Breath­a­lyzer pol­icy pulled

North­ern Sec­ondary School stu­dents suc­cess­fully fight po­ten­tially un­con­sti­tu­tional rules this year, but next year an un­known

Midtown Post - - News Focus - by Neil Eti­enne

Toronto high school stu­dents seem to have learned a valu­able les­son about what wheels get the grease.

Fol­low­ing an early May de­ci­sion by North­ern Sec­ondary School prin­ci­pal Ron Felsen to im­ple­ment a breath­a­lyzer pol­icy for the school’s May 29 prom, stu­dents, led by stu­dent coun­cil pres­i­dent Brett Gorski, sought as­sis­tance ar­gu­ing the de­ci­sion with the Cana­dian Civil Lib­er­ties As­so­ci­a­tion and even­tu­ally Toronto lawyer Jonathan Lisus. It has proven a suc­cess­ful tac­tic for the time be­ing, al­though the is­sue is still headed to court in the fall.

Lisus served the Toronto District School Board and the prin­ci­pal with pa­pers dur­ing the week of May 20, seek­ing to have the pol­icy over­turned at the On­tario Su­pe­rior Court of Jus­tice.

On May 23, Lisus con­firmed Felsen had de­cided to re­lent on the pol­icy, at least tem­po­rar­ily, due to a lack of time to for­mu­late a proper de­fence for the courts. Lisus said the is­sue is still headed to the courts in Septem­ber, but par­ties have agreed there will be no such test­ing this year at North­ern.

Prin­ci­pal Felsen in­tro­duced the pol­icy fol­low­ing a sup­port­ive par­ent coun­cil meet­ing in late April, but af­ter­wards it be­came the sub­ject of op­po­si­tion from stu­dents, some con­cerned par­ents, the Cana­dian Civil Lib­er­ties As­so­ci­a­tion and even­tu­ally Lisus.

Felsen said he had re­searched other Toronto high schools with sim­i­lar poli­cies, such as Malvern Col­le­giate In­sti­tute, and de­cided to im­ple­ment it at his school.

“We treat your chil­dren’s safety as se­ri­ously as you do, and we can con­tinue to hold high school for­mals only as long as our stu­dents com­ply with our re­quire­ments re­gard­ing drugs and al­co­hol,” he wrote to par­ents when an­nounc­ing his de­ci­sion.

“De­spite our proac­tive ef­forts in the past to pre­vent stu­dents from con­sum­ing al­co­hol prior to the prom … al­co­hol has con­tin­ued to be a prob­lem at the last num­ber of school dances and school for­mals.”

He has since ex­plained that, in or­der to en­sure stu­dent safety, it was the best choice for his school. The pol­icy was to de­mand that all par­tic­i­pants in North­ern’s prom must pass a breath­a­lyzer test be­fore gain­ing en­try.

“We’re in the field of educ­tion, so I have a re­spon­si­bil­ity. It’s go­ing to be a great evening, and they [stu­dents] will learn it’s pos­si­ble to have a great prom to re­mem­ber for all the right rea­sons and with­out al­co­hol,” Felsen said.

Toronto District School Board spokesper­son Ryan Bird said the board and trustees leave such de­ci­sions up to the prin­ci­pals and staff at any given school and do not cur­rently have any pol­icy in place re­gard­ing breath­a­lyz­ers. He added that cur­rently the board is not en­ter­tain­ing cre­at­ing one.

“Be­cause schools are dif­fer­ent, it’s what­ever works best for the school. We leave that up to

Our own prin­ci­pal’s fears should not cause prom at­ten­dees to be treated as guilty un­til proven in­no­cent.”

them,” he said, adding that, al­though he does not know which schools within the TDSB have sim­i­lar poli­cies, of about 100 schools, “only a hand­ful have them [breath­a­lyzer poli­cies].”

At Lawrence Park Col­le­giate, prin­ci­pal Lil­lian Jo­vanovic said they do not have any such pol­icy in place but added, “We’re talk­ing about it, not for this year, but maybe for the fu­ture.”

