The headline is alarming:
“Vancouver School Teacher Films Students with Hidden Camera”
Workplace misconduct takes on a particular repugnance when the workplace is a school. Still, arbitrators, mediators, workplace investigators, and courts are expected to rationally apply relevant legal principles to all situations.
In that regard, the question of whether students have a reasonable expectation of privacy in the common areas of a school arose following the arrest of a teacher who had used a hidden camera to record videos of female high school students while they were engaged in school-related activities in common areas of the school. Most recordings focused on students’ faces, upper bodies, and breasts.
There are also a multitude of less disturbing, but still important, legal issues that arbitrators, mediators and workplace investigators handle in the context of schools. Some of these issues have evolved over the past few generations and some are still evolving. Perhaps some of the most common, and compelling, include questions such as:
- Do searches of lockers breach student’s expectations of privacy?
- What forms of discipline are teachers authorized to take?
- What can and/or must schools do about students vaping, using e-cigarettes, or smoking tobacco or cannabis?
- Can schools require that students be vaccinated?
I. Student Privacy Issues in Schools
A. Student Lockers
It has been held that, in certain circumstances, the search of a student’s locker is permissible. In R. v. M. (J.), 2012 CarswellBC 1328, 2012 BCPC 126 (CanLII), a student who was subsequently charged with possession of narcotics launched a challenge asserting that the search and seizure of his locker (that resulted in the discovery of cannabis and methamphetamine) violated his Charter right to be free from unreasonable search and seizure. In finding that the locker search did not violate the student’s reasonable expectation of privacy, nor his Charter rights, the court stated:
“In my view, our [legislation] is broad enough, when given a purposive interpretation, to authorize by reasonable inference persons like [the teacher] to search student lockers on the facts of this case.
I find that on June 3rd, 2011 she did have reasonable grounds based on the facts known to her, including her own observations on the morning in question, including at the locker itself and, to a lesser extent, based on what she had been told about the accused [student] at the time of his transfer to her school in or about February 2011, to believe that (the accused student) might be in breach of the school’s zero tolerance code and might be in possession of marihuana.
In my view, [the teacher] acted within the general authority of the above regulation and with an honest and reasonably held belief that there was a likelihood marihuana might be in his locker. I find the search she conducted was reasonable when all the surrounding circumstances set out above are considered.
[Therefore,] [t]he search and following seizure were not illegal and not in breach either of the accused’s s. 7 or s. 8 Charter rights.”
B. Common Areas: R. v. Jarvis, 2019 SCC 10 (“Jarvis”)
i. The Charge: Voyeurism
The teacher caught filming students was another matter altogether. In that case, the teacher was charged with voyeurism under section 162(1)(c) of the Criminal Code. This offence is committed where a person surreptitiously observes or makes a visual recording of another person who is in circumstances that give rise to a reasonable expectation of privacy if the observation or recording is done for a sexual purpose. To be convicted, two questions must be answered in the affirmative:
- whether the subjects were in circumstances that give rise to a reasonable expectation of privacy; and
- whether the accused made the observation or recording for a sexual purpose.
ii. The Analysis: Is There a Reasonable Expectation of Privacy in Common Areas?
For the purposes of section 162(1), circumstances that give rise to a reasonable expectation of privacy are circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred. the Supreme Court of Canada has stated that privacy is not an “all-or-nothing” concept. Being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording. A person may be in circumstances where they can reasonably expect to be the subject of certain types of observation or recording, but not others. Thus, the entire context must be considered. Relevant considerations may include:
- the location the person was in when she was observed or recorded;
- whether the impugned conduct consisted of observation or recording;
- awareness of or consent to potential observation or recording;
- how the observation or recording was done;
- the subject matter or content of the observation or recording;
- any rules, regulations, or policies that governed the observation or recording in question;
- the relationship between the person observed or recorded and the person who did the observing or recording;
- the purpose of the observation or recording; and
- the personal attributes of the person observed or recorded.
iii. The Decision: the Law Applied to the Facts in “Jarvis”
In Jarvis, only the first question was under dispute. In applying the above framework, the Supreme Court observed that the subjects were young and unaware. Certain students were targeted to be recorded. The students were recorded at close range for reasons unrelated to any education or safety-related purpose. The videos focused on intimate body parts. The students were recorded by their teacher, in breach of the relationship of trust that exists between teachers and students, and in contravention of a formal school board policy that prohibited such recordings.
Considering the entire context, the Court found that the students’ circumstances did give rise to a reasonable expectation that they would not be recorded in the manner that they were. The teacher was found guilty of voyeurism and remitted for sentencing.
II. Up in Smoke? Discipline and Anti-Smoking Policies in Schools
a. Authorized Forms of Discipline
The permissible forms of punishment and discipline available to teachers in BC are set out by the School Act, RSBC 1996, c 412 (“School Act”). Section 76(3) of the School Act states that the “discipline of a student while attending an educational program made available by a board or a Provincial school must be similar to that of a kind, firm and judicious parent, but must not include corporal punishment”. (Emphasis added).
A failure to meet the minimum level of punishment required by the standard appears to be part of the BH Human Rights Tribunals decision in Jubran v. Board of Trustees, 2002 BCHRT 10 (CanLII) where, it was concluded that the school board had failed to sufficiently accommodate a student who had been verbally harassed by his classmates (ie. failed dole out punishment in order to meet the standard of a judicious parent).
