SCC Rulings That Affected the
Alberta School Board Association
Spring General Meeting – June 8, 2010
A Governance Odyssey
Senior Legal Counsel, ASBA
A Review of Supreme Court of
Canada Decisions and their
Impact on School Board
R. v Jones  2 S.C.R. 284
Early SCC decision on the freedom of religion
and the right to security of a person
Issue– Whether compulsory education law in
Alberta violated these constitutional rights.
Appeal by accused from convictions on three
counts of truancies on the part of his children,
contrary to section 180(1) of the Alberta School
Accused refused to seek provincial approval for
the education of his children, along with some
20 others in a program he operated at his
church, based the belief that his authority over
his children and his duty to attend to their
education came from God, and that it would be
sinful to request the state to permit him to do
The Supreme Court upheld the convictions. The
School Act did not infringe the accused fundamental
right to freedom of religion.
Provinces have a compelling interest in student
education and are entitled to place “reasonable”
restrictions on an individual’s fundamental
freedoms as they affect education.
Court should not usurp or overrule the role of
educational authorities or the architects of
School officials need administrative flexibility to
Courts have shown that they will defer to the
expertise of school officials who work within and
are knowledgeable of a statutory educational
Provinces have the right to impose a minimum of
standards on persons who wish to educate their
children outside the publicly funded school
In Jones, the imposition of minimum standards did
not violate Mr. Jones freedom of religion.
The compulsory attendance law was upheld by the
Eaton v Brandt County Board of
Education  1 SCR 244
The parents of a 12 year old girl with cerebral
palsy who was incapable of communicating
through speech, sign language or other
alternative communication systems, brought an
action against the Board alleging that Emily’s
equality rights under section 15 of the Charter
had been breached.
Early important decision of the SCC as to the
meaning of student’s disability in light of
equality rights under the Charter.
The court recognizes disability means vastly
different things depending upon the individual
Produces the “difference dilemma” whereby
segregation can be both protective of equality and
violative of equality, depending upon the person
and the state of disability.
The Court’s recognition that as a child’s
equality of rights are exercised by their
parents, that the decision making body (i.e.
Board) must ensure that its determination of
appropriate accommodation for an
exceptional child be made from a subjective,
child centre perspective.
Equality must be meaningful from the child’s
point of view as opposed to the adult’s in his
or her life.
This does not negate the importance of
consultation with parents.
Section 47 of the School Act requires
consultation with a parent of a student and,
where appropriate, with the student before a
board places the student in a special education
SCC upheld the Board’s placement
No finding of discrimination on the basis of
Appropriate accommodation for an exceptional
child was determined from a child centered
approach and not from the perspective of adults
in her life.
Understanding of appropriate needs for
exceptional children must be determined with a
view to supporting the best interests of that child.
Board personnel must consult with the parents of
the student and the student where appropriate in
making such decisions.
The courts will defer to the expertise of school
officials which demonstrates reasonable support
SCC recognition that a student’s rights and
interests are separate and distinct from their
parents, and that the parent’s views will not be
determinative of the course of action to be
undertaken by the Board.
R. v M (MR)  3 S.C.R. 393
SCC rules on student searches upholding
decision of school authority which had,
through the vice-principal, conducted a search
on a student at school dance in the presence
of a police officer.
The student argued that the right to be free from
unreasonable search and seizure under section 8
of the Charter had been violated.
SCC upholds expectation of privacy with respect
to one’s person as reasonable and notes that it is
not rendered unreasonable merely by the student’s
presence at the school.
The student’s privacy rights are however
diminished in some circumstances. Expectation
of privacy is lower for a student attending school
than it would be in other circumstances, based
upon the school’s responsibility for maintaining
order and discipline.
The court applies different standard to searches
by school administrators.
A search by a school official with appropriate
authority may be undertaken if there are
reasonable grounds to believe that a school rule
has been, or is being violated and that evidence of
the violation will be found on the location or on
the person of the student searched.
Searches undertaken for health and safety
concerns may require different considerations.
