R. v. M.R.M., (1997) 159 N.S.R.(2d) 321 (CA)

• Judge: Chipman, Roscoe and Pugsley, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: April 01, 1997
• Jurisdiction: Nova Scotia
• Citations: (1997), 159 N.S.R.(2d) 321 (CA)

R. v. M.R.M. (1997), 159 N.S.R.(2d) 321 (CA);

    468 A.P.R. 321

MLB headnote and full text

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

(C.A.C. No. 127861)

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

Nova Scotia Court of Appeal

Chipman, Roscoe and Pugsley, JJ.A.

April 1, 1997.

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, in a judgment not reported in this series of reports, 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 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).

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 Nova Scotia Court of Appeal held that there was no unreasonable search and seizure - First, students had a significantly lower "reasonable expectation of privacy" in the school environment than in a non-school environment - The vice-principal had a statutory duty (Education Act, s. 54) to ensure there was order and discipline in the school - The search, conducted pri­vately and not overly intrusive, was rea­sonably related to the objective of main­taining order and discipline - The R.C.M.P. officer's participation was limited to accepting control of the marijuana once it was found - The vice-principal was not acting as a state agent - See paragraphs 28 to 107.

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 - 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 - See paragraphs 108 to 127.

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 Nova Scotia Court of Appeal assumed, without deciding, that the level of governmental involvement re­specting schools and students was suffi­cient to make the Charter applicable - See paragraphs 20 to 27.

Education - Topic 5283

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

Cases Noticed:

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161, refd to. [para. 31].

Comité paritaire de l'industrie de la chemise v. Potash et Sélection Milton, [1994] 2 S.C.R. 406; 168 N.R. 241; 61 Q.A.C. 241; 91 C.C.C.(3d) 315, refd to. [para. 32].

R. v. Fitzpatrick (B.) (1996), 188 N.R. 248; 65 B.C.A.C. 1; 106 W.A.C. 1; 102 C.C.C.(3d) 144 (S.C.C.), refd to. [para. 32].

R. v. J.M.G. (1986), 17 O.A.C. 107; 29 C.C.C.(3d) 455, leave to appeal refused (1987), 76 N.R. 78; 21 O.A.C. 239 (S.C.C.), refd to. [para. 46].

New Jersey v. T.L.O. (1985), 105 S. Ct. 733, refd to. [para. 49].

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. 59].

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; 38 C.R.R. 252; 18 C.E.R. 227; 55 D.L.R.(4th) 673; 67 O.R.(2d) 63, refd to. [para. 63].

British Columbia Securities Commission v. Branch and Levitt (1995), 180 N.R. 241; 60 B.C.A.C. 1; 99 W.A.C. 1; 38 C.R.(4th) 133 (S.C.C.), refd to. [para. 64].

R. v. Spidell (A.W.) (1996), 151 N.S.R.(2d) 290; 440 A.P.R. 290 (C.A.), refd to. [para. 84].

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, refd to. [para. 90].

R. v. Colarusso (1994), 162 N.R. 321; 69 O.A.C. 81; 87 C.C.C.(3d) 193 (S.C.C.), dist. [para. 97].

R. v. Lenihan (O.E.) (1997), 158 N.S.R.(2d) 216; 466 A.P.R. 216 (C.A.), refd to. [para. 111].

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. 116].

R. v. Guberman (1985), 37 Man.R.(2d) 219; 23 C.C.C.(3d) 406 (C.A.), refd to. [para. 126].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 28]; sect. 10(b) [para. 108]; sect. 32(1) [para. 21].

Education Act, R.S.N.S. 1989, c. 136, sect. 2(n) [para. 43]; sect. 33(2) [para. 40]; sect. 54 [para. 42].

Education Act Regulations (N.S.), General Regulations, sect. 3(9) [para. 44].

Young Offenders Act, R.S.C. 1985, c. Y-1, sect. 3(1)(e) [para. 33].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (3rd Ed. 1992), vol. 2, p. 34-13 [para. 25].

Mackay, A. Wayne, Education law in Canada (1984), p. 40 [para. 35].

Mackay, A. Wayne, Students as Second Class Citizens under the Charter (1987), 54 C.R.(3d) 390, generally [para. 25].

Stuart, Don, Charter Justice in Canadian Crimi­nal Law (2nd Ed. 1996), p. 193 [para. 105].

Counsel:

Paula Taylor, for the appellant;

Mona Lynch, for the respondent.

This appeal was heard on January 23, 1997, before Chipman, Roscoe and Pugsley, JJ.A., of the Nova Scotia Court of Appeal.

On April 1, 1997, Pugsley, J.A., delivered the following judgment for the Court of Appeal.