Teachers’ union would fight policy to search cellphones

Hey there, time traveller!
This article was published 06/11/2017 (2911 days ago), so information in it may no longer be current.

The Manitoba Teachers’ Society will file charter challenges and civil lawsuits if Winnipeg School Division carries through with a plan to allow seizure and search of staff and student cellphones.

“Any division that would endorse this kind of policy would invoke strong opposition from the Manitoba Teachers’ Society and face a myriad of legal problems including charter challenges, civil suits for violation of personal rights and grievances for violation of employment rights,” MTS president Norm Gould said Monday afternoon.

Trustee Mark Wasyliw plans to table a notice of motion at Monday evening’s board meeting proposing a massive overhaul of the division’s search policies.

It includes what Wasyliw, a criminal defence lawyer, believes would be an unprecedented section allowing school administrators to seize and search cellphones of both students and staff.

The policy would be written to be compliant with the Charter of Rights and Freedoms, said Wasyliw, who pointed out that students and staff are not compelled to bring a cellphone into the school, and should expect a lower level of privacy there than elsewhere.

A notice of motion is not debatable when it is tabled. It would go to debate and a vote at the next regular board meeting on Nov. 20.

Education Minister Ian Wishart agreed Monday with Wasyliw’s contention that the Public Schools Act allows the division to make such policy changes without needing the minister’s consent.

“We presume the division will have legal advice as it develops policy in these areas. It’s too early to comment further,” Wishart said.

Gould warned WSD to tread carefully.

“Teachers, students and others don’t give up their fundamental rights to privacy and security of person by walking into a school. An employer has no legal or moral right to search the private property of a student or a teacher without their consent,” he said.

“A school division is answerable under the Charter of Rights Freedoms. Search and seizure of personal private property would be a gross violation of the Charter. Searching a private cellular phone or any private personal property is an exercise of power conducted by the police and strictly monitored by the courts. Employers, including school divisions, have no authority to use those powers.”

Seizing a cellphone to be searched constitutes theft, “Gould said.

“The police do not have the authority to force someone to unlock their private cellular phone, nor would a school division,” he said. “Any policies being considered by a school division must be reasonable, can’t be inconsistent with the collective agreement, and must follow long-established legal principles from the Supreme Court of Canada regarding management, personal and employment rights.”

If Wasyliw gets support for his proposal on Nov. 20, he said a board committee would hold public hearings about the issue so the community could decide how robust the division can be around privacy.

“Given the issues surrounding cyber bullying, online harassment, etc. and privacy concerns around CCTV cameras and where they are installed and who has access to the footage, it was my belief in bringing this motion that a comprehensive policy outlines what staff can and can’t do and conversely what are the privacy rights of students and staff in our schools,” he said.

“If the motion passes, part of the policy review will include a jurisdictional scan to see if there is any guidance from other school boards; however, I suspect we are going to be the first school division to examine these type of issues and the privacy rights of students and staff in our school in a comprehensive and explicit way.

“However, if a search led to charges being laid under the Youth Criminal Justice Act or the Criminal Code, the reasonableness of the search could be a matter for the courts to decide.”

nick.martin@freepress.mb.ca