A variety of behaviours have been found to constitute a violation of the standard by virtue of imposing excessive punishment. For example, the Commissioner for Teacher Regulation under the Teachers Act, SBC 2011, c 19 (and its predecessor regulatory body, the BC College of Teachers, under the now-repealed Teaching Profession Act, RSBC 1996, c 449) have sanctioned/reprimanded teachers for disciplinary behaviour including the following;
– humiliating students, ex:
- forcing students to perform a “I’m a little teapot” in front of class;
- having students stand in garbage;
- forcing a student to chew on adhesive-tape;
- degrading students, ex.
- rhetorically asking students: “did a Martian zap your brain,”
- commenting that “chihuahuas are easier to teach”;
– demonstrating anger in front of students, ex.
- slamming books;
– using profanity at and/or in front of students;
– using frightening/intimidating disciplinary techniques, ex.
- hitting a desk in a forceful way;
- telling students to “shut up”;
– verbally abusing/threatening students, ex.
- name-calling (including racial or other derogatory epithets);
- threatening to reduce marks as discipline;
– physically contacting/abusing students, ex.
- physically restraining students;
- striking a student with an open palm to the head;
- requiring students to kneel on the floor;
- requiring students to maintain a position for a number of minutes;
- refusing to let students use the washroom.
Additionally, courts and arbitrators have explored what actions are/are not those of a “judicious parent”. In British Columbia Public School Employers’ Assn., Maple Ridge-Pitt Meadows, District No. 42 and BCTF, Maple Ridge Teachers’ Assn., Re, 2009 CarswellBC 4340, a teacher (represented by their union) filed a grievance after being terminated after allegedly having “spoke[n] unprofessionally to a student, hit[ting] a student and pull[ing] his clothing over his head” in response to two high-school students’ respective misbehaviour. In that case, the arbitrator upheld the teacher’s termination as appropriate.
Another instance exploring the ‘judicious parent’ standard involved a situation wherein an elementary student had kicked her classmates and was then made to stand in front of class while her teacher asked for student volunteers to kick her in return (School District No. 41 (Burnaby) and BCTF (Crombie), Re, 2004 CarswellBC 3913,  B.C.C.A.A.A. No. 225). The teacher was transferred, suspended, and required to take a course or mentorship on conflict resolution/classroom management but filed a grievance maintaining that this was a form of corrective role-play. The arbitrator upheld the suspension and course-requirement stating that the punishment was not that of a judicious parent.
It is noteworthy that the feelings of the students involved in these situations are typically cited as an important consideration when decision-makers have contemplated teacher sanctions for inappropriate forms of discipline.
b. The Use of Vapes, E-Cigs, Tobacco and Cannabis
The requirement for schools to enforce prohibitions against the use of tobacco, vapes, and similar items is contained in the Tobacco and Vapour Products Control Act, RSBC 1996, c 451 (the “T&VPCA”). The relevant portions of the T&VPCA are as follows:
“No tobacco or vapour product use on school property
…(2) … a person must not smoke or use tobacco, or hold lighted tobacco, in or on school property.
… (3.1) A person must not use an e-cigarette, or hold an activated e-cigarette, in or on school property.
(4) Subject to subsection (5), if any person contravenes subsection (2) or (3.1), the board, superintendent and principal each are deemed to have contravened that subsection and each is liable for the contravention.
(5) It is a defence to a charge under subsection (4) if the board, superintendent or principal demonstrates that each exercised reasonable care and diligence to prevent the contravention.”
In other words, not only are students not allowed to smoke/vape on school property, no person – teacher, visitor or otherwise – is allowed to do so. Furthermore, higher-level administrative personnel are liable for any infractions (unless they make demonstrable efforts at prevention).
III. Schools and the Anti-Vaxx Movement
In the wake of a recent measles outbreak, many jurisdictions are revisiting the current ability for schools to refuse enrollment of un-vaccinated children. Recently, a Global News story (Zussman, 26 February 2019) confirmed that the BC Ministry of Health is working towards making enactments that would make vaccination mandatory for school registration.
The move provides an interesting contrast to the very old case of Clowes v. Edmonton School District No. 7 (1915), 9 W.W.R. 372 (Alta. S.C. (App. Div.)) wherein a health board’s prohibition of school attendance by unvaccinated children was held to be ultra vires (meaning the health board did not have jurisdiction to create such a requirement). It is noteworthy that the case predated the catastrophic 1918 flu as well as today’s anti-vaxx movement.
The School Act permits reasonable, non-corporal punishment of students by teachers which “must be similar to that of a kind, firm and judicious parent”. Known in short as the ‘judicious parent’ standard, this has been interpreted as precluding humiliating and degrading punishments for students as well as intimidating and verbally profane behaviour by teachers during the course of discipline. Additionally, courts have upheld the ability of teachers to search student lockers assuming reasonable circumstances justify doing so.
The T&VPCA prohibits any person from using tobacco/vapour products on school property. School boards, superintendents and principals will be liable for violations unless they demonstrate having taken reasonable care and diligence to prevent same.
While all employees and employers have duties (ex. good faith and fidelity, payment for work, etc.) some occupational positions involve a special, higher level duty called fiduciary duty. This duty is one that involves an ethical, trust-based component. Teachers are among the professionals which have been held to have a fiduciary duty (to their students), and so – in addition to the shock and horror of the behaviour in Jarvis – there is also an increased sense of violation. The Supreme Court noted this position of trust in its discussion of whether the students in that case had a reasonable expectation of privacy. It would make sense that a breach of fiduciary duty may be a factor in sentencing as well.
Neil Hain has experience as an arbitrator, mediator, and workplace investigator. If you have questions about how a given legal principle applies in the context of a school, please contact us.