Breath Samples at Prom an Unreasonable Search

High school administrators have a challenging burden of ensuring the health and safety of children in their schools. High school students often get into trouble, including using alcohol before they are of the age of majority.

Although the high school prom is supposed to be a memorable occasion, many high school students only recall a haze due to drinking around and surrounding this event. One high school principal sought to use mandatory breathalyzers at his prom, but an Ontario Superior Court of Justice ruling by Justice Himel in Simon Gillies et al v. Toronto District School Board found that this was a violation of section 8.

Administrators of high schools are empowered under ss. 265(1)(a) and 265(1)(j) of the Education Act and corresponding regulations to maintain discipline and give attention to the health of students. The Toronto District School Board (TDSB) Board Code of Conduct prohibits the use of alcohol on school premises and school-related events.

Although the TDSB Operational Procedure PR.524 SCH (“TDSB Search and Seizure Procedure”) provides some instruction for searching students who may be under the influence of alcohol, it also outlines how school authorities may search a student if they have reasonable grounds to believe a student is under the influence of alcohol at a school event. It sets out what may constitute reasonable grounds for a search or seizure and cautions that “random or arbitrary searches on groundless suspicion will likely be in contravention of the Charter.” It also states in the TDSB Search and Seizure Procedure that searches of students should be conducted sensitively in a minimally intrusive manner.

 The school attempted to justify the use of breathalyzers using social science evidence:

The school also submitted some news articles of problems at high school proms due to alcohol, as well as an American article by Jonathan Motto, “The Newest Prom Accessory: Breathalyzer Tests, A Discussion of the Fourth Amendment Implications Raised by Mandatory Breathalyzer Tests at Prom.” Justice Himel summarized the article’s findings,

[27] After reviewing the jurisprudence, Jonathan Motto notes that requiring students who exhibit signs of intoxication to submit to a breathalyzer would fall within the reasonableness standard upheld by the court in T.L.O., supra at 347-48, but then highlights the constitutional concerns invoked by mandatory breathalyzer tests for admission to prom. They include that mandatory breathalyzer testing is done in front of a student’s peers, who will be aware of the results of the test, that the test intrudes on a student’s privacy, that prom takes place often on physical premises that are not at the school, that whether the testing is administered by school personnel or police may affect the reasonableness of the infringement, that attending prom may be considered voluntary but in essence “is an iconic moment in high school that is built-up throughout the entire school year” (at p. 8). Finally, the author questions whether the intent of the policy to combat alcohol abuse and drunk driving are accomplished. He arrives at the conclusion that the courts would apply the balancing test outlined in the T.L.O. decision and subsequent cases and would likely uphold mandatory breathalyzer test policies for admission to prom for the following reasons: because notice of the use of the mandatory breathalyzer testing would be given and the attendance at the event is voluntary, there is a reduced expectation of privacy; the courts may view the provision of a breath sample not to be overly intrusive; and the government has an immediate and pressing concern about underage drinking. He opines that in balancing the factors, the court would likely consider the infringement on the right to be free from unreasonable search and seizure to be outweighed by the greater need to deter high school students from underage drinking, and that the mandatory breathalyzer testing to enter prom will likely withstand a constitutional challenge. He recommends that school districts take care in devising polices to ensure that the rights of students are protected as much as possible.
[emphasis added]

Other American decisions in Vernonia School District 47J v. Acton and Board of Education of Independent School District No. 92 of Pottawatomie County v. Earl have upheld random drug testing based on the diminished expectation of privacy and the volunteer nature of the extracurricular activities. However, only one American case, Anable v. Ford, addresses the the use of breathalyzers in the school context. Given the constitutional differences between the jurisdictions, Justice Himel did not find the American jurisprudence to be particularly relevant here.

Justice Himel ruled that the Charter applies to the TDSB. This is similar to previous decisions, such as the Pridgen decision in the university context, which has been applied to understand that schools must use proportionality with any discipline applied.

Despite an awareness of the students that breathalyzers may be used, and the non-compulsory nature of the event, the students did not have a meaningful choice around the use of breathalyzers. The students had a reasonable expectation of privacy in their breath sample, but had a diminished expectation of privacy given the context of a school-sponsored event. However, the highly intrusive nature of breathalyzers, which reveals intimate lifestyle details and choices through bodily samples, still engaged s. 8.

Justice Himel did not agree that prior judicial authorization should be required here. Justice Cory R. v. M.R.M. stated that schools should have flexibility to ensure schools are safe,

45 In my opinion the search of a student by a school authority is just such a situation where it would not be feasible to require that a warrant or any other prior authorization be obtained for the search. To require a warrant would clearly be impractical and unworkable in the school environment. Teachers and administrators must be able to respond quickly and effectively to problems that arise in their school. When a school official conducts a search of or seizure from a student, a warrant is not required. The absence of a warrant in these circumstances will not lead to a presumption that the search was unreasonable.
[emphasis added]

However, the school was unable to provide evidence that a school policy, such as drinking alcohol at the event, was going to be broken, or demonstrate a reasonable belief on the record that this was to occur. A reasonable belief requires more than a generalized suspicion.

Additionally, the application of the reasonable search test in R. v. Collins is applied differently in the educational context. Justice Cory in MRM stated,

54 The factors to be considered in determining whether a search conducted by a teacher or principal in the school environment was reasonable can be summarized in this manner:

  1. The first step is to determine whether it can be inferred from the provisions of the relevant Education Act that teachers and principals are authorized to conduct searches of their students in appropriate circumstances. In the school environment such a statutory authorization would be reasonable.
  1. The search itself must be carried out in a reasonable manner. It should be conducted in a sensitive manner and be minimally intrusive.
  1. In order to determine whether a search was reasonable, all the surrounding circumstances will have to be considered.

 

Despite the authority provided to the school, the search in this case would not be carried out in a reasonable manner. Students would be lined up in front of their peers in a way that would be humiliating and demeaning. The search could not be justified because there was no evidence of a widespread health problem, despite the social science evidence.

Maintaining the health and safety of students is a pressing and substantial objective, but there was no rational connection to an established problem. The Education Act and its regulations did not authorize the use of breathalyzers, and its use is not minimally impairing.

Her conclusion was as follows:

[166] …

(1) The Charter applies to school authorities at off-site school events such as a prom.

(2) Section 8 is engaged when school authorities subject students to mandatory breathalyzer testing.

(3) The standard that applies when reviewing the seizure of breath samples by school officials is that articulated in M.R.M.: 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.

(4) The administering of a mandatory breathalyzer test as a pre-condition to entry at the school prom is inconsistent with the TDSB Code of Conduct, the TDSB Search and Seizure Procedure and the powers of school authorities under the Education Act.

(5) The seizure of breath samples is unreasonable and a violation of section 8.

(6) The violation of section 8 is not saved by section 1.

Comments

  1. I don’t say that the decision is wrong, but how humiliating or demeaning is it to line up for a breathalyzer test if every other person attending the prom is also doing so? Surely it would be more so to be pulled off the dance floor because of an individualized suspicion, but that seems to be OK in law.