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Legal considerations

The following outlines common legal considerations associated with alcohol and other drug use in schools. Reference is made to specific legislation, relevant court decisions, and other sources of information. If school personnel are in doubt about an appropriate behaviour or corresponding liability, school administration or legal counsel should be consulted.


The fundamental legal rights of every citizen have received considerable attention over the last five years. The Canadian charter of rights and freedoms now provides a mechanism for the legal review of individual behaviour and actions by defining fundamental legal principles. These principles apply to the right of schools to control and regulate students; the civil liability of schools and teachers; and the social and legal rights of minors.

Because experience with charter interpretation is new, legal precedents with respect to dealing with student behaviour are rudimentary at this time. But schools and school boards have a responsibility to students, parents, and the community to develop clear, written policies for student behaviour. Reasonable rules, reasonably communicated and enforced, will lessen the risk of court challenges to school authority.

Court decisions are based on case interpretation from the perspective of common law precedent. That is, judges make decisions based upon the particular circumstances of a case. These decisions then become part of the body of "common law," or legal examples, which are followed by other judges in deciding similar cases. In this way, the law gains certainty in determining acceptable or reasonable behaviour or actions. While many actions and behaviours have not yet been conclusively defined as illegal or acceptable, a general sense of appropriate behaviour can be gained from legal developments.

There are several key pieces of legislation which have an impact on the teacher-student relationship. The charter, the criminal code of Canada, the young offenders act, and Manitoba's public schools act and child and family services act all contain provisions dealing with children and their relationship to those who supervise them. Other acts, such as the Manitoba liquor control act, and the federal narcotics control act and food and drug act relate specifically to controlled substances which are subject to abuse by students.

The following outlines common legal considerations associated with alcohol and other drug use in schools. Reference is made to specific legislation, relevant court decisions, and other sources of information. If school personnel are in doubt about an appropriate behaviour or corresponding liability, school administration or legal counsel should be consulted.


Searches

Canadian laws pertaining to searches are applied according to whether a search is of a person, or of an object or location. Common sense and reasonableness are the watchwords in deciding to search and the manner in which a search is conducted.

Section 8 of the charter states: "Everyone has the right to be secure against unreasonable search or seizure." The key word in this provision of "Unreasonable," Canadian and British common law use the "reasonable man" test to determine civil liability, and apply the word "unreasonable" to many different behaviours and actions.

The courts have long understood that it is impossible to define the scope of every human activity, and so the test of "reasonable belief and prudent behaviour" has evolved. Although a clear and unequivocal definition of what is "reasonable" cannot be given, behaviour should be governed by accepted actions and common sense. If a teacher has doubts, or questions the reasonableness of an action to correct student behaviour, the teacher should not act before consulting the school principal.

To date, courts have not interfered with schools' and teachers' traditional roles in Canada. Courts have interpreted "unreasonable" behaviour and actions in a manner that has maintained the customary authority schools and teachers have in relation to their students. For example, in a recent Ontario case, the court was asked to review the actions of a school principal in searching a student for drugs. The court's decision was based on the recognition in law of principals and teachers as persons in authority.

In addition to powers related to the administration of education, society has granted teachers special authority under the Criminal Code to exercise reasonable force and discipline on students. These powers must be used in conjunction with school Activities. Teachers are not entitled to search students or their belongings outside of their sphere of authority and responsibility.


R. vs. J.M.G., 1986, Ontario

(Note: "R" is an abbreviation for "Regina" and means a crown attorney representing the queen in the right of the government. Because it is prohibited to publish the name of a minor involved in a court case, only his or her initials are used in the title of a case).

The case. A 14-year-old grade vii student was seen placing drugs in his socks outside school by another student. A report was made to the school principal, who summoned the 14-year old to his office. There, in the vice-principal's presence, the principal informed the student that he had reason to believe that the student was in possession of drugs. The student was asked to remove his shoes and socks. Three marijuana butts were found in his right sock and pant leg. The police were called. The student was charged, convicted of drug possession, and fined $25.00. He appealed his conviction, contending that his rights under sections 8 and 10(b) of the charter (arbitrary detention) had been violated. His appeal was allowed in district court, but was overturned in the court of appeal.

