Smartphone searches, seizures could be codified in new Winnipeg School Division policy

Winnipeg School Division teachers can seize, search, unlock or ban students' cellphones, for everything from classroom disruptions to concerns about cyberbullying and other inappropriate messages — because there's no rule telling them not to. 

Trustee Mark Wasyliw said the division's search and seizure rules haven't been updated since 1999. 

That's why he has a motion headed for the school board Monday night, calling for an update to the policy with specific guidelines for when administrators could search and seize the cellphones of students and staff.

"This isn't about giving administrators rights to search people," trustee Mark Wasyliw said. "It's about giving them a line about what is permissible and impermissible. Because right now, that doesn't exist." 

But the motion sparked controversy Monday, as many took it to mean that teachers will get codified rights to peek into students' phones. 

Updates to the policy are designed to deal with the advent of smartphones, modernize the division's locker-search framework and security camera use (the division now has cameras in all its schools) and guide staff on how and when to turn over information to police.

Policy has failed to evolve as smartphones have become commonplace in many Manitoba classrooms, said Wasyliw, compounding problems such as cyberbullying or the exchange of sensitive photos and what educators can do to intervene.

"The danger is right now that if we don't have a comprehensive policy, the administrator who has to deal with whatever is blowing up at the time is going to just go with their gut," he said.

"Sometimes they might get it right and sometimes they may not, and it's not fair to them."

Source of confusion

The lack of clear guidelines leaves school staff at risk of overstepping their rights to take things such as phones from students, said Wasyliw, who is also a criminal defence lawyer.

'The enhanced expectation of privacy our courts recognize in cellphones mitigates against allowing anyone to do warrantless searches.'- Brenda McPhail, Canadian Civil Liberties Association

"Right now you could have, theoretically, an administrator take a phone, search the phone, search the contents of that phone. They could force a student to give up a password. All those things could happen and there's no policy in place that would tell them that what they are doing is not right."

Manitoba Education Minister Ian Wishart said it is up to school divisions to develop their own disciplinary policies, and that the only approval they need is from the court in the event someone challenges a policy under the Charter of Rights and Freedoms.

"We presume the division will have legal advice as it develops policy in these areas. It's too early to comment further," the minister said in a statement.

The Manitoba Association for Rights and Liberties was pleased to learn the division is taking a closer look at the policy, as it hasn't been updated since the pre-smartphone era of 1999.

"What we're encouraged by is some clarification, because I think it's worse to not have any policy, and we're seeing a large discrepancy and teachers confused in what their role is," said Michael Barkman, executive director of MARL.

Civil rights paramount

But Brenda McPhail with the Canadian Civil Liberties Association said one outcome that needs to be seriously considered during policy talks is whether there ought to be a policy in the first place.

"It leaves open the option to develop policies that are either privacy protective or intrusive," said McPhail, privacy and technology director of the association's surveillance project.  

I don't think we want to be [in] a position to force somebody to unlock their phone, but when something like that happens, we need to have a protocol in place.- Mark Wasyliw

McPhail said while crafting guiding principles on "difficult issues where rights are engaged" is important, the rights of students and teachers must be respected rather than minimized.

"While schools may be zones of slightly diminished privacy expectations, the enhanced expectation of privacy our courts recognize in cellphones mitigates against allowing anyone to do warrantless searches," McPhail said.

"I think it's important to note that schools are also the place where we teach young people how to be active participants in our rights-respecting democracy, so the policies we enact in our schools should fit with the values we want to impart to students."

'Gross violation,' say teachers

The Manitoba Teachers' Society came out against the proposed policy, calling it a "gross violation of the Charter."

In an email, president Norm Gould said no employer has any right to search private property that belongs to students or teachers without their consent.

"Teachers, students and others don't give up their fundamental rights to privacy and security of person by walking into a school," Gould said. 

"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."

When to turn over what

Wasyliw views precedent in the courts a little differently. He said there's been cases when locker searches have been permitted and courts have ruled that students and staff have less of an expectation of privacy in school environments.

Locker searches are permitted on school grounds if there is, say, a suspicion a student brought a weapon into a school. That would be a case where safety concerns trump the student's privacy rights, Wasyliw said.

"An administrator isn't there to investigate crime, they're there to make sure that immediate circumstances, that children and other staff, are safe, and because [of] that, the courts have said there are less privacy rights under those circumstances."

In another hypothetical case, it's conceivable that in the absence of clear guidelines, a school administrator — operating on a hunch — might try to search a student's property without just cause, Wasyliw said.

Both represent arguments for why such a policy needs to be in place, he said.

Co-operating with police

Wasyliw said another issue that needs to be addressed relates to the limits on how much schools need to co-operate with police during investigations involving youth.

"That's what we have to have a discussion about, because I don't think you can make somebody unlock their phone, and I don't think we want to be [in] a position to force somebody to unlock their phone, but when something like that happens, we need to have a protocol in place," said Wasyliw.

"At that point, perhaps, that's when the phone's not allowed on school property, or that's when the parents are brought in."

Wasyliw planned to table the motion Monday night at a Winnipeg School Division board meeting, and members of the board are expected to vote on the motion at the Nov. 20 meeting. If it passes, the administration would then be tasked with researching and crafting a draft policy that is in keeping with the Charter of Rights and Freedoms.

From there, the draft policy would be put to the community for input before going back for revisions and a final vote.