R. v. J.M. Date:, 2012 BCPC 126

Citation: R. v. J.M. Date: 20120424 2012 BCPC 0126 File Nos: 7689-2A; 7689-3C Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.M. YOUTH MATTER RESTRICTION ON ACCESS s. 118 and s. 110 Youth Criminal Justice Act ORAL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE DYER Counsel for the Crown: K. MacWilliam Counsel for the Accused: W. Shkwarok Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: January 25, February 1 and 8, 2012

Date of Judgment: April 18, 24, 2012 [ 1 ] THE COURT: The accused is charged on June 3rd, 2011 with two counts of possession of a controlled substance contrary to s. 4(1) of the Controlled Drugs and Substances Act . Count 1 is for possession of cannabis, and Count 2 is for possession of methamphetamine. June 3rd, 2011 was a Friday. He has pleaded not guilty to both counts. [ 2 ] At the outset of the trial before me, defence counsel alerted the Court that the defence is alleging that certain of the accused's important Charter rights were breached.

A voir dire was declared to deal with the alleged breach or breaches. [ 3 ] As I will set out more fully, defence counsel alleges that the accused's rights were violated in the following way: 1. On June 3rd, 2011, the accused was attending at Port Moody Senior Secondary School and was believed to possess illicit drugs. 2. The Vice Principal searched the accused's jacket which was located in the school locker assigned to the accused and located the alleged drugs. 3.

Following this, the Vice Principal called the police and a constable attended and seized the alleged drugs found in the jacket. [ 4 ] The parties agree that defence counsel bears the onus of proving the alleged breaches on a balance of probabilities and showing that the evidence should be excluded under s. 24(2) in the event that a breach is found. [ 5 ] Defence takes the position that the search was an unreasonable search in violation of s. 8 of the Charter and that the evidence should be excluded pursuant to s. 24(2) of the Charter . [ 6 ] Defence also takes the position that if the evidence is admitted at trial, the accused's rights under s. 7 of the Charter will be violated. [ 7 ] Crown's position is that the search did not violate s. 8 of the Charter, but that should the Court find a violation of s. 8, the evidence should not be excluded under s. 24(2) of the Charter .

Crown's written submissions do not indicate that the Crown takes a position on the s. 7 argument. FACTS NOT IN DISPUTE [ 8 ] In my opinion, the following facts are not in dispute in this case: 1. At the material time, J.M. was a Grade 12 student at school and where I refer to school, I am referring to the Port Moody Senior Secondary School. 2. The school's Code of Conduct set out in Exhibit 1 contained a policy against drug possession or use. This policy was known to the accused. 3. The evidence was found in the accused's jacket hanging in his locker. 4.

The accused was the only person with access to this locker. 5. He did not want his Vice Principal to look at his jacket and he tried to get it from her on the morning of the search. 6. The evidence was tested and found to be marihuana and methamphetamine pills. [ 9 ] I find these facts properly established only for the purposes of the voir dire .

SUMMARY OF EVIDENCE [ 10 ] The Crown called three witnesses: Ms. Lisa Rinke, Ms. Gina Duarte, and Constable Todd Lefebvre. Defence counsel called no witnesses and led no evidence. I will summarize the evidence given by each witness in turn. Ms. Lisa Rinke [ 11 ] The first witness to testify was Ms. Rinke. She is currently the Principal at Miller Park Elementary. At the time of the alleged offence, Ms. Rinke was the Vice Principal of the school. [ 12 ] She had known J.M. prior to the events of June 3rd, 2011.

She met with J.M. and one of his foster parents for the first time in April of that year regarding some attendance issues at school. In May, she had a meeting with J.M., his foster parents, and the school counsellor to address his work completion and attendance issues. [ 13 ] She testified that J.M. had come to the school in February 2011 from C.A.B.E., an alternative school. He had attended Port Moody Senior Secondary School before this but she had not been with the school at that time. She knew of his history of drug use, attendance issues, and work completion issues. [ 14 ] On cross-examination, Ms.

Rinke explained she had learned about J.M.'s issues with drugs at the time he was transferring from C.A.B.E. to Port Moody Senior Secondary School in a meeting with Ms. Duarte and the counsellor at C.A.B.E. They had discussed J.M.'s past and how they could support him to be successful and graduate.

[ 15 ] Ms. Rinke gave evidence as to a previous experience dealing with drug-related incidents involving students. She testified that she had disciplined six students for drug related events during her time at the school prior to June 3rd, 2011.

These students had brought marihuana or other banned substances to the school or were under the influence of narcotics while thereat. [ 16 ] In response to questions from the Court, she clarified that in two of these cases she had seized the drugs in question and in the other four cases had observed students under the influence but no drugs were ever seized. [ 17 ] In direct examination, she set out the school's practice for dealing with students found in possession or under the influence.

If the student was under the influence, the school's policy was to send the student home with a parent, to remind them of the school Code of Conduct, and to follow this discussion by administering a suspension or requiring attendance at a drug program offered in the district. [ 18 ] Ms. Rinke gave evidence as to the school's policy as of June 3rd, 2011 on searches of a student's person or property.

If school officials suspected a student of possessing drugs or weapons and wanted to search their locker, the policy was to have another adult present at the time of the search, as well as the student whose locker was being searched, if that student was at school. If a teacher had to search a student, she might ask them to empty their pockets or check their shoes. [ 19 ] On cross-examination, Ms. Rinke explained how she had learned that the students were in possession of narcotics.

In one case, she had heard from another student that the student had steroids in his possession and in the other the student had come into her office under the influence. In the first case the reporting person had seen the drugs. In the second, the student was suspected to be under the influence and when she asked him to empty his pockets, she found marihuana therein. [ 20 ] Ms. Rinke gave evidence on the school's policy on drugs. It was, as of June 3rd, 2011, against policy to allow possession of drugs on school property. The school had a "zero tolerance" policy on drugs, alcohol or weapons. [ 21 ] Ms.

