R. v. M.R.M., (1998) 233 N.R. 1 (SCC)

• Judge: Iacobucci, Major, Bastarache and Binnie, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 26, 1998
• Jurisdiction: Canada (Federal)
• Citations: (1998), 233 N.R. 1 (SCC);166 DLR (4th) 261;[1998] ACS no 83;57 CRR (2d) 189;[1998] SCJ No 83 (QL);1998 CanLII 770 (SCC);519 APR 125;40 WCB (2d) 190;171 NSR (2d) 125;20 CR (5th) 197;[1998] 3 SCR 393;233 NR 1;129 CCC (3d) 361

R. v. M.R.M. (1998), 233 N.R. 1 (SCC)

MLB Headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1998] N.R. TBEd. NO.017

M.R.M. (appellant) v. Her Majesty The Queen (respondent)

(26042)

Indexed As: R. v. M.R.M.

Supreme Court of Canada

Lamer, C.J.C., L'Heureux-Dubé,

Gonthier, Cory, McLachlin,

Iacobucci, Major, Bastarache

and Binnie, JJ.

November 26, 1998.

Summary:

A junior high school vice-principal received reliable information that a 13 year old student was selling drugs on school property and would be in possession of drugs at a school dance. The vice-principal called the R.C.M.P. The vice-principal requested that the student come to his office and submit to a search. The student rolled up his pant leg and had a bag of marijuana hidden in his sock. The R.C.M.P. officer arrived during the search, but sat by only as an observer. The vice-principal voluntarily turned over the marijuana to the officer, who then arrested the student and advised him of his Charter rights. The student was charged with possession of a narcotic (Narcotic Control Act, s. 3(1)).

The Nova Scotia Provincial Court acquitted the student. The vice-principal acted as an agent for the R.C.M.P. The student was subjected to an unreasonable search and seizure (Charter, s. 8) and was denied his right to counsel (s. 10) upon detention. The trial judge excluded the evi­dence obtained under s. 24(2). The Crown appealed.

The Nova Scotia Court of Appeal, in a judgment reported 159 N.S.R.(2d) 321; 468 A.P.R. 321, allowed the appeal and ordered a new trial. The vice-principal was not an R.C.M.P. agent. There was no violation of s. 8 (search reasonably related to objective of maintaining order and discipline) or s. 10 of the Charter (no detention prior to arrest). The student appealed.

The Supreme Court of Canada, Major, J., dissenting, dismissed the appeal.

Civil Rights - Topic 1217

Security of the person - Lawful or rea­sonable search - Unreasonable search and seizure - What constitutes - A junior high school vice-principal received reliable information that a 13 year old student was selling drugs on school property and would be in possession of drugs at a school dance - The vice-principal called the R.C.M.P., then requested that the student come to his office to be searched - The student rolled up his pant leg and had a bag of marijuana hidden in his sock - The R.C.M.P. officer arrived during the search, but sat by only as an observer - The Supreme Court of Canada affirmed that there was no vio­lation of s. 8 of the Charter - The court assumed that schools were part of govern­ment, thereby engaging s. 8 - The vice-principal was not acting as an agent of police - The reasonable expectation of privacy of students was "significantly diminished" while in the school setting - School authorities need not obtain a search warrant or other authorization before con­ducting a search - The court held that where there were reasonable grounds to believe that a school rule was violated and that evidence of such violation would be found on a search, and where the search was conducted reasonably and was im­plicitly authorized by the Education Act, s. 8 was not violated - See paragraphs 1 to 64.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes - A junior high school vice-principal received reliable informa­tion that a 13 year old student was selling drugs on school property and would be in pos­session of drugs at a school dance - The vice-principal called the R.C.M.P., then requested that the student come to his office to be searched - The student rolled up his pant leg and had a bag of marijuana hidden in his sock - The R.C.M.P. officer arrived during the search, but sat by only as an observer (i.e. not an agent of police) - The vice-principal voluntarily turned over the marijuana to the officer, who then arrested the student and advised him of his rights - The Nova Scotia Court of Appeal rejected the submission that the student was detained when asked to go to the vice-principal's office or when the R.C.M.P. officer first arrived - The stu­dent was subject to school discipline and required to attend to undergo reasonable disciplinary or investigatory procedures at the request of school staff - The student was not detained until he was arrested - Absent "detention", there was no violation of his s. 10(b) Charter right to counsel where he was advised of his rights upon his arrest - The Supreme Court of Canada affirmed that the student was not detained for the purposes of s. 10(b) - See para­graphs 65 to 68.

Civil Rights - Topic 4613

Right to counsel - Requirement of arrest or detention - [See Civil Rights - Topic 3604 ].

Civil Rights - Topic 8305

Canadian Charter of Rights and Freedoms - Application of - Persons protected - Students - A junior high school vice-prin­cipal received reliable information that a 13 year old student was selling drugs on school property and would be in pos­session of drugs at a school dance - The vice-principal called the R.C.M.P., then requested that the student come to his office to be searched - The student rolled up his pant leg and had a bag of marijuana hidden in his sock - The R.C.M.P. officer arrived during the search, but sat by only as an observer - The Supreme Court of Canada stated that "it would be best to assume simply, for the purposes of this case, that schools constitute part of gov­ern­ment and as a result the Charter applies to the actions of the vice-principal" - See paragraphs 24 to 25.