All circumstances surrounding a search must be
considered in determining if a search is reasonable.
Court guidance regarding searches
A warrant is not essential in order to conduct a
search of a student by a school authority.
A school authority must have reasonable grounds
to believe that there has been a breach of school
regulations or discipline and that a search of the
student would reveal evidence of breach.
A school authority is in the best position to
determine if reasonable grounds exist for the
Reasonable grounds may consist of:
Information received from one student considered to be
Information received from more than one student;
A teacher or principal’s own observations; or
Any combination of these pieces of information which the
relevant authority considers to be credible.
The compelling nature of the information and the
credibility of these or other sources must be assessed
by the school official and the context of the
circumstances existing at the particular school.
School searches are different from police
Police searches must usually be based upon
reasonable and probable grounds, and usually
require a warrant.
SCC empowers school administrators to
undertake searches on reasonable grounds,
recognizing the practicalities and the need for the
same in order to maintain student safety, order
School administrators have a privilege and inside
perspective to decide whether to conduct a search
of a student or her property.
Boards must ensure that principals are adequately
trained to undertake searches which do not breach
a student’s expectation of privacy which continues
to exist at a lower threshold.
R. v AM  S.C.J. No. 19
SCC rules on ability for police to conduct
random searches in schools with the assistance
of drug sniffer dogs.
The search was a violation of the student’s right to
be free from unreasonable search and seizure.
The court had to decide:
Was drug evidence obtained as a breach of section 8 of
the Charter: “Everyone shall be free from an
unreasonable search and seizure”?
Was the dog sniff of a backpack a search?
If so, was there legal authority for conducting a search
by sniffer dogs in the school, and is that law
Was the search itself conducted reasonably?
If there was a breach of section 8, should the evidence
be admitted in court proceedings?
The case focuses on random searches by police in
schools, finding such searches unconstitutional.
The ruling does not impact the ability for
principals to conduct searches based upon
Justice Label, speaking for the majority, stated:
“Students are entitled to privacy even in a school
environment … Entering a school yard does not
amount to crossing the border of a foreign state.
Students ought to be able to attend school without
undue interference from the state, but subject, always,
to normal school discipline.”
All members of the court agreed that a drug dog
sniff is a search, but disagreed on the standard to
be applied to the undertaking of such searches, as
Reasonable and probable grounds (per Label J, Fish J,
Abella J and Charron J);
Reasonable suspicion per McLaughlin CJ, Binnie J,
Deschamps J, and Rothstein J; and
Generalized suspicion per Bastarache J.
Implications for school boards
Police may not use drug detection dogs for
random, speculative searches in schools, whether
invited by school authorities or not.
Random or broadly targeted sniffer dog searches
conducted by the police or school, based on
credible information relating to explosives, guns
or other urgent public safety related contraband,
may be permitted even if suspicion is not targeted
on an individual.
The ruling does not impact the ability for a
principal to undertake searches of students or
their belongings in schools, as set out in the R. v
M(MR) case, based upon reasonable suspicion.
A door was left open for schools to ask for police
assistance for searches using drug detection dogs
if they have a reasonable suspicion that a search
would disclose evidence of drug possession by a
targeted individual or group. Suspicion must be
A reasonable suspicion is more than an educated
guess, unless in reasonable and probable grounds
Suspicion must be backed up by objectively,
Administrators using drug detection dogs or
private contractors for the purpose of enforcing
school rules may also be subject to legal challenge.
Boards contemplating the use of private
contractors must take all possible steps to reduce
the expectation of privacy and ensure that any
such search was based upon a current reasonable
suspicion that drugs will be found on the premises
on the day that the search occurs.
Legal advice and assistance in devising appropriate
policy should be sought.
The search must not be random, but rather
targeted based upon credible information.
Such searches are undertaken with great risk in
light of the SCC ruling.
Ross v New Brunswick School District
No. 15  1 S.C.R. 825
SCC considers freedom of speech or
expression and freedom of conscience and
religion rights in face of complaint by a Jewish
parent of a student who attended a school at
which the teacher, Ross, made anti-Semitic
comments in books and on television.