Rinke was presented with the Code during her examination-in-chief and she stated that the school's Code of Conduct set out the expectations for student behaviour to ensure safe and orderly conduct for all students. This Code was in place on June 3rd, 2011 and she was familiar with it at the time. The Code was in due course marked as Exhibit 1 on the voir dire . [ 22 ] Ms. Rinke read a number of passages from the Code.

The first passage she read addressed the purpose of the Code and reads as follows: The Purpose of the Code of Conduct is to: establish and maintain a safe, caring and orderly environment for a positive learning and teaching climate clarify and outline school expectations and acceptable student conduct at school, in the community and while acting as school ambassadors ensure a positive human rights environment that cherishes openness, diversity, fairness, and equity encourage thoughtful and reflective citizenship [ 23 ] Ms. Rinke was then directed to the

section in the Code that identified unacceptable conduct. Unacceptable conduct according to the Code includes: Illegal acts, such as: possession or use of a weapon; possession, use, or trafficking of illegal chemicals, drugs or restricted substances …. [ 24 ] Finally, she read from a

section of the Code addressing consequences for unacceptable conduct as follows: Consequences will be applied to unacceptable student conduct. The consequence will be implemented based on the severity and the frequency of the behaviour. Progressive discipline methods will be implemented to alter the inappropriate and/or unsafe behaviour.

Consequences and the support will be preventative and restorative. [ 25 ] This Code was posted on the school website, in the student planners that every student of the school received, and it was posted throughout the school itself. [ 26 ] In cross-examination, she was asked further questions about her education law class. She confirmed that she took one education law class as part of her Masters degree. Defence counsel asked what she had learned in this course about the interaction between the school administration and police agencies.

She answered that they had learned that they were not to be agents of the police and that the school administrators were in charge of making their school safe and secure for students. She stated that she had not learned anything in the program or subsequently about assisting the police in dealing with crimes that may be occurring in the school. [ 27 ] Defence counsel asked in cross-examination how Ms. Rinke had assisted the police in the past.

She answered that at one time she had sought police advice about a rise in cell phone thefts and that once a month, school officials met with all of the liaison officers to discuss crimes that were taking place in the area. Her evidence was that they did not discuss specific students at these meetings. [ 28 ] In cross-examination, she confirmed that the school worked closely with the Port Moody Police. These police did check in with the school one time a week on such matters as to whether there were children at risk and whether there was information that the school officials needed to share with the police.

On further questioning, she clarified this reference to children at risk. If a child was known to the Ministry of Children and Families, the school was mandated to report out to the Ministry on these children's attendance and academic standing. [ 29 ] Defence counsel asked her, as well, if when they meet with the police they seek advice on criminal matters. Ms. Rinke said

that they did not. [ 30 ] On cross-examination she confirmed that she had spoken to the police during the time she was at school about students who had come into contact with police. She stated that she only dealt with one student that had been charged, an international student who needed help locating the parole office. [ 31 ] Ms. Rinke gave evidence on the locker assignment procedure at the school. New students are assigned to a home room and the home room teacher assigns each student a locker and a lock. Each home room maintains a printed log of the lockers assigned to that home room.

This log contains the locker numbers, the associated lock combinations, the lock serial numbers, the name of the student the locker was assigned to, and a space for each student to sign. This log exists so that the school can maintain access to the lockers at all times. The home room teacher tells the students that the school has this information. The students must also sign the space in the log next to their lock combination in order to get a locker.

This procedure is in place so that the school has access to the lockers so the students are responsible for the contents of their lockers and, as well, for reasons of safety. [ 32 ] On cross-examination Ms. Rinke admitted that there was no statement on the form that school officials had a right to search the lockers. She admitted that she did not know if J.M. had signed the form or not. She did not have a copy of the type of form that J.M. may have signed and stated that generally at the end of the school year the information is shredded.

She did state if he had refused to sign the form he would not have been assigned a locker and a lock in the school. On cross-examination she stated that the lockers were not shared. To her knowledge, J.M. was the only student who used the locker assigned to him. [ 33 ] She was asked in her direct examination if, to her knowledge, the School Act or Regulations thereunder provided school staff with the authority to search lockers. She did not answer this question in the affirmative but did say that the School Act and its Regulations were part of her training in education law.

This training addressed how to conduct locker searches so that children were not embarrassed and so that parents were not concerned. [ 34 ] Ms. Rinke gave evidence as to the events of Friday, June 3rd, 2011. She stated that counsellors at the school meet with the Vice Principals in the morning and discuss students they are concerned about. Such a meeting took place and Ms. Duarte and Ms. Rinke discussed J.M. He had not been attending school regularly and the graduation dinner was the next day.

They decided to meet with J.M. in order to give him a pep talk, encouraging him to attend classes and finish school. [ 35 ] There was some inconsistency in Ms. Rinke's evidence about the exact timing of this meeting. In response to the Court's question, she said that J.M. came to her office at between 9:00 and 9:30 a.m. On cross-examination she stated that she thought the meeting was between 8:30 and 9:30 a.m., but confirmed on being presented with her statement to the police of June 3rd, 2011, that she had given the start date of the meeting in her statement as 9:10 a.m.

She confirmed in re-examination that she did not take notes on the timing of her interactions with J.M. on June 3rd. She described the events of June 3rd as follows. [ 36 ] J.M. and Ms. Duarte came into her office and closed the door. She was not sure if Ms. Duarte took J.M. out of class or if he came on his motion. Ms. Duarte and J.M. sat on one side of her desk and she sat across from them. She and J.M. spoke about the graduation dinner/dance. She knew it was important for him to attend and was trying to give him a heads up to be sober at the dinner/dance. She stated that Ms.

Duarte had been working with him to help him submit his assignments. He had his binder with him. [ 37 ] While J.M. was speaking with Ms. Rinke, Ms. Duarte asked him for the binder saying, something to the effect, that she would help him get his assignments organized for his home economics class. It seems he gave it to her without objection. [ 38 ] The binder had some sort of zipper or catch on it and as soon as Ms. Duarte opened the binder, the smell of marihuana became overwhelming. This was the first time Ms.

