Toronto stu­dents win chal­lenge over prom dance breath­a­lyzer

Schools’ author­ity limited

Windsor Star - - CANADA / WORLD - 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.

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