Originally posted on the Ontario Bar Association’s Child and Youth Law Section website on May 1, 2015. Re-posted with permission from the author.
In Simon Gillies et al v. Toronto District School Board, 2015 ONSC 1038, Justice Himel of the Superior Court of Justice addressed the constitutionality of a mandatory breathalyzer test as a pre-condition of entry to a Toronto high school prom.
The case, which was covered extensively in the media, was precedent setting. Himel J. held the mandatory breathalyzer test was a violation of the students’ rights under section 8 of the Charter of Rights and Freedoms and could not be upheld under section 1.
Of particular interest is how the Court analyzed the argument that the applicants – who were children at the time – had effectively waived their rights by agreeing to go to the prom under the terms set out by the school board. Can children waive their constitutional rights? And if so, under what circumstances?
The applicants were students at Northern Secondary School in 2014 and attended the senior prom on May 29, 2014, at the Eglinton Grand venue in Toronto, Ontario. The principal of Northern supervised ten or eleven school proms. On one occasion, he assessed students for intoxication in order to permit or refuse entry to a school dance or prom. As principal of Northern, he assigned the responsibility to teachers to assess students for signs of intoxication at dances. On April 29, 2014, two days before tickets went on sale for the prom, the principal informed the School Council that he had decided to bring in the use of breathalyzer testing at the 2014 prom. He said that no student would be singled out and that all students would have to comply.
Overview of Legislative and Policy Framework
The Education Act and its regulations govern how principals are to maintain proper order and discipline of students enrolled at their respective schools. Under s. 265(1)(a) of the Education Act, the principal has the duty “to maintain proper order and discipline in the school” and under s. 265(1)(j) of the same Act, “to give assiduous attention to the health and comfort of the pupils.”
Additionally, the Northern Secondary School Code of Conduct states that “alcohol, illegal drugs and weapons … are NOT permitted on school property or at school-related activities” (emphasis in original).
Does the Charter Apply To The Actions of School Officials?
Section 8 of the Charter of Rights and Freedoms provides that “everyone has the right to be secure against unreasonable search and seizure.” However, the Supreme Court of Canada never expressly decided if the Charter applies to school officials, but rather has proceeded in a number of cases on the assumption, uncontested by the parties, that it does: see, for example, R v Cole 2012 SCC 53 at para 38; R. v. M. (M.R.), 1998 CanLII 770 (SCC), at paras. 24-25.
Himel J. concluded that the Charter applied to the TDSB, and the actions of the principle, even though the prom was being held off-site. Citing Chamberlain v. Surrey School District No. 36, 2002 SCC 86 (CanLII),  4 S.C.R. 710, her Honour noted Gonthier J. in dissent wrote at para. 121 that “there can be no doubt that the School Board is a branch of government and thus subject to the Charter.” She agreed with the applicants’ that the school authorities are carrying out a “quintessentially government function” to which the Charter should apply.
Can Students Waive Their Rights Under the Charter?
In R. v. Wills, 1992 CanLII 2780 (ON CA), Doherty J.A. held at para. 86 that “a valid consent is a waiver of one’s s. 8 rights. His Honour set out six criteria to be established on a balance of probabilities in order for the waiver doctrine to apply to an otherwise unauthorized search or seizure:
- There was a consent, express or implied;
- The giver of the consent had the authority to give the consent in question;
- The consent was voluntary in the sense that that word is used in [R. v. Goldman, 1979 CanLII 60 (SCC),  1 S.C.R. 976], and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
- The giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
- The giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and
- The giver of the consent was aware of the potential consequences of giving the consent.
The crucial question, as noted by the Court, was whether any consent was truly informed.
Himel J. accepted that students implicitly consented to the breathlyzer test by purchasing a ticket to the prom. Her Honour noted at para. 62 however that the “question of consent of persons under the age of majority is a complex one.” The Court’s analysis must focus on the specific circumstances in question. Fundamentally, the Court was satisfied that children can give or refuse consent and may waive constitutional rights in certain circumstances.
However, the Court was not satisfied that the students were presented with enough information to make a meaningful choice as required by the Supreme Court’s decision in R v Borden 1994 CanLII 63 (SCC),  3 S.C.R. 145. As explained by the Court at para. 72, far more than mere attendance at the prom was at issue:
The potential consequences of consenting to the seizure of a breath sample are much more than being denied entry to the prom and losing money: it is waiving a Charter right to be free from unreasonable search and seizure. It cannot be said that the giver of consent was prepared to waive a Charter protected right by purchasing a prom ticket.
The Respondents failed to meet this high onus and establish the students had in fact waived their rights under the Charter.
Could the Principal have done more to ensure valid waivers from the students were obtained? What constitutes a valid waiver of a child’s rights remains a thorny legal issue.
Traditionally, courts have expressed a dim view of the notion that children can waive their rights. For example, in Miller v Sinclar  O.J. No. 209 (Gen. Div.), in the context of a civil suit, Lerner J. stated that it is “hardly necessary to state that the infant plaintiff… and his sister were clearly not bound by their undertakings to waive any rights to claim because they were under the age of accountability”: para 20.
More recently, the Supreme Court of Canada has held that courts must recognize children and young persons’ “inherent vulnerability”: A.B. v Bragg Communications 2012 SCC 46 at para 17. Instruction to them from state authority figures must be in “language appropriate to their level of understanding” before any consent or waiver obtained from them may be considered valid: R v L.T.H. 2008 SCC 49 .
In the criminal law context, young persons can waive their rights under the Youth Criminal Justice Act (YCJA). But such waiver must come after they have been afforded the right to consult with counsel, and must be recorded, either in writing, or on audio tape or video tape: YCJA sections 146(2) and (4). The Crown must prove the waiver was informed on the high criminal standard of beyond a reasonable doubt: R v L.T.H., supra.
In Manitoba (Director of Child & Family Services) v. C. (A.), 2009 SCC 30, in the context of a child who wished to refuse consent to life-saving medical treatment, the Supreme Court commented on how the inherent vulnerability and reduced level of maturity associated with childhood affects children’s decision making abilities. While mature adolescents clearly had “strong claims to autonomy”, the difficulty of defining and identifying “maturity” resulted in a tension with the “protective duty on the part of the state”: see paras 82-86.
Abella J., writing for the Court at para 71, expanded upon this tension and the potential frailties of child decision-making on subjects of grave importance:
There is considerable support for the notion that while many adolescents may have the technical ability to make complex decisions, this does not always mean they will have the necessary maturity and independence of judgment to make truly autonomous choices.
Clearly, a high burden will be placed on all state actors – including school officials – to demonstrate children have been sufficiently informed of their rights and clearly understand what they are being asked to waive. Given their inherent vulnerability and challenges in making truly autonomous choices, a broad, holistic approach will be required: see Gillies et al at para 73.
Subsequent decisions in Ontario will hopefully help set clear parameters on when the rights of children may be validly waived. In the interim, the decision in Gillies et al. serves as an important decision illuminating the courts’ obligation to ensure the constitutional rights of our most vulnerable members – children – are afforded significant and meaningful safeguards at all times and in all contexts.
About the Author
Brock Jones, Ministry of Attorney General- Criminal Law Division – Crown Attorney’s Office
Any opinions expressed herein are solely those of the author and do not necessarily reflect those of the Ministry of Attorney General.