A September 2020 Ontario Court of Justice ruling sheds new light on reasonable search standards in the interests of safety.
On June 27, 2019, high school student Maria Calabretta stood in a security line to get into her prom. School administrators were checking everyone’s bag for weapons, alcohol and drugs. The mandatory search was to ensure students’ safety rather than to investigate criminal activity.
When she reached the front of line, Ms. Calabretta agreed to have her bag searched by the school’s vice-principal. Visible in the bag was a small section of straw. Further searching revealed a baggie containing two grams of cocaine. The vice principal handed the baggie to an attending police officer and Ms. Calabretta was arrested.
The Ontario Court of Justice ruled that a mandatory search by a school official, though lacking reasonable grounds, had not violated the student’s right to freedom from unreasonable search and seizure under section 8 of the Canadian Charter of Rights and Freedoms. The ruling, issued by Justice Ghosh, is the latest development in case law on moderated privacy expectations in school settings.
Several factual details became relevant at trial. The mandatory search policy was put in place by the school, not the police. The school only searched students’ property. The prom ticket, which prohibited drugs and alcohol, did not specify that mandatory search was a condition of entry. Each search typically lasted five to 10 seconds. The police were present, but not involved in the search process. The vice-principal stated that she was not aware of any student refusing the search, but that resistance would likely have resulted in them asking the student to leave.
The main issue at trial was whether there had been a violation of Ms. Calabretta’s constitutional freedom from unreasonable search and seizure. Ms. Calabretta claimed there had, saying that a mandatory search policy for all attendees lacked reasonable grounds.
Section 8 protections
Section 8 of the Charter guarantees freedom from unreasonable search and seizure. Its purpose is to safeguard an individual’s “reasonable expectation of privacy,” a concept used for determining whether a search has taken place.
A person’s reasonable expectation of privacy is deliberately context-specific. In school settings, students have a diminished privacy expectation due to the statutory duty of school officials to ensure the safety of students. This moderated constitutional standard, which applies to environments both on and beyond school premises, was clearly set out by the Supreme Court of Canada in R v M(MR):
 … [T]he reasonable expectation of privacy of a student in attendance at a school is certainly less than it would be in other circumstances. Students know that their teachers and other school authorities are responsible for providing a safe environment and maintaining order and discipline in the school. They must know that this may sometimes require searches of students and their personal effects and the seizure of prohibited items. It would not be reasonable for a student to expect to be free from such searches. A student’s reasonable expectation of privacy in the school environment is therefore significantly diminished.
The moderated standard of M(MR) has led to questions about the correct assessment of reasonableness in the context of school settings. In the present case, there was no disputing that Ms. Calabretta had a reasonable expectation of privacy in the contents of her bag. Her case hinged on whether the mandatory search was reasonable under the circumstances. In ruling that it was, the court clarified standards for school searches that include the question of whether reasonable grounds are necessary, the degree of a search’s invasiveness and the role of voluntary consent.
Do school officials require reasonable grounds to search students’ property? The Supreme Court in M(MR) was clear that, in general, a search of a student by school officials is permissible when “there are reasonable grounds to believe that a school rule has been or is being violated, and that evidence of the violation will be found in the location or on the person of the student searched.”
Ms. Calabretta’s defence focused on the fact that the mandatory search lacked reasonable grounds. They argued that the school did not justify the search policy with specific or informed suspicions about individual students. The court agreed with this point, but insisted that the mandate to ensure a safe environment won out. In his decision, Justice Ghosh pointed to other familiar situations in which safety concerns moderate the boundaries of reasonableness:
 … The Supreme Court in M.(M.R.) articulated a somewhat helpful analogy that when people cross the border or board a plane, everyone accepts that they will be searched or subjected to intrusive inquiries about property where a far lesser expectation of privacy is engaged. Any related seizures are generally Charter-protected. Perhaps this is an inelegant analogy, but like a voluntarily attended prom party, you cannot even enter some amusement parks in Canada without having your bags searched.
The court might have added to its analogies other events where bag searches are both mandatory and uncontroversial, such as music festivals and nightclubs. Those scenarios, according to the court, uphold a clear message: while reasonable grounds provide an important starting point for the assessment of school searches, they do not impose an absolute standard. The correct interpretation of M(MR), said Justice Ghosh, was a context-specific approach to reasonableness attentive to all circumstances:
 … I accept the direction in M.(M.R.) that generally school authorities will require “reasonable grounds” to search and seize items from a student or her property. However, the court also acknowledged in discussing the reasonable grounds standard applicable to school authorities … that “Searches undertaken in situations where the health and safety of students is involved may well require different considerations … All the circumstances surrounding a search must be taken into account in determining if the search is reasonable.” Despite the absence of reasonable grounds, the mandatory security search of bags at a prom is reasonable in all the circumstances.
The circumstances in Ms. Calabretta’s case include the comparatively unobtrusive nature of the bag search. There were no full-body searches and the court considered it a “trite point of law” that bag searches are decisively less intrusive than the seizure of bodily samples.
As well, school officials at the prom did not look at students’ cell phones, a variety of property search that case law has deemed comparatively more intrusive and oftentimes less reasonable.
Absence of a waiver
The court was similarly unsympathetic that Ms. Calabretta had not waived her constitutional right to be free from unreasonable search and seizure. The court explained that waivers become relevant typically under coercive circumstances – for example, police stops for impaired driving – which involve forced compliance with state-sanctioned interventions.
Ms. Calabretta attended prom voluntarily. She remained in “an obvious security line” aware that she would soon be subject to a mandatory search by a school official. Unlike the student in M(MR), whose search was conducted in a principal’s office with police present, Ms. Calabretta had the option to leave the line, get rid of the drugs and return to prom. The expected search yielded two grams of cocaine, which were immediately given to an off-duty police officer. Ms. Calabretta’s consent to a search that lacked a coercive element was an important factor in the court’s rejection of a section 8 violation.
The case of Maria Calabretta is the latest example of the courts dealing with the diminished expectation of privacy in school settings. The decision clarifies the boundaries of reasonable search practices in the following ways:
- Despite the absence of reasonable grounds, the mandatory search of bags at a prom is reasonable due to overriding interests of student safety.
- The mandatory search is reasonable in part because it is a search of property, not of persons, and is comparatively unobtrusive. The seizure of body samples or searching cellphones is subject to different standards.
- A student’s voluntary attendance at a prom, and the lack of coercion or police involvement, remain important considerations in assessing reasonableness.
This article is authored by Nick Whitfield, Summer Law Student.