Case Law Foreshadows Enhanced Protection Against Search And Seizure Of Devices

The roles filled by educators are constantly expanding. Teachers and principals have duties to discipline activities that adversely affect the school climate1 and they are expected to exercise the care and attention of a reasonably prudent parent in keeping students safe.2 School officials are increasingly called upon to monitor student conduct to prevent bullying, harassment, and violence. More and more often, the prevention of cyberbullying compels school investigations into students' digital presences.

Meanwhile, students carry an ever-increasing depth of personal data around in their pockets. Constant developments in technology understandably prompt an increased interest for students in the protection of their digital privacy.

The expansive mandate of educators to investigate threats to student safety portends a looming clash between the protection of personal lives of students and the need to ensure a safe and inclusive learning environment. The question emerging for principals, teachers, and students alike is: what are the appropriate parameters of an educator's search of a student device?

Section 8 Rights

Section 8 of the Canadian Charter of Rights and Freedoms provides for the right to be secure against unreasonable search or seizure.3 The basis of this constitutional search and seizure law is the concept of a reasonable expectation of privacy. This concept is used in two ways. First, it is used to determine whether the state conduct has interfered with an individual's reasonable expectation of privacy. Second, the concept of the reasonable expectation of privacy is relied on to determine whether a particular search or seizure is reasonable.4

Using the reasonable expectation of privacy to assess the reasonableness of a search allows for consideration of the interests at stake in a way that is highly context specific. In schools, the relevant context certainly includes the educator's mandate to ensure the safety of students and to prevent bullying and intimidation, including cyberbullying. The strength of the reasonable expectation model is that it requires explicit consideration of all of the relevant factors. It should be sufficiently flexible to take account of technological change.

The General "School Search" Framework

The Education Act makes it clear that educators' powers of search and seizure stem directly from their responsibilities to keep students safe and to effectively enforce discipline.5 Teachers have a duty to...