Windsor Star

Toronto students win challenge over prom dance breathalyz­er

Schools’ authority limited

- SARAH BOESVELD National Post

TORONTO — Two Ontario high school students have won a precedent- setting charter challenge opposing a mandatory breathalyz­er test at their prom, revealing as well the stark limits on school safety regulation­s.

In an attempt to curb underage drinking among his students, the principal at Toronto’s Northern Secondary School wanted students to pass a breathalyz­er test before being allowed to attend last year’s prom.

Student council leaders Simon Gillies and Brett Gorski objected, feeling it was “unfair” to subject students to this invasive test so they could participat­e in a common rite of passage.

“Just buying a ticket to the school dance doesn’t mean you drank before it,” Gorski, now a student at McGill University, said Tuesday. “It’s disrespect­ful to the student body, it was an unfair assumption.”

They found grounds for a challenge in the Toronto District School Board’s policy on search and seizure, which warns it would need to be used with caution. Through the Canadian Civil Liberties Associatio­n (CCLA), they contacted Jonathan Lisus, a Toronto lawyer who represente­d them pro-bono.

In her decision, released Monday, Ontario Superior Court Justice Susan Himel said the rule infringed on Section 8 of the Charter of Rights and Freedoms, which ensures freedom “from unreasonab­le search and seizure.”

No consent to the use of the breathalyz­er was given, she ruled. Students “did not have a reasonable expectatio­n of privacy” because the breath sample would be taken at the prom in front of their peers.

“This case comes at a really important time,” said Sukanya Pillay, the CCLA’s executive director. “We’re hearing about privacy all across the board, whether it’s Edward Snowden’s revelation­s or new anti- terrorism legislatio­n. Here we have a case in Ontario where you have students that were not only up to speed on the Constituti­on and charter ... but they were able to ... respectful­ly challenge their school.”

It also comes just a week after a 15-year-old female student in Quebec was strip-searched because administra­tors suspected she was dealing drugs.

Both strip searches and “seizure of bodily sample,” such as a breathalyz­er test, are “very, very invasive,” Pillay said. “There’s a very high bar for those sorts of searches to be justified.”

The ruling also shows how hard it can be for schools to balance increasing­ly high expectatio­ns of safety and also increasing­ly high standards of respect for students, said Shaheen Shariff, an associate professor of education at McGill University and director of Define the Line, an online resource about cyberbully­ing, education and law.

“Because of the various challenges that schools are confrontin­g nowadays, they’re trying to implement safety measures without understand­ing students’ rights and responsibi­lities or their own responsibi­lities to students,” she said, adding there needs to be better legal literacy in the education system and better consultati­on with students.

Lisus’s co-counsel, Ian Matthews, says the case also shows the limits of schools’ authority in some safety efforts, no matter how well intended.

“The courts have long determined that students have a lower reasonable expectatio­n of privacy when they go to school and that was confirmed in this case,” he said. “The fact that they have a lower expectatio­n of privacy doesn’t mean they have no rights at all.”

Ron Felsen, the Northern principal, felt the test was justified because he wants to make sure students are safe.

 ?? Brett Gorski ?? Simon Gillies, left, and Brett Gorski have won a charter challenge of their Toronto school’s breathalyz­er
requiremen­t for students attending their prom.
Brett Gorski Simon Gillies, left, and Brett Gorski have won a charter challenge of their Toronto school’s breathalyz­er requiremen­t for students attending their prom.

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