The decision. In this case, the court assumed that school boards, schools, principals, and teachers were subject to the charter in their dealings with students in their care. In the opinion of the court, the student was not subjected to unreasonable search and seizure on the grounds that the search was justified and was not excessively obtrusive. Section 236 of the Ontario education act (which corresponds to section 96 of the Manitoba public schools act) requires principals to maintain proper order and discipline in school. Therefore, it was not unreasonable for the principal to require the student to remove his shoes and socks to verify or disprove the allegation. The principal's decision to search the student before calling the police was a reasonable exercise of discretion. In addition, the court found that the principal's failure to inform the student of his right to retain counsel before searching him did not violate the student's rights under section 10(b) of the charter because the student was not detained within the meaning of that provision. The court explained that school attendance itself is a form of detention, and that the student was subject to school discipline and thereby required to undergo any reasonable school disciplinary or investigative procedure. The court viewed this particular search as an extension of normal discipline which, under normal circumstances, might take the form of staying after school, completing extra assignments, or having privileges denied.


"What constitutes a legal search?" As with all intrusions into individual privacy, the test of whether searches are permissible is whether the reason for, and method of, searching are reasonable under the circumstances. A search is considered to be legal when:

Random searches are viewed as unwarranted intrusions into individual privacy. There have been many court cases in which the evidence from random searches and the resulting criminal charges have been found to be inadmissible and illegal. Random searches of students or their belongings will have a similar result, and may lead to a lawsuit against the teacher and the school involved.

Specific searches of particular students or their belongings must meet the test of reasonable suspicion, which lays the ground for the need for the search and a reasonably-conducted search. The suspicion must be that a student has or is about to break the law or contravene school policy. It is reasonable to search a bag or purse if it is believed that the student is concealing alcohol or other drugs in it. The belief must be based on some reasonable grounds, such as information received from a teacher or another student that a liquor bottle was seen in the bag; that a student's breath smelled of alcohol; or That a student's behaviour led to the belief that he or she was intoxicated.

It is not reasonable to search a student's bag or purse daily just because he or she may have been caught with drugs or alcohol on another occasion. Reasonable grounds for a search must exist each time a search is initiated.


"When and where can I conduct a search?" Assuming there are reasonable grounds for believing that a student is carrying alcohol or other drugs on his or her person, school staff must clearly understand when and where a search may be conducted. The teacher's authority does not extend to all hours of a student's life. The teacher does, however, have a responsibility for Discipline under the public schools act and the authority to monitor student behaviour during school hours, in the school building, or on school grounds.

Reasonable searches undertaken while the student is under the authority and control of the school are within the bounds of a teacher's powers. A logical extension of school authority is to allow monitoring of student behaviour during school-related activities which take place away from school grounds or after school hours. Field trips, school dances, and other group activities organized and supervised by the school and teachers,  even overnight events are so strongly school-related that the regular school rules and procedures apply.

Cases are not as clear when searches are attempted away from school grounds, after school hours, or under circumstances in which the school has no supervisory involvement. Once students are dismissed from school, school authority ceases. It may be that a teacher could intervene in student behaviour at such times, but such action would be viewed as that undertaken by an ordinary citizen, not a teacher.

The laws and rules relating to "citizen's arrest" (section 25 of the Criminal Code) could apply to justify intrusion into student behaviour and activities, but the action would have to be based on stopping criminal activity from continuing. That is, the student would have to be "caught in the act" of some clearly criminal activity, not merely one which contravenes school policy. Although ordinary citizens have the power to arrest someone whom they have just seen commit a crime, it is not clear whether they have the same powers of search as police. Persons who carry out a "citizen's arrest" may be charged with trespass or assault.


"Whose property are desks and lockers?" A students locker or desk is school property. However, students are responsible for their desks and lockers, including the contents. The school administration should clearly advise students of these facts at the beginning of each school year. This would negate any student challenges of locker or desk searches.


"Is a warning required before a search is conducted?" A warning is not required to search school property, including desks and lockers. This fact should be clearly stated in a written school policy.