Rinke had noticed this smell and she testified that she had no suspicions before the binder was opened, that J.M. might have marihuana on him. [ 39 ] At that time, Ms. Rinke assumed that there must be marihuana in the binder. Either she asked to see the binder or Ms. Duarte checked through it. There was no marihuana found in the binder. On cross-examination she confirmed that there were no marihuana leaves, joints, or resin in the binder. She also testified J.M. did not then appear to be under the influence of marihuana. [ 40 ] After the binder was opened and Ms.

Rinke smelled the marihuana, she also asked J.M. about his prior weekend. She did not say how he responded to this question. [ 41 ] She testified that the school works very closely with the police liaison officers and that it had been brought to her attention on Monday of the week in question that J.M. had been picked up over the prior weekend and that an illegal search had then been conducted. She was aware that the officers had found a scale and some marihuana. Ms. Rinke acknowledged that the school had not taken any action after receiving this information.

On cross-examination she clarified that she had come to the understanding that J.M. was not charged with an offence because it was illegal from her conversation with Luke, a Port Moody Police officer. She said that she may have picked up the terminology of calling it illegal from watching television. [ 42 ] On cross-examination it was put to her that in the police statement she gave to Constable Lefebvre, immediately after the events, she had stated that this call came from an individual named Luke.

She confirmed that Luke was their other police liaison officer but she could not recall his full name. [ 43 ] Defence counsel told her that she stated in her statement that she received a call on the Tuesday prior to June 3rd, rather than on the Monday as she had said in her direct examination. She confirmed that the statement had been given immediately after the events. She explained the inconsistency by stating that she had not taken notes of when Luke had phoned her. She was not certain whether the phone call had taken place on the Monday or the Tuesday. [ 44 ] Defence counsel put it to Ms.

Rinke that Luke had advised her to bring J.M. into her office and discuss his behaviours with her. She denied that this was the case.

[ 45 ] The accused was also asked after the binder was opened, according to Ms. Rinke, if he had marihuana on his person and he said he did not. Ms. Rinke felt that due to the smell they needed to check his locker and advised him of this intent. She stated to the Court that her reason for the search was that the smell of marihuana in his binder had led her to believe there might be drugs in his locker.

She did not know anything about where the binder had been previously or whether or not J.M. had been to his locker on the day in question. [ 46 ] She also testified as to her familiarity with the smell of marihuana. She said she was fairly familiar with the smell. She has had to confiscate marihuana from students in the past. All of the marihuana she has confiscated in the past had been fresh. She has also smelled marihuana on a student's clothes.

When asked if she was familiar with any distinction between fresh and smoked marihuana, her testimony was to the effect that the only distinction was the strength of the smell; that fresh marihuana smells a lot stronger than smoke on a student's clothing or person. She said that the smell from the binder was very strong. [ 47 ] On cross-examination she admitted that she could not tell if the smell was of fresh or burnt marihuana.

She confirmed that she had not had any training that allowed her to definitively state when or if something has held marihuana. [ 48 ] On cross-examination she admitted that her only personal experience that would allow her to determine when marihuana was present was her experiences in seizing it from students. [ 49 ] Defence asked Ms. Rinke whether marihuana had a "skunky" smell. She did not express agreement with this statement. She maintained that the smell in the office smelled like marihuana. She denied that it could have been something else.

She had never smelled another substance that smelled like marihuana. On defence counsel insisting "But it could be possible that it was something else other than marihuana that you smelled", she answered "Anything's possible". [ 50 ] Ms. Rinke described the search of the locker itself. She, Ms. Duarte and the accused, walked from her office to his locker. She asked him to open his locker and he did so. Once he had opened his locker, he looked in his jacket pocket. Ms. Rinke assumed he was checking for his cell phone. His behaviour changed at that point and he became quite agitated.

He stepped back and was standing with Ms. Duarte within about two feet of Ms. Rinke. She started to search the locker and could see no drugs. She went through his books and gym things and found a number of the typical sorts of items she would expect to find in a student's locker including a couple of cell phones, a camera, and books. Once she had searched through the main part of the locker, she put these items back in the locker. [ 51 ] Then she took his jacket in her arms. He pleaded with Ms. Rinke not to check the jacket. He appeared to be very upset.

She told him they would go back to her office and look at it there. She did not want anything to happen in the hallway. As they started to move away from the locker, he tried to grab the jacket out of Ms. Rinke's arms and in the process ended up pushing her into the locker. At that point, Ms. Rinke ordered J.M. off the school grounds and Ms. Duarte accompanied him off the grounds. [ 52 ] Ms. Rinke then took the jacket to her office. She went into her office, shut the door and checked the jacket.

She found what she believed to be marihuana in the jacket, some items she could not identify, some pills with something in them and about 50 empty capsules. She called 9-1-1 at that point. She left her office and shut and locked the door behind her. She stood at the door until the police arrived. [ 53 ] She estimated that Constable Todd Lefebvre attended at the school within ten minutes of her call. When he arrived he came into her office with her and examined the jacket's contents and then took the jacket and its contents into his possession.

In cross- examination, she estimated that approximately 30 to 40 minutes elapsed from the time J.M. entered her office to the time he left the school and confirmed on defence counsel's questioning that this would be from approximately 9:10 to 9:50 a.m. [ 54 ] On cross-examination she confirmed that Constable Lefebvre attended at the school between 10 and 15 minutes after making the call. She did not know when she made the call but estimated it to be around 9:40 a.m. Defence counsel asked if it is fair to say that it was closer to 9:25 a.m. and she did not know. It seemed a lot longer. As noted earlier, Ms.

Rinke confirmed in re-examination that she did not take notes on the timing of her interactions with J.M. on June 3rd, 2011. [ 55 ] In cross-examination she confirmed that he was not in the school when the police arrived. [ 56 ] In cross-examination she also confirmed that in April 2011 she had met with J.M., his foster parents, and his counsellor. This meeting took place because his foster parent called the Port Moody Police after she found marihuana in his room.

The foster parents were concerned about his attendance, work completion, and drug use, so the five of them sat down to see how they could support J.M. [ 57 ] On cross-examination she confirmed that she found the information from his foster parents to be reliable information. She confirmed that she did not undertake a locker search at this point. [ 58 ] In cross-examination defence counsel put it to her that the true purpose of her meeting with J.M. on June 3rd, 2011 was to advise him that she was aware of the police stop on the previous weekend and that she wanted to give him a heads up about his behaviour.

