sniffer dog. The police advised the principal that they wanted "permission to go through the school". The principal immediately gave the requested permission. The principal then informed the student body on the school's public address system that the police were on the premises and that they should "remain in the confines to their classroom[s] until the search was [page484] conducted". The result of this announcement was that no student could leave his or her classroom.

[10] The police proceeded with the search of the school premises. Before the police left the premises, they asked the principal if there was any place that he wanted the police to go. The principal asked them to go to the small gymnasium and search that area as well.

[11] Mr. Bristo testified that after the police officers arrived at the school, he had no involvement in carrying out the search. There was no discussion as to how the search was to be conducted. On November 7, 2002, the principal had no knowledge that there might be drugs in the school although he said"It's pretty safe to assume that they could be there."

[12] The principal was unaware of any particular target area on November 7, 2002. The reason he directed the police to the small gymnasium is that the police had searched everywhere else with the exception of the gymnasium and that is why he directed them there.

[13] At the request of the principal, a teacher at the school, Mr. Blake Morrison, took the police officers to the small gymnasium. Mr. Morrison gave no direction to the police in respect of the search.

[14] Constable Robert McCutchen of the O.P.P. proceeded to the small gymnasium with his sniffer dog. The dog was trained to detect heroin, marijuana, hashish, crack cocaine and cocaine. There were no students in the small gymnasium. However, there were some backpacks lying next to the wall. The sniffer dog reacted to one of the backpacks by biting at the backpack. Constable McCutchen handed the backpack to a Sarnia police officer and told him that he may be interested in what was in the backpack.

[15] Under cross-examination, defence counsel suggested to Constable McCutchen that the activity in which he and his dog were engaged constituted a search. Constable McCutchen agreed. At that point counsel for the Crown advised:

Crown concedes that, Your Honour. There is no dispute on that particular point.

[16] On the day of the search, Constable McCutchen had no information with respect to a specific target area in the school and no information with respect to particular persons to be searched.

[17] Constable Michael Callander of Sarnia Police Services conducted the search of the backpack, which was the object of the sniffer dog's attention. Amongst the contents of the backpack he [page485] identified a plastic bag containing five bags of marijuana, a tin box containing five bags of marijuana, a bag containing approximately ten magic mushrooms (psilocybin), a bag containing a pipe, a lighter, rolling papers and a roach clip. A.M.'s wallet, which contained his identification, was in the backpack. Constable Callander was present when A.M. was arrested.

[18] Certificates of analysis were produced at trial in respect of the marijuana and psilocybin.

[19] Constable Callander testified that he was unaware of the existence of any drugs in the school when he attended there on November 7, 2002. He agreed that, based on the information which he had, it would have been a fruitless exercise to try to obtain a warrant.

The Trial Judgment

[20] The trial judge relied upon the principles set forth in the judgment of the Supreme Court of Canada in R. v. M. (M.R.), 1998 770 (SCC), [1998] 3 S.C.R. 393, [1998] S.C.J. No. 83. The trial judge concluded that the search conducted on November 7, 2002 was conducted without any reasonable grounds. He further concluded that"The difficulties with reasonableness in this instance are compounded by the fact that this was not a search conducted by school authorities."

[21] The trial judge found that there were two searches. The first search was the search conducted with the assistance of the sniffer dog; the second search was the search of the backpack of A.M. The trial judge concluded that neither search was reasonable.

[22] Finally, the trial judge concluded that the search was a police search in the guise of a search by school authorities. He noted that, even if it had been a search by school authorities, the school authorities had no right to conduct such a search in the absence of reasonable grounds to believe drugs could be found.

[23] The trial judge excluded the evidence obtained as a result of the police search under s. 24(2) of the Charter. In his consideration of the application of s. 24(2) of the Charter the trial judge said:

While this case centres around the rights of A.M., the rights of every student in the school were violated that day as they were all subject to an unreasonable search. This search was unreasonable from the outset. It is completely contrary to the requirements of the law with respect to a search in a school setting. To admit the evidence is effectively to strip A.M. and any other student in a similar situation of the right to be free from unreasonable search and seizure. It is effectively saying that persons in the same situation as A.M. have no rights. Such a finding would, to my mind, bring the administration of justice into disrepute notwithstanding the other factors I have alluded to. [page486]

The Crown's Submissions

[24] Counsel for the Crown raises the following issues on this appeal:

(1) The police were acting as agents of the school authorities;

(2) The dog sniff was not a search;

(3) If the dog sniff was a search, it was reasonable;

(4) The search of the backpack was reasonable; and

(5) The trial judge erred in excluding the evidence.