"Does a student have to be present during a search?" Since lockers and desks are school property, and since a warning of a search is not required, it follows that a student need not be present during a search. A student who is not present may deny he or she knew of the contents of the locker or desk. Therefore, searches should be conducted in the presence of another teacher or the principal. If the teacher is fairly sure of what will be found, the student's presence may be advisable.


"Can I search a student's car?" The charter protects all individuals, including students, from unreasonable searches. It is unreasonable and unlawful for a teacher or principal to search a student's car. Just as desks and lockers are school property under the exclusive control of the school, a student's car is his or her property and under the student's exclusive control.

However, if a teacher reasonably suspects that the student's car contains alcohol, other drugs, or other illegal property, such as stolen goods, the proper procedure is to report the matter to the police. The police have the authority to decide to search the car and will obtain a warrant before doing so.


"Can I detain the student until the police arrive to search the car?" In the case of R. Vs J.M.G., one of the student's arguments was that the school principal had arbitrarily detained him contrary to the provisions of the charter. The court held that going to school was a form of detention in itself and that such detention was warranted and not unreasonable. The court stated that the detention was legal because of the school's legislated authority to educate children and enforce discipline. As long as students attend school, they submit themselves to the authority of teachers and school administration.

However, it does not seem reasonable that school authorities could detain a student to allow police to arrive to conduct a car search. Because such a search would not be based upon the actual commission of a crime, it would require a warrant, which takes time to obtain. Detaining a student under these circumstances would be construed as "unreasonable or arbitrary detention" under section 9 of the charter.


"Does the school need a warrant to conduct a search?" Searches conducted by teachers do not require a warrant if they are conducted under circumstances of reasonable belief during school hours or school-related activities. Searching a student, a desk, or a locker would be considered reasonable if the student is suspected of contravening school policy regarding the use of alcohol and other drugs on school premises.

However, a search conducted with the suspicion that a student is breaking a criminal law, such as possessing stolen goods, would be illegal if conducted by school staff or police without a warrant.


"What if the police ask to conduct a search in the school?" While the charter prohibits unreasonable search and seizure, section 25 of the criminal code authorizes a police officer to conduct a search of a person or place if the officer has a reasonable belief that a crime has, or is about to be, committed. Ordinarily, police must obtain search warrants from magistrates or judges to undertake such searches.

If police request permission to search desks, lockers, cars, or even students, school administrators should cooperate if the police produce a search warrant. If no warrant is produced, permission for the search during school hours should be refused until a warrant is presented. If the school allows an illegal search, the school, principal, or teacher may be liable for damages in a civil law suit brought by a student or his or her parents or guardians.


"What if the police just want to talk to a student?" Interviews of students by police during school hours do not require a warrant, but students have a right to consult with an adult prior to submitting to the interview. If a student is accused of committing a crime, the Young Offenders act provides that the student has the right to consult with a parent or other adult, including a lawyer, before answering any Questions. Failure to provide the student with the opportunity to consult renders the student's answers to questions inadmissible as evidence against the student in court.


"What are the potential consequences of conducting an illegal search?" Canadian courts have interpreted the powers of teachers and schools to discipline and supervise students. However, the increase in litigation based on the charter, and the growing awareness on the part of students and parents of their legal rights, may lead to challenges to this authority.

Civil liability for illegal searches rests on whether the reasons for a search and the methods used were reasonable in the circumstances. Liability may be avoided by exercising restraint in searching according to accepted principles and by deferring to police in those cases where the teacher is uncertain about what to do.

In the event a civil suit is successful on the grounds of an illegal search, the damages awarded would be both against the teacher involved and the school board which employs the teacher. Even if the school administration specifically forbade the actions taken, the legal doctrine of "vicarious liability" would arise. This doctrine provides that an employer is liable for the wrongful actions of its employees undertaken during the course of employment.

Typical court actions for illegal searches could be civil assault (unwarranted intrusion upon the person of another); wrongful arrest or detention; sexual assault (unwarranted sexual touching of a person); verbal slander; or written libel of a person's reputation. In Canada, these types of cases, if successful, have not resulted in large monetary awards. However, if the court views the behaviour as particularly unreasonable, the dollar award for damages could be substantial.