SCC considered whether the New Brunswick
Human Rights Commission, which ordered the
school board to take various personnel actions
against Ross violated Ross’ freedom of speech,
expression, conscience and religion.
SCC upholds finding of discrimination.
Evidence disclosed a poisoned educational
environment in which Jewish children were likely
to feel isolated and suffer a loss of self-esteem on
the basis of their Judaism.
Itwas reasonable for the board to infer that this
was caused by Ross’ off-duty conduct.
Human Rights Commission was correct in
concluding that the school board had a duty to
maintain a positive environment for all students
and that by failing to impose sanctions against
Ross, the school board breached that duty.
A passive approach to complaints of
discriminatory behaviour may signal a silent
condonation and support of the complained of
SCC recognition of the importance of a teacher as
a role model and recognition of the trust and
influence that a teacher can exercise over his
Teachers must be seen to be impartial and
Boards must ensure for an equal and
discrimination free environment.
Chamberlain v Surrey School District
No. 36  4 S.C.R. 710
SCC overturned school board motion to ban
three books depicting same sex parented
families for the following reasons:
The school board motion violated the principles of
secularism and tolerance as set out in the BC School
The school board ran afoul of its own regulation made
pursuant to Ministerial Order as to how decisions
about supplementary resources should be made; and
The school board applied the wrong criteria to the
evaluation of the supplementary resources by either
ignoring or mistaking the requirements of the School
Act and the learning outcomes of the curriculum.
The School Act’s emphasis on secularism did not allow
the school board to act in a way that would
undermine the values of accommodation, tolerance
and respect for diversity.
“A requirement of secularism applies that although
the board is indeed free to address the religious
concerns of parents, it must be sure to do so in a
manner that gives equal recognition and respect to
other members of the community. Religious views
that deny equal recognition and respect to the
members of the minority group cannot be used to
exclude the concerns of the minority group.” 42
The courts will not hesitate to intervene and
overturn decisions of school boards which do not
reflect the diverse and multicultural aspects of our
The decision affirms the right of children in same
sex parented families to see themselves and their
families reflected in the school curriculum.
A core component of this case is that tolerance in
schools is “always age appropriate”.
Canadian Foundation for Children, Youth and
the Law v Attorney General of Canada 
1 S.C.R. 76
Challenge to the constitutionality of section 43
of the Criminal Code which reads as follows:
“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 a child, as
the case may be, who is under his care, if the force
does not exceed what is reasonable under the
SCC does not find that the application of
section 43 violates Charter rights but places
restrictions on potential use of section 43
which is really provides a defense to the
application of force for a corrective means.
(Note a partial dissenting opinion filed by
Justice Binnie and dissents by Justice Arbour
and Justice Deschamps)
Majority make the following findings:
The person applying force must have intended it to be
for educative or corrective purposes;
Section 43 will not exculpate outbursts of violence
against a child motivated by anger or animated by
The child must be capable of benefiting from
Force against children under two years of age cannot
be corrective, since on the evidence they are incapable
of understanding why they are hit;
A child may also be incapable of learning from the
application of force because of disability or some other
Application of section 43 is limited to the mildest
forms of assault.
People must know that their conduct raises an
apprehension of bodily harm and they cannot rely
upon section 43.
Corporal punishment of teenagers is harmful
because it can induce aggressive or anti-social
Corporal punishment using objects, such as rulers
or belts, is physically and emotionally harmful.
Corporal punishment which involves slaps or
blows to the head are harmful.
The above noted types of punishment are not
The above noted list of findings sets out the
implications for school boards. The use of force
is severely limited.
Section 43 of the Criminal Code, while withstanding
constitutional challenge, limits the application of
the defense for teachers.
Teachers should not use corporal punishment but
may use minimal force to remove a child from
class or a danger, or secure compliance with
Teachers/caregivers must be cautious that the use
of force never arises out of frustration, loss of
temper or abusive personality.