1. The police were acting as agents of the school authorities

[25] Counsel for the Crown submits that the police conducted the search at the request of the school principal who was responsible for maintaining school discipline and ensuring compliance with the Education Act, R.S.O. 1990, c. E.2 (the "Education Act") and the subsidiary policies related to the presence of illegal drugs in schools. Counsel further submits that, but for the standing invitation of the principal, no search would have been conducted by the police. As a result, the police were acting as agents of the school authorities. However, the Crown concedes that, given the fact that police officers physically carried out the search of A.M.'s backpack, the Charter applies.

2. The dog sniff was not a search

[26] Counsel for the Crown, in oral argument, divided the conduct of the police into three stages:

(i) the initial entry of the police into the school;

(ii) the general search of the premises; and

(iii) the search of A.M.'s backpack.

[27] The Crown argues that in the first two stages, the police were not engaged in a search for s. 8 purposes. Section 8 of the Charter is engaged only when police conduct impinges on a reasonable expectation of privacy: see R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227, [2002] S.C.J. No. 10, at para. 15.

[28] Counsel for the Crown submits that when the police arrived at the school and obtained permission to walk about the premises with their sniffer dog they were not engaged in a search for s. 8 purposes. At that stage, according to this submission, [page487] there was no reasonable expectation of privacy on the part of the students generally, and A.M. in particular.

[29] Counsel for the Crown argues that the dog sniff was not a search for s. 8 purposes. The only information conveyed by a dog sniff is the presence or absence of a scent -- in this case, the odour of illicit drugs. The Crown further argues that there is no reasonable expectation of privacy in respect of an odour emanating from drugs in a backpack.

3. If the dog sniff was a search, it was reasonable

[30] Counsel for the Crown began his analysis by submitting that the facts suggested that A.M.'s expectation of privacy in his backpack "was so significantly diminished as to be negligible". In support of this submission, the Crown relies on a number of objective factors which include:

(a) the backpack was left unattended in a public area of the gymnasium;

(b) A.M. was not present;

(c) A.M. knew or ought to have known about the school's zero tolerance policy for drugs, including the possibility of the police attending at the school; and

(d) a student's reasonable expectation of privacy in a school setting is significantly diminished.

[31] The Crown asserts that because A.M. did not testify on the Charter motion, there was no evidence of a subjective expectation of privacy on the part of A.M. in his backpack.

[32] At the time this case was before the trial judge, the Supreme Court of Canada had not delivered its judgment in R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, [2004] S.C.J. No. 63. In that case the police were in receipt of information that the accused was producing and trafficking in marijuana in his residence. The police flew over the accused's house in an airplane and took pictures with a Forward Looking Infra-Red ("FLIR") camera. The camera produced pictures of heat emanating from the house. An analysis of the heat patterns in the pictures indicated that there might have been a marijuana growing operation in the house. The police obtained a search warrant, based in part on the FLIR evidence. The subsequent search by police revealed a large quantity of marijuana and weapons in the house. During the trial of the accused for the possession of marijuana for the purpose of trafficking and other offences, counsel for the accused brought a [page488] s. 8 Charter challenge to exclude the evidence from the house. The trial judge admitted the evidence. On appeal to this court, the appeal was allowed on the basis that the use of the FLIR camera constituted an invasion of the accused's privacy interest. The Supreme Court of Canada reversed the decision of the Court of Appeal for Ontario. The Supreme Court of Canada held that in the totality of the circumstances of the case, the accused did not have a reasonable expectation of privacy in information about patterns of heat emanating from his house.

[33] The Crown argues that the judgment of the Supreme Court in Tessling is supportive of its position that a dog sniff does not constitute a search for s. 8 purposes.