Seizures

"Can I legally seize alcohol and other drugs from a student?" A teacher can seize illegal substances from a student, provided the seizure takes place while the student is under the supervision of the teacher.


"Does the place where I find substances make a difference?" Seizures by teachers are permissible under the same guidelines as searches. That is, since the teacher is authorized to supervise students during school hours and school-related events, he or she may seize alcohol or other drugs under those circumstances.


"Does the type and amount of a seized substance make a difference?" The law recognizes two types of offenses related to the possession of alcohol or other drugs. Possession of substances in small amounts exclusively for personal use are usually punished by fines under $1,000.00. An amount of a substance which can reasonably be considered to be greater than that for personal use is considered as "bootlegging" alcohol or "possession for the purpose of trafficking" of other drugs. The second type of offence is considered so serious that, unlike most criminal cases, the onus is on the accused, not the crown attorney, to prove he or she was not in possession of the drug for sale to others. Punishment for trafficking ranges from fines over $1,000.00 to a prison term to a maximum of life imprisonment.

The punishment varies according to the amount of illegal substance found in the possession of the accused person.


"Who do I tell about a seizure?" Teachers should notify the principal after any search or seizure involving students immediately. The principal should notify parents or guardians and, in more serious cases, the police.

It is a matter of judgment for the principal to determine if the amount of a substance seized in a search appears to be for the student's personal use only or if the amount is large enough to justify a suspicion that the student was selling the substance to others. In the case of suspected sale, the matter should be referred to the police.


"What do I do with the seized substance?" Based on a principal's discretionary decision, amounts of a seized substance which appear to be for a student's personal use only may be destroyed (e.g. flushed down a toilet). If a teacher or principal seizes a large amount of alcohol or other drugs from a student, the seizure should be kept in a secure place and handed over to the police as evidence.


"Does a student have a right to the return of a seized substance if over 18 years old?" The courts seldom return seized alcohol to a person found innocent of charges and never return seized drugs. Therefore, it is logical to assume that the school should not return seized substances, regardless of the student's age. Under the public schools act, the principal has the authority "to maintain order and discipline in the school." The destruction or seizure of alcohol and other drugs, as appropriate in a given situation, is a reasonable extension of such authority.


Discipline and reasonable force

Section 9 of the charter states: "Everyone has the right not to be arbitrarily detained or imprisoned." The reasonableness of detention or imprisonment is important in determining the arbitrariness of such action. Generally, a full and fair hearing judged by an impartial person is required before a person can be detained or imprisoned.

Since the signing of the magna carta, western societies have valued the right that persons cannot be detained on suspicion alone. However, society has also found that some forms of  temporary detention without a formal hearing are sometimes in the best interest of the person and the community. For example, in Manitoba, people who are drunk in a public place can be detained without charge until they are sober.

Other forms of detention are also accepted, such as the requirement that children of a certain age must attend school. In the case of R. vs. J.M.G., the court held that the requirement to attend school was a permissible form of detention and did not contravene the provisions of the charter. Further the court decided that the detention of a student may be a required punishment to enforce discipline and to maintain order in a school. Similarly, detention for the purposes of conducting a search was held to be reasonable.

Under section 96 of the public schools act, schools have the authority to "maintain order and discipline in the school" and to "seize or cause to be seized and take possession of any offensive or dangerous weapon that is brought to the school by a pupil and hand over any such weapon to the principal . . . " the act does not specifically offer direction to teachers or principals on how to deal with intoxicated students or students in possession of alcohol or other drugs. Nonetheless, the rights of the teacher or principal in taking action in such circumstances is implied from the general powers authorized in section 96.


"How much force can I use to detain a student to prevent unacceptable or illegal behaviour?" Section 43 of the Criminal Code provides that "every Schoolteacher, parent, or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances." In the past, caning students was considered reasonable and acceptable; today it is not. The test of reasonableness is used to determine if a particular behaviour is justified according to accepted community standards.

