Trustee seeks power to search cellphones

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This article was published 06/11/2017 (3049 days ago), so information in it may no longer be current.

Winnipeg School Division trustee Mark Wasyliw wants the division to grant itself the power to seize and search students’ and staff’s cellphones.

Wasyliw said Friday the extraordinary powers would have to comply with the Charter of Rights and Freedoms, and would be part of a proposed sweeping update of search and seizure policies within the province’s largest school division.

Wasyliw will table a motion at tonight’s board meeting, which would be debated and voted upon at the Nov. 20 meeting, with the intention then of sending it to a committee for public consultation.

Wasyliw said Friday he is not aware of any jurisdiction that has attempted to extend its school powers as far as seizing and searching cellphones.

Education Minister Ian Wishart was attending his party’s annual general meeting this weekend and unavailable for comment.

Wasyliw said students and staff are not compelled to bring a cellphone into the school, and should be aware that if they choose to bring phones into schools, they should have less expectation of privacy than elsewhere.

“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.”

Wasyliw said the community can decide how robust the division can be around privacy.

Wasyliw said he didn’t see anything in the Public Schools Act that would require Wishart to sign off.

“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,” said Wasyliw, a criminal defence lawyer.

“Right now, we do not have a sufficient policy in place and it would be up to the individual administrators making snap decisions when faced with a situation. That’s not fair to them, and the board has a responsibility to support them and to give them guidance through policy to assist in dealing with often difficult situations,” said Wasyliw.

Wasyliw said the policy must answer questions, such as: “Can a teacher or principal seize your phone? If they do, can they look at the data on the phone? Can they share that information with others and if so who? What is the student’s rights in a situation like this? What are the parent’s rights in a situation like this?

“Likewise, we now have CCTV cameras in all of our schools. We need a policy as to privacy rights in relation to the video we collect. Who can collect? For what use? How long is it kept for? Who can view and in what circumstances? What signage or warnings are required that people entering school property are being videotaped etc.,” he said.

Wasyliw said police who have arrested a person are “allowed to do a cursory examination of the contents of your unlocked phone if they have reasonable suspicion of a crime in relation to data on the phone.

“However, there is no case law I am aware of that would require you to provide your password for a locked phone,” he said.

In 2008, the courts threw out a Brandon School Division policy that brought police sniffer dogs into schools to do random checks of lockers.

The Manitoba Teachers’ Society could not be reached Friday.

The Manitoba Association for Rights and Liberties is cautiously supportive of Wasyliw.

“MARL supports school divisions updating their policies given the vast social, legal, and technological changes since 1999,” executive director Michael Barkman said.

“Search and seizure policies do raise a number of Charter and criminal law issues. Updating this policy would likely provide guidance to teachers and administrators about what sort of information can be supplied to the police in the event of a search,” Barkman said.

“It is important that policy changes comply with students’ Charter rights — this includes the role of teachers in giving evidence to police. With the details of the Winnipeg School Division policy still unknown, the development of a policy in itself does not yet challenge any Charter rights, but it certainly depends on the eventual policy’s contents,” he said.

nick.martin@freepress.mb.ca