[34] Counsel for the Crown further argues that the search with the sniffer dog was authorized by law. This argument is premised on the basis that the search was a search by the school authorities through the agency of the police. Counsel supports this submission by reference to M. (M.R.). In M. (M.R.), Cory J., on behalf of the Supreme Court, stated the following at para. 51:

Teachers must be able to search students if they are to fulfil the statutory duties imposed upon them. It is reasonable, if not essential to provide teachers and principals with this authorization to search.

(Emphasis added)

[35] The Crown also relies upon the following factors considered by Cory J. at para. 54 in assessing the reasonableness of a search conducted by school authorities:

(1) The first step is to determine whether it can be inferred from the provisions of the relevant Education Act that teachers and principals are authorized to conduct searches of their students in appropriate circumstances. In the school environment such a statutory authorization would be reasonable.

(2) The search itself must be carried out in a reasonable manner. It should be conducted in a sensitive manner and be minimally intrusive.

(3) In order to determine whether a search was reasonable, all the surrounding circumstances will have to be considered.

[36] In this case, the Crown finds support for its position in the Education Act, the provincial Code of Conduct (the "Code") promulgated pursuant to the Act, the St. Clair Catholic School Board Policy (the "Board Policy") and the zero tolerance policy of St. Patrick's High School. The Education Act contains an anti-drugs policy, which provides for a number of anti-drugs measures including the expulsion of students who are caught trafficking drugs. The Education Act also authorizes the Minister of Education to create a code of conduct that has as one of its objectives the [page489] aim of "discouraging the use of alcohol and illegal drugs". The present Code, which came into force on September 1, 2001 provides:

Alcohol and illegal drugs are addictive and present a health hazard. Ontario schools will work cooperatively with police, drug and alcohol agencies to promote prevention strategies and, where necessary, respond to school members who are in possession of, or under the influence of, alcohol or illegal drugs.

[37] The Board Policy in respect of tobacco, alcohol and drug abuse was approved on December 1, 2000. The Board Policy states that: "The Board will work in partnership with students, parents, law enforcement agencies, community agencies, groups and parishes to help young people avoid the use of tobacco, alcohol and drugs." The Board Policy states that, where a school principal has reasonable grounds to believe that a student has engaged in the trafficking, possession or use of illegal drugs, the principal has a duty to search the student, his or her locker and his or her personal effects for evidence. The principal has discretion to involve the police in such an investigation.

4. The search of the backpack was reasonable

[38] The Crown concedes that when Constable Callander opened A.M.'s backpack he was conducting a search, which engaged s. 8 of the Charter. However, the Crown argues that for all of the reasons advanced above, and based upon an indication received from the dog sniff, the backpack search was reasonable. There was no reasonable expectation of privacy in the backpack left in the gymnasium; the search was authorized by law; and the search was conducted only when the police had reasonable grounds to believe that the backpack contained illicit drugs.

5. The trial judge erred in excluding the evidence

[39] The Crown asserts that pursuant to the test articulated by the Supreme Court of Canada in R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15 and refined by the court in R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, [1997] S.C.J. No. 34, the evidence from the backpack search should have been admitted.

[40] The evidence from the backpack was non-conscriptive; as such, under the first branch of the Collins test, there is no issue of trial fairness. Under the second branch of the test, the Crown argues that the search of the backpack did not constitute a serious breach of s. 8. The search was minimally invasive of A.M.; there was a negligible expectation of privacy; a relaxed standard of reasonable grounds was applicable to a school search; and the police and school authorities acted in good faith. [page490]

[41] Under the third branch of the Collins test, the court must consider the seriousness of the offence and the importance of the evidence to the Crown's case in order to determine the effects of exclusion on the reputation of the administration of justice: see R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, [2003] S.C.J. No. 30, at para. 67. Counsel for the Crown argues that the drugs are central to the Crown's case and without the admission of that evidence, there would be no case. The Crown therefore submits that the evidence should have been admitted.

Analysis

[42] Section 8 of the Charter provides: "Everyone has the right to be secure against unreasonable search or seizure."