She denied this. She maintained that she and Ms. Duarte met him to discuss his attendance and work completion issues. [ 59 ] On cross-examination Ms. Rinke admitted that at the time that she smelled the marihuana during the meeting, there was no immediate threat to other students and confirmed that J.M. could not get to his locker while he was in her office.

She confirmed that it did not occur to her to contact the police and advise them of what she believed was taking place. [ 60 ] On cross-examination she confirmed that on June 3rd there were no other reports by students or staff that J.M. may have had other drugs on him while he was in the school. She also confirmed that she did not know that he had drugs in his locker at the time of the meeting. [ 61 ] Ms. Rinke's statement to the police on June 3rd, 2011 was put to her in cross-examination. On defence counsel's request, she read aloud her police statement, specifically the following at p. 2 of 4, lines 38 to 44:

During that meeting, Gina asked him about a homework assignment and he handed over his binder to her to take a look for it because he was talking to me about the situation that occurred on the weekend. When Gina unzipped his binder it smelled completely like marihuana in my office which made me think that possibly he may have some marihuana in his locker or something like that. [ 62 ] Defence put it to Ms. Rinke that the locker search was in fact based on a hunch. She denied this. She also denied that she checked the locker because of the information she had received from police about the prior weekend.

She stated that if she was basing the locker search on this information, she would have checked his locker on the Monday. She maintained that a decision on Friday to search the locker was based on the smell of marihuana emanating from his binder. [ 63 ] She denied in cross-examination that it was only after her conversation with the Port Moody Police and learning that J.M. was stopped the prior weekend and that an illegal search had been conducted that she had chosen to do a locker search.

She stated that if this had been her intention, she would have conducted the search on the Monday or Tuesday. [ 64 ] Defence counsel also directed Ms.

Rinke to read from her police statement at lines 34 to 38 on p. 2 as follows: He arrived at school this morning at 9:10, and Gina Duarte our counsellor and I met with him to ask him what happened this weekend and [J.M.] said that he had been pulled over by the police, that his friend had put some marihuana into his binder, but that he had been caught with a scale. [ 65 ] On cross-examination when her statement to the police was put to her, she confirmed that one of the purposes for the meeting with J.M. was to speak with him about the events of the weekend.

Defence asked if she formed the intent to speak to him about the events of the weekend prior to his opening his binder. She denied this, though she recognized what she had stated to the police, namely, that she had not spoken about the work completion and attendance issues. She confirmed the Court's understanding of her evidence on this inconsistency. When she was speaking to the police, she did not feel she needed to speak about the work completion and attendance issues as she felt the focus there was, instead, on the drug issue. [ 66 ] I turn now to the evidence of Gina Duarte. Gina Duarte [ 67 ] Ms.

Duarte was at trial currently a school counsellor at the school and was also working in this position at the time of the alleged offence. She gave the Court some background on her history with respect to with J.M. and her dealings with him prior to June 3rd. [ 68 ] He came to their school at the start of Semester 2 at the end of January 2011. He was then in Grade 12. She had met with him from time to time in her capacity as a school counsellor. These meetings were not a regular set time but were arranged as needed.

She was working with his teachers to ensure he would complete assignments and encouraged him to attend school and make good choices. The ultimate goal was for him to graduate. [ 69 ] At the beginning of April, he had been placed on an attendance booklet program. Students on this program must take an attendance booklet around to all of their classes for the teachers to sign. He would get his teachers to sign the booklet and he would bring the booklet to Ms.

Duarte at the end of the school day to sign as well. [ 70 ] On cross-examination, she stated that the purpose of the program was to encourage him to improve his attendance at school. She estimated that she met with him a couple of times while he was on the attendance program but she could not recall the exact number of times. Ordinarily on the attendance program booklet she would meet with a student every day but he was not following through with the program. [ 71 ] On cross-examination she agreed it would be fair to say that these meetings lasted somewhere between one to ten minutes typically.

She described her office in which these meetings took place. [ 72 ] The essence of her evidence on this point was that she would have been able to smell marihuana on him during these meetings if he had had marihuana on him but that she had never smelled any. [ 73 ] Ms. Duarte confirmed that she had spoken with his foster parents. She stated that she spoke on the phone with his foster mother and had a formal meeting for the first time with the foster parents in May of 2011. She had met the foster mother prior to this date but not in a formal meeting.

The people present at the May 2011 meeting were the foster mother, herself, Ms. Rinke, and J.M. [ 74 ] On cross-examination she stated that at the time of the May 2011 meeting she had no concerns about his possibly trafficking in drugs. There was a concern that he had drugs in his possession at school because of his previous actions at the school. He had been suspected from Port Moody Secondary School in Grade 10 for possession of drugs. [ 75 ] She was not his counsellor at the time so she did not know if that matter in Grade 10 went to the police or not.

The purpose of the May 2011 meeting was to discuss attendance, work completion issues, and concerns about his substance abuse. They wanted to make sure that he would make good decisions so that he could finish his courses and graduate. She recalled that he actively and voluntarily participated in this meeting. [ 76 ] Ms. Duarte described for the Court her experiences with drug related incidents over her career at Port Moody Secondary School up to June 3rd, 2011.

She stated that where a student was suspected to be under the influence of drugs, she would refer them to the administration and the administration would look into the matter. She has taken

part in training with respect to substance abuse by students. [ 77 ] She also ran a group of students to help them self-assess and make good choices regarding drug abuse and alcohol. Her evidence on cross-examination was to the effect that the goal of the program was to get students to assess their own use of drugs.

[ 78 ] On cross-examination she admitted that this training did not include the detection of marihuana. Her evidence was that the number of drug related incidents per year varied. If the student in question is in her caseload as a counsellor she is generally notified of the incident. There were at least one or two such incidents a year. If she herself was not the person who detected the drugs, she would normally become involved with a student on her caseload who was going into the asset program which is a one-day program offered as an alternative to suspension for students caught with drugs.