Teachers should be aware that the criminal code defines a "criminal assault" as an assault that occurs when someone, "without the consent of another person . . . applies force intentionally to that other person directly or indirectly." The amount and degree of force used is irrelevant.

Simply holding a student by the arm and leading him or her to a place the student does not consent to go may be judged to be a criminal assault. Teachers are afforded more leeway than an ordinary citizen in this regard, but care should always be taken to avoid excessive force.

Caution is advised when deciding on whether or not to use physical force involving a student. Some situations could be potentially dangerous if a teacher is untrained in physical restraint methods. It is not the duty of school staff to overpower a resisting student to maintain discipline. The best avenue is to avoid such situations and to call the police if detention for possible search or arrest is warranted.


"What do I do with a student under the influence of alcohol or other drugs?" While a student is attending classes or a school function, the student is under the control and authority of the school. The continuing presence of an intoxicated student under the influence of alcohol or other drugs in a school is contrary to the welfare of the school. The student should be removed and the student assistance program invoked.


"If I expel a drunk student from a dance, am I liable for anything that happens to the student or others?" Every reasonable effort must be made to prevent an intoxicated student from leaving school alone. If reasonable steps are taken to notify others about the student's condition and to deter the student from leaving the school unaccompanied, the liability of negligence can be avoided, even if the student forcibly escapes a teacher's custody. For example, if a student is expelled from a school dance for being drunk, and drives away alone from the site, the teacher should notify a parent or guardian. Otherwise, legal action could be launched on the grounds that the teacher was negligent and responsible for any harm to the student or others as a result of his or her intoxicated state.

However, for a teacher or school to be found criminally liable for the actions of an intoxicated student, the teacher or the school must have formed some criminal intent with the student, such as providing the student with intoxicants, or counselling him or her to commit a crime while intoxicated. Accordingly, a teacher or school will Not be found criminally liable for the actions of a student who leaves school on his or her own initiative under such circumstances.


"What types of discipline are and are not available to a teacher?" Suspension and expulsion are authorized forms of punishment in every province. Section 48(4) of the public schools act provides that "subject to the regulations and notwithstanding any other provision of this act, a school board may suspend or expel from school any pupil who, upon investigation by the school board, is found to be guilty of conduct injurious to the welfare of the school." Manitoba practice appears to allow principals to decide whether or not to suspend a student. The act implies that expulsion is a punishment of last resort and that A school board hearing should take place to investigate a student's behaviour before an expulsion is ordered.

"Detention" is a time-honoured form of discipline available to Canadian teachers. In R. vs. J.M.G., courts have recognized and tacitly approved detention to be within teachers' authority.

Counselling as a condition of continued schooling can be an effective method for dealing with a student who is abusing chemical substances. Young people who abuse alcohol and other drugs respond better to counselling than to punishment. Schools can place conditions on detention, suspension, and even expulsion, by requiring a Student to undergo counselling in lieu of punishment.

Corporal punishment, however, is ill-advised for the following reasons:


"Can a school insist that a student participate in a sap?" Schools can impose reasonable conditions upon students, including attendance at alcohol and drug abuse counselling and treatment. The choice to participate, however, is ultimately the student's.


"How important are written school policies?" Because the charter is so new, legal precedents With respect to dealing with student behaviour are in an evolutionary stage. Therefore, schools and school boards have a responsibility to parents and students to develop clear written policies for student behaviour and forms of discipline for unacceptable behaviour. Reasonable rules of behaviour reasonably enforced by the school administration will assist students and teachers alike and will lessen the potential for legal challenges to school authority.


Confidentiality

"Am I bound to honour a student confidence about involvement with alcohol or drugs?" Confidentiality is both a legal and an ethical issue. Legally, questions of confidentiality arise when evidence given in a criminal trial is challenged as inadmissible because the accused person gave it in confidence to a counsellor. A test has evolved which sets out four conditions which must be met if "legal confidentiality" is to be established. These conditions are called "wigmore's conditions" after the law professor who first extrapolated them into legal rules:

Counsellors and teachers have been found not to meet all four conditions. Therefore, communications between a student and a teacher are not considered to be legally confidential.