1. Were the police acting as agents of the school authorities?

[43] In my view, what occurred at St. Patrick's High School on November 7, 2002 was a search by the police. No school authority requested the presence of the police on that day. The principal received no notice of the intention of the police to conduct a search. Neither the principal nor the teacher, Mr. Morrison, played any active role in the search. The fact that some two years earlier the school principal had issued a standing invitation to the police to search the school with the assistance of a sniffer dog does not, in my opinion, turn the search of November 7, 2002 into a search by school authorities in police uniforms [^1].

[44] There was an abundance of evidence upon which the trial judge could conclude that the search at issue was a police search. I see no basis upon which to interfere with his finding in that respect. Accordingly, the Charter applies and in particular, provided that the police conduct constituted a search, s. 8 is engaged.

2. Was the dog sniff a search?

[45] Constable Callander testified that they went to the school to conduct a "random search". Constable McCutchen, who was the dog's handler, agreed in cross-examination that he and the dog were engaged in a search. The Crown conceded that point. That concession foreclosed any further cross-examination on the issue. That said, I do not find it necessary in this case to decide whether the police activity prior to the search of the backpack constituted a search for s. 8 purposes. In my view, the dog sniff of [page491] A.M.'s backpack and the search of the backpack by Constable Callander constituted a search for the purposes of s. 8 of the Charter.

[46] I agree with the submission of counsel for the Canadian Civil Liberties Association that:

The dog is a necessary, direct, and integral part of the police officers' search of the classrooms, gymnasium and backpacks. The dog is, in essence, a physical extension of its handler and is directly and immediately connected to the consequent physical search of the backpack.

[47] I am not persuaded that the judgment of the Supreme Court of Canada in Tessling is supportive of the Crown's position that a dog sniff is not a search. In Tessling, the house of the accused was specifically targeted as a result of information that the accused was involved in a marijuana grow operation. I see a significant difference between a plane flying over the exterior of a building (on the basis of information received) and the taking of pictures of heat patterns emanating from the building, and a trained police dog sniffing at the personal effects of an entire student body in a random police search.

[48] I note that the Supreme Court of Canada has held that police officers who attended at the door of a house for the purpose of sniffing for the odour of marijuana were involved in an "olfactory search" which engaged s. 8 of [the] Charter: see R. v. Evans, 1996 248 (SCC), [1996] 1 S.C.R. 8, [1996] S.C.J. No. 1, at para. 30.

3. Was the dog sniff search reasonable?

[49] The Crown takes the position that A.M.'s expectation of privacy in his backpack "was so significantly diminished as to be negligible". With respect, I disagree. I agree with the submission of both counsel for A.M. and the Canadian Civil Liberties Association that a student's backpack should be afforded at least the same degree of respect as an adult's briefcase. In R. v. Mohamad (2004), 2004 9378 (ON CA), 69 O.R. (3d) 481, [2004] O.J. No. 279 (C.A.), at para. 25 this court said:

In the contemporary context, briefcases often house highly confidential personal and business information. They can serve, in a practical sense, as portable offices for their owners . . . [O]wners of briefcases generally have a reasonable expectation of privacy in the contents of their briefcases.

[50] Counsel for the Canadian Civil Liberties Association made the following submission with respect to a student's backpack in a school setting such as this:

A student's backpack is in effect a portable bedroom and study rolled into one. It will contain personal items such as journals, photos, letters, personal hygiene items, medication, clothing and school records. Backpacks are often [page492] in reality the only way for students to carry and use items that are personal and important to them. These items are shielded from view and access.

There are no contextual factors that diminish students' legitimate expectation of privacy, dignity, and autonomy in their backpacks. Students' expectation of privacy in their backpacks is objectively reasonable. Backpacks are not searched in the normal course of a school day, nor do students come to school expecting that their backpacks will be searched. The students did not consent to their backpacks being searched on November 7, 2002 and the Principal certainly could not consent on their behalf.

I agree with the above submission as it relates to the circumstances of this case.

[51] The search in this case was warrantless. The Supreme Court of Canada in Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641, at p. 161 S.C.R. held that a warrantless search by the police is prima facie unreasonable. The Crown, who seeks to justify a warrantless search, has the burden of rebutting the presumption of unreasonableness. In Collins, the Supreme Court held at p. 278 S.C.R. that "[a] search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable."