She meets with students before and after they attend this program. She is not always involved in searches of students or their lockers. Her evidence was to the effect that she became involved in the search of J.M.'s locker because she and Ms. Rinke were both in attendance at the initial meeting with him when the smell of marihuana was detected. [ 79 ] She confirmed that she was aware of the incident that had occurred over the weekend prior to June 3rd, 2011. She was informed that he was in possession of a scale at this time.

On cross-examination she confirmed that she received information from a person by the name of Luke with respect to J.M. being stopped by the Port Moody Police on this weekend. She could not recall whether Luke called her or was in contact with the school administration. [ 80 ] Ms. Duarte gave a statement to Constable Lefebvre on June 3rd, 2011. This statement was put to her in cross-examination by counsel. She agreed that her recollection of the events at the time that she gave her statement was clearer than it was in court on the day she testified before me.

Defence counsel directed her to read the following passage from the statement at p. 1, lines 26 to 32 as follows: In regards to today I received a call from Luke yesterday stating that [J.M.] was found with 50 grams of pot and a scale.

So with our concerns with [J.M.'s] history we need to speak to him this morning because our administration has said that if [J.M.] was found with any in any situation that might point to him dealing drugs that he would not be able to go to the grad dinner and dance. [ 81 ] On cross-examination she confirmed that according to this statement she received the call from Luke on Thursday, June 2nd, 2011.

To her knowledge, this was the first date that the school was advised that J.M. had come into contact with police on the prior weekend. [ 82 ] On questioning by the Court, pointing out that in her evidence she had stated that she was not sure if she received a call from Luke herself or if she was told by the administration about the weekend stop, she adopted her statement for its truth in this regard. [ 83 ] On cross-examination she said that she learned from this conversation that J.M. had a scale and marihuana.

To her knowledge there were no subsequent legal proceedings as a result of that stop. [ 84 ] On cross-examination she admitted that as of late May and early June 2011 she had not received any information from students or staff at Port Moody Secondary that J.M. was involved with illegal drugs at that time. [ 85 ] She stated that the meeting of June 3rd, 2011 was not planned ahead of time but that she and Ms. Rinke had wanted to meet with J.M. so Ms. Duarte asked him to leave class to attend the meeting.

They wanted to see if his assignments were complete and as well wanted him to be able to participate in graduation. They also wanted to talk to him about his attendance. She asked him to meet with her and Ms. Rinke. They wanted to make sure that he had his foods assignment in because he had been falling behind in handling these assignments and in handing them in in a timely way.

They also wanted to talk to him about good decision making so that he could participate in grad activities and to encourage him to attend classes. [ 86 ] Her evidence in examination-in-chief was that the incident on the prior weekend was not a factor in her decision to ask him to come out of his class with her to attend the meeting. [ 87 ] In cross-examination she admitted that one of the purposes of the meeting was to discuss the police stop on the weekend prior as part of their discussion with J.M. about making good choices so that he could attend graduation activities.

She could not recall if they discussed the police stop with J.M. in the June 3rd meeting. [ 88 ] On cross-examination she was asked if the information she received from Luke, as to what he was allegedly doing on the prior weekend, led her to believe that he was dealing drugs. She admitted that this sort of information would lead her to believe that there would be a possibility he was dealing drugs. [ 89 ] As to the June 3rd meeting, Ms. Duarte stated that when J.M. was in the office, she and Ms. Rinke asked him for the assignments. Her evidence was that he then pulled out his binder and opened it.

When he opened it, the smell of marihuana was very strong. She looked through his binder, and then the three of them walked to his locker. [ 90 ] She testified as to her experience with the smell of marihuana. She stated that she recognized the smell of marihuana from previous contact with students including students who were under the influence and had told her that they had been smoking marihuana.

The smell from the binder was the same smell she had noticed on these occasions. [ 91 ] On cross-examination she confirmed that her personal experience in the detection of marihuana as of June 3rd, 2011 was in the context of dealings with students. She testified that she would not recognize a difference in smell between fresh marihuana and marihuana that had already been smoked.

She believed that fresh and burnt marihuana smelled the same. [ 92 ] On cross-examination, when asked again if she could differentiate fresh and burnt marihuana, she stated that she assumed that either fresh or burnt marihuana smelled stronger but that she was not 100 percent sure which. [ 93 ] On cross-examination defence counsel put it to her that the smell of marihuana resembled the smell of a skunk. She disagreed and stated that to her they did not smell the same. The office the meeting had taken place in was small. Ms. Duarte estimated it was about five feet by five feet in size.

She did not smell anything resembling marihuana prior to the binder being unzipped and J.M. did not appear to be under the influence. [ 94 ] Crown asked if any conversation arose out of the smell and Ms. Duarte said they were looking for his assignments at the time so the conversation was around looking for these.

[ 95 ] In clarifying how the binder changed hands, her evidence was that once J.M. opened the binder, she asked him for the binder and then started to look through it. She smelled the marihuana when the binder was opened. Her purpose in asking for the binder was to look for his foods assignments. She stated that she was also looking to see if there was marihuana in the binder itself and she did not find any. [ 96 ] Ms. Duarte said there was no resistance on his

part in providing the binder to her. The decision to search was made after she went through his binder. On questioning by the Court, Ms. Duarte said it was probably a joint decision. In cross-examination she said that she and Ms. Rinke both agreed that a locker search was the appropriate action to take. Her evidence was that it was the smell in the binder that led her to believe there might be marihuana in the locker because the smell was so strong. She did not know if J.M. had been to his locker on the morning in question.

She did not know if the school had a policy on locker searches though she believed that the district did. She was not familiar with the policy at the time. [ 97 ] On cross-examination she confirmed that J.M. was separated from his locker at the time she and Ms. Rinke made the decision to search the locker. He was still in Ms. Rinke's office. His locker is upstairs on the second floor of the building on the other side of the school. [ 98 ] Defence proposed there was no immediate threat to student safety with respect to the drugs possibly in his locker while he was meeting with her in Ms. Rinke's office.