Jurban v North Vancouver School
District No. 44 (2)
The BC Court of Appeal reinstated the finding
of the Human Rights Tribunal that a person
can bring a complaint under the Human Rights
Code for discrimination on a perceived ground
(in this case sexual orientation), and that a
school board can be liable for discriminatory
actions of its students.
A student experienced significant harassment over
a number of years by other students based on the
perception that he was gay.
The student filed a human rights complaint against
the board for failing to provide him with an
educational environment free from discrimination.
The Human Rights Tribunal found discrimination;
the Superior Court overturned the ruling, finding
that perceived sexual orientation is not a protected
ground under the Human Rights Code.
BC Court of Appeal reinstated the Human Rights
Leave to appeal the matter to the Supreme Court
of Canada was refused.
Irrelevant as to whether the harassers actually
believed the student was gay, the effect of their
conduct was to deny his dignity and full
participation in school life.
Harassment negatively affected the student’s
participation in school life.
The school board had a duty to provide students
with an environment free from discrimination,
but made it clear that school boards are not
strictly liable for the conduct of its students.
However, the school board’s response will be
assessed when determining whether the school
board took appropriate measures to protect the
student from discrimination.
The VP testified that the school lacked resources
to deal with bullying incidents that occurred
outside the classroom and that they had not
offered staff harassment training.
While the board had taken some measures and
instituted a code of conduct, and taken some
disciplinary measures against the harassing
students, these were found to be insufficient in
light of the then current standards.
School boards cannot rely upon an unavailability
of resources to justify discrimination experienced
School boards must adequately resource and train
staff to address complaints or incidents of
School boards should:
Have a clearly written harassment policy stressing the
importance of a discrimination free school
The policy should:
set out the objectives of the school board’s harassment
express the seriousness of harassment and bullying, and the
consequences for the same;
provide clear procedural guidelines for the processing of
complaints and investigations;
indicate that a breach may result in disciplinary action,
including dismissal or expulsion, as applicable;
be applied consistently to all students and staff and
train teachers, staff and students on racial, homophobic and
Multani v Commission scolaire Marguerite-
Bourgeoys  1 S.C.R. 256
SCC finds the school board violated the right
to freedom of religion of a Sikh student when
it prohibited him from wearing his kirpan to
While the court concluded that the objective in
ensuring a reasonable safety in schools was a
pressing and substantial one, it also needed to
balance the student’s right to freedom of religion.
Mr. Multani sued the school board arguing that his
son had a right to wear his kirpan to school if it
were sealed and sewn up inside his clothing and
that this would be a reasonable accommodation to
his son’s freedom of religion.
Restrictions placed upon the wearing of the kirpan
to school were overturned by the Court of Appeal
which agreed with the school board’s ban on
Multani from wearing his kirpan to school.
The SCC overturned the Court of Appeal ruling
and reinstated the lower court decision.
Court concluded by stating the following:
Religious tolerance is a very important value of
Canadian society. If some students consider it unfair
that [Multani] may wear his kirpan while they are not
allowed to have knives in their possession, it is
incumbent on the schools to discharge their obligation
to instill in their students this value that is … the very
foundation of our democracy.
A total prohibition against wearing a kirpan to school
undermines the value of this religious symbol and
sends students the message that some religious
practices do not merit the same protection as others.
Thiscase, from the highest court in the land,
demonstrates the importance our society attaches
to protecting the freedom of religion of individual
students at schools and protecting the rights of
minorities, while at the same time respecting the
school’s duty to ensure a safe learning and
This sampling of Supreme Court of Canada
decisions indicates that the SCC will not
hesitate to overturn decisions of school boards
in certain circumstances. School board actions
will be scrutinized to ensure that their actions
are compliant with the law; generally and
importantly with the human rights and
constitutionally guaranteed rights available to
students and staff.
The Courts have also demonstrated that they
will provide great deference to decisions made
by appropriately qualified individuals and
boards who exercise their statutory
responsibilities to educate students.