North Toronto Col­le­giate prin­ci­pal Joel Gorenkoff said his school also does not have the pol­icy, and York Mills Col­le­giate vi­ceprin­ci­pal Mira Wong con­firmed her school does not.

Earl Haig Sec­ondary School did not re­turn calls.

In ad­di­tion, For­est Hill Col­le­giate, where famed civil rights lawyer Clay­ton Ruby grad­u­ated, does not have the pol­icy.

Ruby said ar­gu­ing to hold a blan­ket breath­a­lyzer test for a school’s stu­dents would be dif­fi­cult to de­fend at court.

“A pub­lic high school is govern­ment; govern­ment is ruled by the Char­ter [of Rights]; the Char­ter pro­tects pri­vacy, and un­rea­son­able in­fringe­ments of pri­vacy are pro­hib­ited,” he ex­plained.

“I would think this [pol­icy] is un­con­sti­tu­tional.”

The Cana­dian Civil Lib­er­ties As­so­ci­a­tion had con­tacted the school, at the be­hest of the stu­dents, via a let­ter re­quest­ing that Felsen re­con­sider the pol­icy, also cit­ing it as “un­con­sti­tu­tional.”

“We fully rec­og­nize that schools have an obli­ga­tion to pro­vide a safe and se­cure learn­ing en­vi­ron­ment and have no hes­i­ta­tion sup­port­ing that goal. School of­fi­cials also, how­ever, have an obli­ga­tion to abide by the lim­its set out in the Ed­u­ca­tion Act and to re­spect Char­ter rights of their stu­dents, in­clud­ing the right to be free from un­rea­son­able search and seizure,” as­so­ci­a­tion gen­eral coun­sel Sukanya Pil­lay and pro­gram di­rec­tor Abby Desh­man wrote to Felsen, who still de­clined to al­ter the pol­icy af­ter re­ceiv­ing the let­ter in mid-May.

North­ern high’s stu­dent coun­cil pres­i­dent Gorski, 18, and her peers were hope­ful that the pol­icy would be over­turned.

She is named as one of the plain­tiffs that Lisus will rep­re­sent when the is­sue reaches the Su­pe­rior Court bench in the fall.

He filed against the school board and Felsen in an at­tempt to halt the test­ing and said that, if he was suc­cess­ful, it could mean set­ting a prece­dent for other On­tario schools seek­ing to im­ple­ment a sim­i­lar pol­icy.

In his ap­pli­ca­tion to the court, Lisus called the pol­icy “war­rant­less, and [it] is a pre­sump­tively un­rea­son­able search.”

“The re­spon­dents [the TDSB and school of­fi­cials] lack rea­son­able grounds to be­lieve the ap­pli­cants [the stu­dents], or any other prom at­tendee, will vi­o­late any school rule at the prom,” Lisus wrote in his ap­pli­ca­tion to court.

In her af­fi­davit to the court, Gorski said her ex­pe­ri­ence with North­ern has been “very pos­i­tive; in many ways, it has de­fined my ex­pe­ri­ence as a teenager.”

In the af­fi­davit, Gorski said she and her fel­low stu­dents “de­serve the op­por­tu­nity to at­tend our prom — the sym­bolic end to our years as high school stu­dents and our tran­si­tion into adult­hood — with­out be­ing forced to stand in line wait­ing for our turn to blow into a breath­a­lyze.”

“Our own prin­ci­pal’s fears should not cause prom at­ten­dees to be treated as guilty un­til proven in­no­cent by Mr. Felsen and the staff of North­ern,” she said.

Gorski said al­most all of the stu­dents were op­posed to the blan­ket test­ing, al­though it didn’t seem to af­fect ticket sales to the event, held at the Eglin­ton Grand.

(Top left) Lawyer Clay­ton Ruby says a breath­a­lyzer pol­icy is un­con­sti­tu­tional; (bot­tom left) lawyer Jonathan Lisus will ar­gue that point in court against the Toronto District School Board, North­ern Sec­ondary School (right) and prin­ci­pal Ron Felsen

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