She agreed that this was the case if he was the only person with access to his locker and agreed that the lockers were not shared to her knowledge. [ 99 ] On cross-examination Ms. Duarte admitted that she did not consider calling the police to deal with her concerns about J.M. after noticing the smell coming from the binder. She stated that they did not consider this because they had not found any drugs and they were following the procedures set out in the School Act . [ 100 ] On request from the Court for clarification to this reference to the School Act , Ms.

Duarte stated that her understanding of the School Act was that if there was a suspicion of either an illegal substance or weapons they could do a search and two people were usually present. If a substance was found they could contact the police or police liaison officer and hand the substance over to them. She did not know if the School Act was provincial legislation. [ 101 ] On cross-examination her evidence was that she could not recall asking J.M. at any time during this meeting to remove his shoes and socks. As well, she admitted that he would complete homework as needed in the school office.

She could not recall specifically when this occurred but her evidence was, essentially, that it was at some point during the school day. She stated that he did not appear to be under the influence at these times and she did not smell any odour of marihuana coming from him. [ 102 ] Ms. Duarte gave evidence on the search of the locker itself. She and Ms. Rinke and J.M. walked to his locker. He opened the locker and she stood beside him as Ms. Rinke checked the locker. His demeanour at the time was a little uneasy. Ms. Rinke removed things from the locker as she searched it. She found two cell phones and a camera.

No drugs were found in the locker. [ 103 ] His jacket was also in the locker and Ms. Rinke went to check it. He asked them not to check the jacket and he became agitated. So they said they would go to Ms. Rinke's office to check the jacket there. He went to grab the jacket from Ms. Rinke and pushed her at the same time. Ms. Rinke then asked him to leave the school property. He initially refused and wanted his jacket back so Ms. Duarte asked him to walk with her. She walked him off the school property and asked him to go home. She could not recall the exact time she asked him to go home but it was right after Ms.

Rinke asked him to leave school property. [ 104 ] She did not recall the time that the meeting started. She believed that it was maybe half an hour from the beginning of the meeting to the point at which time he left the school property. [ 105 ] After walking him off the school property, Ms. Duarte returned to the school. She phoned his foster mother to explain what had happened and asked her to contact Ms. Duarte when he got home, which the foster mother later did. [ 106 ] Ms.

Duarte did not see any of the drugs that were found during the search. [ 107 ] On questioning by the Court, she provided further information on the locker assignment procedure in the 2010/2011 school year in each Grade 12 homeroom and approximately 20 to 30 students. [ 108 ] Each homeroom had a homeroom teacher and this teacher had a list of lockers for the students in that homeroom. There was also a locker list for extra lockers for new students who came into the school.

At the beginning of the school year, the homeroom teacher for each home room would assign a locker and a lock combination to each student in his or her homeroom. Ms. Duarte could not recall if the students signed the locker list or not. Once the school year is under way, the locker list is sent to the office where it is stored. [ 109 ] On questioning by defence counsel, she admitted that to her knowledge there was no written information where the student provided his or her consent to a locker being searched on the locker list.

She confirmed that there was just one large list per homeroom and it was not individually handed out to the students. [ 110 ] Finally, I turn to the evidence of Constable Todd Lefebvre. He was an approximately seven-and-a-half year veteran of the Port Moody Police Department. Prior to his appointment here, he was with the Vancouver Police Department for approximately 20 months. He currently works with the detective constables in the Major Crimes

section of the Port Moody Police. [ 111 ] At the time of the alleged offence, Constable Lefebvre was a constable in the Youth Services position. This position is similar to a school liaison officer. His evidence in direct and in cross-examination was to the effect that the Youth Services

section of the Port Moody Police deals with youth in both the schools and in the community. [ 112 ] Constable Lefebvre's evidence is that around 9:20 a.m. on June 3rd, 2011, he received a call on the police radio from dispatch

advising that they had received a call from Ms. Rinke requesting an officer attend at the Port Moody Secondary School. Constable Lefebvre told dispatch that he would attend at the school and arrived there within five minutes of the call and immediately went to Ms. Rinke's office. [ 113 ] There, he spoke with her and she gave him the drugs. He also took audio statements from her and Ms. Duarte. Afterwards, he spoke with Ms. Rinke about what they thought the substances were, and he told Ms. Rinke that he would have them analyzed.

They discussed possible charges. [ 114 ] At 12:15 p.m., he attended at the accused's residence and spoke with the accused and his foster mother. He told them that there would be an investigation and possible charges. [ 115 ] A woman from the Ministry of Children and Family Development arrived at that point because when a child in foster care gets into trouble, the Ministry sends a representative. [ 116 ] After explaining the situation to her, Constable Lefebvre returned to the detachment.

At 12:40 p.m. he put the drugs into a temporary locker at the Port Moody Police Department and he later removed them from this locker. He discussed the grounds for charges with a colleague around 12:50 p.m. and they felt they had grounds for same. [ 117 ] At some point after 12:50 p.m., Constable Lefebvre called J.M.'s residence and informed his foster mother that the police would be laying charges against J.M. He arranged for her and J.M. to attend at the Police Department. [ 118 ] She and he arrived at the Police Station at approximately 1:40 p.m. The police then arrested and charged J.M.

At around 2:15 p.m. he was released to his foster mother on an undertaking and promise to appear. [ 119 ] At some point after this, Constable Lefebvre removed the items found in J.M.'s jacket from the temporary locker and examined them. [ 120 ] He described for the Court the items and the package they were found in. The package was a white plastic bag bearing a Save- on Foods label. Inside this bag were eight tiny Ziploc bags containing the alleged marihuana inside a medium sized Ziploc bag. He weighed each tiny bag individually. Their total weight was 9.3 grams.

He weighed an empty tiny Ziploc bag and it weighed .7 grams. He numbered the bags and took a sample from bag number 7. He put that sample in an H-envelope and sent it to Health Canada to be tested. The Certificate of Analysis from Health Canada confirmed that the sample tested was cannabis marihuana. The Certificate and H-envelope were entered as Exhibit 2 on the voir dire . [ 121 ] Inside the Save-on Foods bag, Constable Lefebvre also found one tiny Ziploc bag containing nine clear capsules with a brown granular substance inside.