However, the ethical issues to be considered in deciding whether or not to keep a student confidence confidential remain. The best course of action for teachers is to preserve confidentiality under the circumstances outlined by their school's Student assistance program, with the understanding that, in a court of law, confidences must be divulged. The Canadian guidance counsellors association's code of ethics also provides for such communications to be kept confidential and not be divulged unless the student intends to harm himself or others.


"What happens if I do not divulge a confidence, and the student later harms himself, herself, or others?" To date, there have been no legal cases in Canada dealing specifically with this type of civil liability issue as it relates to the teacher-student relationship. However, lessons may be drawn from the two following cases:

Bogus vs. Iverson

The case. A female Wisconsin student committed suicide a few weeks after her guidance counsellor terminated interviews with her. The student's parents sued, alleging the counsellor was negligent in failing to suggest psychiatric help for the student, failing to notify the parents of their daughter's emotional state, and terminating counselling.

The decision. The American court found no negligence on the part of the guidance counsellor, since the student's suicide was not foreseeable by a person untrained in psychiatry.

Mustafic vs. Smith

The case. A Winnipeg psychiatrist was treating a man for a psychological disturbance. The psychiatrist released the man from hospital on a day pass. The man took his children into the country and shot them, killing one and maiming the other, and then killed himself. The man's wife and mother sued the psychiatrist, claiming the doctor was negligent in releasing the man and in failing to diagnose his suicidal and violent tendencies.

The decision. The Manitoba court of appeal found the psychiatrist not to be negligent in that it was impossible to have foreseen that the man would have acted in the manner he did.

In these cases, the courts applied the principal of "the prudent and careful parent." That is, both the counsellor and the psychiatrist could not be found liable for the injuries in these cases because they acted as reasonably, prudently, and carefully as they could under the circumstances given their skill and judgment. Therefore, it is likely that a teacher would not be found liable if he or she fails to foresee that a student could harm himself, herself, or someone else.

But if a student actually tells a teacher of plans to commit suicide, harm another person, drink and drive, abuse alcohol or other drugs, or sell drugs to others, then the teacher has an obligation to act. The teacher should report such disclosures to the principal. The principal, in turn, has a responsibility to speak to the student, his or her parents or guardians, or to notify police, as appropriate to the situation.

The law also recognizes that children are not always able to make decisions about what is or is not harmful to them and provides for adults to protect them. The Manitoba child and family services act specifically requires all adults to cooperate in protecting children. In section 17, a child in need of protection is defined widely, including any child who by his or her "behaviour, condition, environment, or association" is likely to injure himself, herself, or others. This definition includes students who abuse alcohol or other drugs. Therefore, it is the legal responsibility of schools to assist in protecting children by referring them to appropriate resources, such as alcohol or drug abuse counselling or treatment.


"Are there any legal actions I must take if a student needs help with an alcohol or drug problem?" The child and family services act requires anyone who finds a child in need of protection to report the matter to the director of child and family services. A child in need of protection is defined as a child who is "physically, sexually, or mentally abused," or who is not cared for by his or her parents or guardians. If a parent refuses to cooperate with the school in dealing with the student's problem, then the matter should be referred to the child and family services agency in the school's community. The identity of people who inform the agency of such matters is protected under the act. Failure to report such situations is a breach of the act, and persons charged with this offence are fined. Professionals found guilty of this offense are reported to their professional associations or licensing bodies.

Section 3 of the Young Offenders act establishes the principle that young offenders between the ages of 12 and 18 are not to be treated as adult criminals and but young persons who need discipline and guidance. The act provides for various alternatives to judicial proceedings to deal with young offenders. Wherever possible, a young offender is released into the custody of a responsible adult, usually his or her parents.

The existence of the Young Offenders act means that strict compliance with the Criminal Code as it relates to young people is not required. Therefore, a teacher has a degree of discretion in dealing with a student. Generally, in those cases where parents are unwilling or unable to help, and where the school cannot control the student, police should be called. Common sense dictates that, in serious situations, such as drug trafficking, sexual assault, or arson, both the parent and the police should be notified.


