Toronto students win challenge over prom dance breathalyzer
Schools’ authority limited
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.
Simon Gillies, left, and Brett Gorski have won a charter challenge of their Toronto school’s breathalyzer requirement for students attending their prom.