He weighed the capsules individually and found that each weighed .2 grams for a total weight of 1.8 grams. He placed one capsule in an H-envelope and sent it to Health Canada for analysis. The Certificate of Analysis stated that the substance was methamphetamine. The Certificate and H-envelope were entered as Exhibit 3 on the voir dire . [ 122 ] The final item inside the Save-on Foods bag was clear Saran wrap tied in a knot containing white powder and weighing 15.1 grams. Constable Lefebvre took a sample of the powder weighing .6 grams, placed it in an H-envelope and sent it to Health Canada for analysis.

Health Canada was unable to identify the substance within the meaning of the Controlled Drugs and Substances Act or

Schedule F to the Food and Drugs Act . It was identified as a non-controlled substance. This item was not entered as an exhibit at trial. [ 123 ] Apart from his report to Crown counsel, this was the extent of Constable Lefebvre's involvement in the investigation. [ 124 ] During his direct examination he also provided some information on his dealings with J.M. prior to June 3rd, 2011.

He stated that he had known him and his foster mother over the past four years and that he and she had spoken over the years about her concerns about J.M. [ 125 ] On cross-examination Constable Lefebvre stated that he had first come into contact with J.M. early in his tenure as a Youth Services officer in September of 2007 and had known of him over the years and was aware of his past in foster care. [ 126 ] He acknowledged that the Youth Services

section of the Port Moody Police Department has a good relationship with the school administrators. [ 127 ] On cross-examination he stated that he could not recall ever having attended school meetings between J.M., his foster mother, and the school administration at Port Moody Secondary School. He had attended meetings with the school administration at the school dealing with youth involved in criminal activity. He stated that the Port Moody Police worked closely with the administrators.

The police often attend meetings about misconduct of a child with the child's parents, and the administrators, but he did not think they had had such meetings with J.M. [ 128 ] On cross-examination he acknowledged that the school had sought his advice with respect to J.M. on criminal matters. He stated that they had sought advice because J.M. had been expelled from Port Moody Secondary and then went on to Pinetree where he continued to have issues and then went on to C.A.B.E. [ 129 ] Finally, on his cross-examination he confirmed that he had spoken with Ms. Rinke and Ms.

Duarte about their concerns about J.M. within the past couple of years. Specifically, they had then discussed that he was returning to the school in February 2011. Constable Lefebvre stated that Ms. Rinke had made the Port Moody Police aware that J.M. was returning to the school and that they had concerns about his attendance and drug use. Defence counsel asked Constable Lefebvre what he had told Ms. Rinke when she expressed these concerns. He said he did not think that he had given her any advice as she was aware of the situation and the police did not have to tell her anything she did not know.

POSITION OF THE PARTIES

[130] I have reviewed all of the written submissions filed with the Court. What follows is a brief

summary and is not intended tocover every argument raised by each counsel. Defence Position [131] Defence counsel sets out his position in his written submissions and in reply to Crown counsel's submissions.

Defence submitsthat the search of the accused's locker and jacket breached s. 8 of the Charter and that the evidence should be excluded under s. 24(2). [132] Defence counsel also argues that the accused's s. 7 rights will be violated if the evidence is admitted at trial because theaccused's likely conviction will be based on an improper search. [133] In addressing the alleged s. 8 breach, defence counsel submits that Ms. Rinke and Ms. Duarte were acting as agents of the policeand, thus, that a warrant was required under the circumstances. [134] The essence of his argument on this point appears to be that Ms.

Duarte and Ms. Rinke's search were subject to the standardapplied to police as opposed to a modified standard applicable to teachers because they were agents of the police. [135] As evidence of this proposition, defence points to the two contacts by the police with the school about the accused's police stopon the prior weekend to June 3rd, 2011, the closeness with which the police worked with the school, and the timing of the locker search.

He submits that but for the contacts from Port Moody Police advising of their intervention with the accused, the meeting on June 3rd,2011 with the accused would not have taken place. He submits that the primary motive for the meeting on June 3rd, 2011 was the factthat the accused had been stopped by the Port Moody Police on the prior weekend. [136] Defence counsel further submits that the cases submitted by Crown, namely, R. v. M.R.M., (SCC), [1998] 3S.C.R. 393, R. v. M.W.S., 2005 BCPC 213 , [2005] B.C.J. No. 1270, R. v. S.M.Z., [1998] M.J. No. 587 and R. v. W.J.J., [1990]M.J.

No. 73 are distinguishable on the facts as the school officials in these cases did not receive their information from the police. [137] Distinguishing these cases on this basis offered by defence counsel does appear to require this Court to make a factual finding,namely, that Ms. Rinke relied on the information from the police informing the decision to search the accused's locker rather than basingthis decision on her own and Ms. Duarte's observations of the smell of what they believed to be marihuana. [138] Defence submits that the search of the locker itself was unreasonable.

In essence, he argues that the accused had a reasonableexpectation of privacy in his locker and that this expectation was not diminished because it was not made clear to the accused that heshould have a lessened expectation of privacy. Defence points out that no evidence was introduced to prove that the accused signed awaiver acknowledging his locker could be searched. [139] Defence submits that Ms. Duarte and Ms.

Rinke did not have reasonable grounds to conduct a search as they had no physicalevidence of marihuana use in the binder and could not identify the smell of the marihuana as being either fresh or burned. [140] With regards to the significance of the smell of burnt versus fresh marihuana, defence cites the case of R. v. Mondor, [2008]B.C.J. No. 2663 and R. v. Janvier, 2007 SKCA 147 , [2007] S.J. No. 646.

I will return to these cases shortly. [141] Defence further submits that the fact there was no immediate threat to the students at the school while the accused was in theVice Principal's office indicates that the search was unreasonable. [142] Defence counsel also submits that the evidence should be excluded under s. 24(2) of the Charter because Ms. Duarte andMs. Rinke were agents of the police. The police should have known that advising Ms. Duarte and Ms. Rinke of the police stop on theprior weekend would cause them to address that issue with the accused.