[52] I pause here to observe that, in respect of a search by school authorities (on reasonable grounds), the same presumption does not apply: see M. (M.R.), at para. 50. However, I have already said that, in my opinion, this was a warrantless search by the police and therefore the presumption in Hunter v. Southam applies. As Cory J. said in M. (M.R.), at para. 56:

The usual standard, requiring prior authorization in the form of a warrant which is based upon information which provides reasonable and probable grounds, will continue to apply to police and their agents in their activities within a school. The modified standard for school authorities is required to allow them the necessary latitude to carry out their responsibilities to maintain a safe and orderly school environment. There is no reason, however, why police should not be required to comply with the usual standards, merely because the person they wish to search is in attendance at an elementary or secondary school.

[53] As set out above, counsel for the Crown asserts that the Education Act, the provincial Code of Conduct, the St. Clair Catholic School Board Policy and the school's zero-tolerance policy provide the authority for a warrantless search in this case. This submission is premised on the ground that the search was a search by school authorities conducted through the agency of the police. However, even if this was a search by school authorities through the agency of the police, there is nothing in the Education Act and the subsidiary policies articulated in the other documents that gives the required authority to conduct such a search. [page493]

[54] Neither the Education Act nor the subsidiary policies provide for warrantless, random searches. Mr. Bristo, the principal, testified that the school authorities could not have legally conducted the search that was carried out by the police in this case. Mr. Bristo testified that the zero-tolerance policy is applied "on an individual basis when and if [incidents] occur and [are] discovered".

[55] The provincial Code of Conduct, established pursuant to the Education Act, is targeted at individual students on the basis of credible information:

Alcohol and illegal drugs are addictive and present a health hazard. Ontario schools will work cooperatively with police, drug and alcohol agencies to promote prevention strategies and, where necessary, respond to school members who are in possession of, or under the influence of, alcohol or illegal drugs.

[56] As Cory J. said at para. 48 of M. (M.R.):

A search by school officials of a student under their authority may be undertaken if there are reasonable grounds to believe that a school rule has been or is being violated, and that evidence of the violation will be found in the location or on the person of the student searched. Searches undertaken in situations where the health and safety of students is involved may well require different considerations. All the circumstances surrounding a search must be taken into account in determining if the search is reasonable.

(Emphasis added)

4. Was the search carried out in a reasonable manner?

[57] To facilitate the search, the entire student population was detained in their classrooms for a period of one and a half to two hours. Although it was the principal who made the announcement to the student body to remain in the classrooms, it is my opinion that a review of the record indicates that he did so to accommodate the police search. There was no credible information to suggest that a search was justified. There were no reasonable grounds to detain the students. As Laskin J.A. said in R. v. Calderon, 2004 7569 (ON CA), [2004] O.J. No. 3474, 188 C.C.C. (3d) 481 (C.A.), at para. 69: "An officer cannot exercise the power to detain on a hunch, even a hunch borne of intuition gained by experience."

[58] The Supreme Court of Canada has held that there must be a clear nexus between the individual to be detained and a recent or on-going criminal offence. This position was articulated by Iacobucci J. for the majority of the court in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, at para. 34:

The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention [page494] must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.

[59] Quite apart from the detention of the entire student body, of more significance is the unauthorized warrantless random search itself.

[60] In my view, the Crown has failed to rebut the presumption that the search was unreasonable. Even if the presumption of unreasonableness did not apply, it is my opinion that there were no grounds upon which to justify a random search of the kind that was conducted in this case.

5. Did the trial judge err in excluding the evidence?

[61] The trial judge employed the Collins test in his consideration of the application of s. 24(2) of the Charter. I am not able to conclude that he erred in his decision to exclude the evidence.

[62] This was a warrantless, random search with the entire school body held in detention. It was not authorized by either the criminal law or the Education Act and subsidiary school policies. The breach was serious. As the trial judge said:

To admit the evidence is effectively to strip A.M. and any other student in a similar situation of the right to be free from unreasonable search and seizure.

Disposition

[63] I would dismiss the appeal.

Appeal dismissed.

Notes

[^1]: It might indeed be argued that the principal, in giving his consent to the search, was an agent of the police: see M. (M.R.) at para. 29.