"What if a parent is unable or refuses to assist his or her child?" A student's parent or guardian is legally responsible for the student and should be made immediately aware that the student is intoxicated at school. It is the responsibility of the parent to take the student from school. Then, together, the school and the parent can assist the student with his or her chemical abuse problems. If a decision is made to send a student home, and if a parent or guardian refuses to come to the school to pick the student up, the matter should be referred to child and family services authorities.


"Do I have to call the police to report a student who is abusing chemical substances?" The abuse of chemical substances in and of itself is not a crime. Therefore, failure to report a student who is abusing alcohol and drugs is not a crime.


"Is 'sniffing' illegal?" No. Although the use and abuse of inhalants is as potentially dangerous as Alcohol and drug abuse, it is not an illegal activity.


"What if a student confesses a crime to me?" If a confession is to be admissible against an accused person, it must be proved that the confession was made to a person in authority freely and without compulsion or promise of reward. A teacher would be considered as a person in authority to the same extent as, say, a police officer.


"Do I have a legal duty to report a crime?" There is no legal obligation for a teacher, or any other person, to report a crime that has been committed.

Section 23 of the criminal code defines an accessory to a crime as a person who "received, comforts, or assists" an escaped person who has committed a crime. If a student tells a teacher he or she has sold alcohol or other drugs illegally, and the teacher does not report the matter to the police, the teacher would technically be an accessory. This, of course, contradicts the fact that a person is not required by law to report a crime. The courts generally find liability under this section when the accessory is active, such as hiding a criminal from the police. It is unlikely that a teacher would be charged as an accessory simply because the student told the teacher of a crime he or she has committed.

If, however, a teacher told a student how to commit a crime, or where to buy illegal substances, The teacher would be a party to the offence under section 22 of the criminal code.


"What kind of information should be kept on a student's school record?" Section 96 of the public schools act provides that teachers keep certain records relating to a student's name, address, age, attendance, health, and academic progress. Legally, no other record is required.

Most schools keep more comprehensive records on each student. It is important to recognize that some behavioural problems are simply part of growing up, and discretion should be used in keeping permanent records of isolated incidents.

St. Hilaire vs. The attorney general of Manitoba

The case. A parent challenged the legality of a Manitoba child and family service agency keeping her name on a list of persons suspected of child abuse.

The decision. The court found that only actual facts, not suspicions, can legally be kept in permanent records. The court ordered the parent's name, and the names of all other suspected persons, to be removed from the list on the grounds that the list was against the principles of natural justice.

Therefore, it follows that student records should also be factual in nature to avoid liability against a teacher or school.


"What about liability for slander and libel?" Liability for slander arises when a person says something about someone else which is untrue and which maligns a person's reputation. Libel is the written form of slander.

Liability can arise when a teacher or school falsely states or writes something about a student which would malign his or her reputation, such as a statement that the student uses or sells drugs. The truth of the matter in question is an absolute defence in any court action. By recording only facts, and by avoiding gossip or Unsubstantiated suspicion, liability of this nature can be avoided.


"Who can have access to a student's records?" In the past, the law designated school records as school property. Recently, there have been legal changes (such as federal and provincial freedom of information legislation) which allow access to these records. Although there are no legal requirements or precedents for granting access to school records, it is reasonable to assume that a student and his or her parents or guardians may be allowed access to the particular student's records.


"Can a student or parent have a record expunged?" Based on legal precedent, it is likely that a student Or parent could have a school record expunged, if the record is based on suspicion or untruths, or if the record contains information which is contrary to the charter, or is discriminatory under the Manitoba human rights act on the basis of a student's sex, age, religion, color, national or ethnic origin, or mental or physical disability.


"Should a student's record travel with a student on transfer to another school?" A cumulative school record should accompany a student on transfer to another school because its content contains important information regarding a student's age, academic performance, health, etc. Discretion is advised as to what is contained or remains in the record on transfer. Some long standing or difficult behavioural problems may have To be recorded to assist the new school in dealing with the student. But minor or isolated incidents may do more to prejudice a student in the new surroundings. Non-factual items or opinions should not be recorded.