Education - Topic 5229

Students - Discipline and dismissal - Search and seizure by school authorities - The Supreme Court of Canada stated that "[t]he approach to be taken in considering searches by teachers may be summarized in this manner: (1) A warrant is not essen­tial in order to conduct a search of a student by a school authority. (2) The school authority must have reasonable grounds to believe that there has been a breach of school regulations or discipline and that a search of a student would reveal evidence of that breach. (3) School au­thorities will be in the best position to assess information given to them and relate it to the situation existing in their school. Courts should recognize the preferred position of school authorities to determine if reasonable grounds existed for the search. (4) The following may constitute reasonable grounds in this context: infor­mation received from one student con­sidered to be credible, information received from more than one student, a teacher's or principal's own observations, or any com­bination of these pieces of information which the relevant authority considers to be credible. The compelling nature of the information and the credibility of these or other sources must be assessed by the school authority in the context of the cir­cumstances existing at the particular school." - See paragraph 50.

Education - Topic 5229

Students - Discipline and dismissal - Search and seizure by school authorities - [See Civil Rights - Topic 1217 ].

Education - Topic 5283

Students - Students' rights - Expectation of privacy - [See Civil Rights - Topic 1217 ].

Education - Topic 5283

Students - Students' rights - Expectation of privacy - The Supreme Court of Canada stated that "the reasonable expec­tation of privacy of a student in attendance at a school is certainly less than it would be in other circumstances. Students know that their teachers and other school author­ities are responsible for providing a safe en­vironment and maintaining order and discipline in the school. They must know that this may sometimes require searches of students and their personal effects and the seizure of prohibited items. It would not be reasonable for a student to expect to be free from such searches. A student's reasonable expectation of privacy in the school environment is therefore signifi­cant­ly diminished." - See paragraph 33.

Cases Noticed:

R. v. J.M.G. (1986), 17 O.A.C. 107; 56 O.R.(2d) 705 (C.A.), consd. [para. 11].

New Jersey v. T.L.O. (1985), 469 U.S. 325 (U.S.S.C.), consd. [para. 17].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193, refd to. [para. 18].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241; 66 C.R.(3d) 297; 45 C.C.C.(3d) 296, refd to. [para. 19].

British Columbia Securities Commission v. Branch and Levitt, [1995] 2 S.C.R. 3; 180 N.R. 241; 60 B.C.A.C. 1; 99 W.A.C. 1; 97 C.C.C.(3d) 505, refd to. [para. 19].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1; 76 D.L.R.(4th) 545; 2 C.R.R.(2d) 1, refd to. [para. 24].

Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570; 118 N.R. 340, refd to. [para. 24].

Eldridge et al. v. British Columbia (At­torney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 24].

R. v. Broyles, [1991] 3 S.C.R. 595; 131 N.R. 118; 120 A.R. 189; 8 W.A.C. 189; 8 C.R.R.(2d) 274; [1992] 1 W.W.R. 289; 9 C.R.(4th) 1; 84 Alta. L.R.(2d) 1; 68 C.C.C.(3d) 308, appld. [para. 29].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321; 104 C.C.C.(3d) 136, refd to. [para. 31].

Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841; 225 N.R. 297, refd to. [para. 31].

R. v. Colarusso, [1994] 1 S.C.R. 20; 162 N.R. 321; 69 O.A.C. 81; 87 C.C.C.(3d) 193, refd to. [para. 31].

R. v. Wong et al., [1990] 3 S.C.R. 36; 120 N.R. 34; 45 O.A.C. 250; 60 C.C.C.(3d) 460, refd to. [para. 31].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 33].

Zamora v. Pomeroy (1981), 639 F.2d 662, refd to. [para. 34].

People v. Overton (1969), 301 N.Y.S.2d 479, refd to. [para. 34].

State in Interest of T.L.O. v. Engerud (1983), 94 N.J. 331, affd. (1985), 469 U.S. 325, refd to. [para. 34].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 46].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153; 45 C.R.(3d) 97; 18 C.C.C.(3d) 481, refd to. [para. 67].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289, refd to. [para. 67].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 85].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 85].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81; 18 C.C.C.(3d) 405, refd to. [para. 85].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81; 104 C.C.C.(3d) 23, refd to. [para. 87].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 10(b), sect. 24(2), sect. 32(1) [para. 8].

Education Act, R.S.N.S. 1989, c. 136, sect. 54(b), sect. 54(g) [para. 8].

Education Act Regulations (N.S.), General Regulations, Reg. 226/84, sect. 3(7), sect. 3(9) [para. 8].

Authors and Works Noticed:

Fischer, Thomas C., From Tinker to TLO; Are Civil Rights for Students "Flunking" in School? (1993), 22 J.L. & Education 409, generally [para. 42].

Sanchez, J.M., Expelling the Fourth Amendment from American Schools: Students' Rights Six Years After T.L.O. (1992), 21 J.L. & Education 381, generally [para. 42].

Counsel:

Mona Lynch and Cathy Benton, for the appellant;

Ivan G. Whitehall, Q.C., and Paula Taylor, for the respondent.

Solicitors of Record:

Nova Scotia Legal Aid, Halifax, N.S., for the appellant;

Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard on June 25, 1998, before Lamer, C.J.C., L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ., of the Supreme Court of Canada.

On November 26, 1998, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Cory, J. (Lamer, C.J.C., L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Bastarache and Binnie, JJ., concurring) - see paragraphs 1 to 69;

Major, J., dissenting - see paragraphs 70 to 90.