The search was unreasonable and applying the four-pronged testin R. v. Grant, 2009 SCC 32 , [2009] S.C.J. No. 32 favours the exclusion of the evidence rather than its inclusion. [143] Defence relies on the following authorities as well: • R. v. Broyles, (SCC), [1991] S.C.J. No. 95 • R. v. Truong, [2011] B.C.J. No. 2078 • R. v. Mondor, supra • R. v. Payette, [2010] B.C.J. No. 1741 • R. v. Janvier, supra • R. v. Hood, [2008] B.C.J. No. 1441 • R. v. Grant, supra.

Crown Position [144] The Crown argues that there was no breach of s. 8, but that if the Court finds that there was a breach, the evidence should not beexcluded under s. 24(2) of the Charter. The Crown's written submissions do not indicate a position on the s. 7 argument I expectbecause it seems to depend upon my finding with respect to a s. 8 breach. [145] Crown submits that Ms. Rinke was not an agent of the police, that the evidence suggests that the search would have occurred inthe form and manner in which it did whether the police were involved or not. Crown's submissions do not address whether Ms.

Duartewas an agent of the police.

[ 146 ] In support of the argument that Ms. Rinke was not an agent of the police, Crown notes that no police officer was present during the locker search, and the search occurred nearly a week after the information was received from the police about the accused's involvement in drug activity allegedly over the prior weekend. The Crown submits that the Court cannot infer from mere communication between the two entities that Ms.

Rinke was a police agent. [ 147 ] The Crown further submits that the accused's expectation of privacy in his locker was significantly diminished taking into account the totality of the circumstances including the process of locker assignments. [ 148 ] The Crown also notes the Court in M.R.M. , supra , stated that students have a significantly diminished expectation of privacy at school. [ 149 ] Crown submits that Ms. Rinke had reasonable grounds for conducting the search.

Crown notes that according to M.R.M. , supra , a search under these circumstances will be reasonable "where the teacher or principal conducting the search has reasonable grounds to believe that a school rule has been violated and the evidence of the breach will be found on the student" (see M.R.M. at para. 50 ). [ 150 ] Crown points to the following as forming the basis for the required reasonable grounds: Ms. Rinke and Ms. Duarte smelled a strong odour of marihuana when the binder was unzipped.

They were familiar with the smell of marihuana from previous encounters with students and they knew of the accused's reputation and history of being in possession of drugs, and Ms. Rinke was aware of the school policy regarding drug possession and trafficking. [ 151 ] The Crown submits that the fact that neither Ms. Rinke nor Ms.

Duarte could distinguish between burnt or fresh marihuana was irrelevant because this distinction is relevant to whether a police officer has caught someone in the act of committing a criminal offence versus having already committed a criminal offence. [ 152 ] Crown notes the Code of Conduct set out a zero tolerance policy towards drug use and was consistent with the duties of teachers and duties and powers of principals set out in the School Act, B.C.

Regulation 265/89 . [ 153 ] Crown's position is that the search itself was conducted in a reasonable manner. [ 154 ] Should the Court find a breach of s. 8, Crown submits that the applicant has not met its onus to show on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute. Applying the test in Grant , supra , the Crown submits that each factor favours the admission of the evidence. [ 155 ] Crown relies on the following authorities: • R. v. S.M.Z. , supra • R. v. W.J.J. , supra • School Act , B.C.

Regulation No. 265/89 • The Port Moody Senior Secondary School Code of Conduct. THE LAW [ 156 ] As noted above, a number of cases have been submitted to me by Crown and defence counsel, all of which I have reviewed. [ 157 ] The leading case on searches conducted by school officials seems to be M.R.M. , above. In this case, the Vice Principal at a junior high school received information from students that led him to believe that the accused there, a student at the school, was selling drugs on school property.

The Vice Principal asked the accused and his friend to come to his office where he asked each of them if they were in possession of drugs and advised that he was going to search them. An RCMP officer in plain clothes arrived at that point and identified himself to the two students, but did not say anything as the Vice Principal conducted the search. The Vice Principal seized a bag of marihuana which he passed to the Constable. The Constable then arrested the accused for possession of a narcotic.

The Constable and the accused then went to the accused's locker and searched it but nothing was found there. [ 158 ] This case establishes a modified standard applicable to searches of students conducted on school property by school officials. As the Court set out at para. 55, this modified standard applies to "searches of students on school property conducted by teachers or school officials within the scope of their responsibility and authority to maintain order, discipline and safety within the school". It does not apply to actions taken beyond the scope of this authority.

It also does not apply as the Court noted at para. 56 to school authorities who are acting as agents of the police. If school authorities are found to be acting as agents of the police, the usual standard applied to the police will apply to these authorities. Agents of the Police [ 159 ] In M.R.M. , supra , the Court began its analysis by determining whether the school official carrying out the search was acting as an agent of the police.

As the Court noted in M.R.M. at para. 56 , if school officials are found to be acting as agents of the police, the searches they conduct on students will be subject to the standard applied to the police rather than to a modified standard for school authorities. This standard as the Court noted at para. 56 requires "prior authorization in the form of a warrant which is based upon information which provides reasonable and probable grounds". [ 160 ] The Court found that Broyles , supra , set out the appropriate test to apply in determining whether an individual was acting as an agent of the police.

In Broyles the Court considered whether an informer was a state agent and set out the relevant test as follows: …Only if the relationship between the informer and the state is such that the exchange between the informer and the accused is

materially different from what it would have been had there been no such relationship should the informer be considered a state agent for the purposes of the exchange. … [W]ould the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents? (See M.R.M. , supra , citing Broyles , supra , at para. 24 ). [ 161 ] Applying this test to the case at hand, the Court found that the relevant question was "whether the search of the appellant would have taken place, in the form and manner in which it did, but for the involvement of the police?" ( M.R.M. , supra , at para. 19 ). [ 162 ] The Court applied this test at para. 29 and found that though the Vice Principal knew that criminal charges might result from a search, his primary motive in conducting the search was to enforce school discipline.

The evidence did not suggest that the Vice Principal initiated the search. Accordingly, the Court found that the Vice Principal was not acting as an agent of the police. [ 163 ] In the case at hand, I think the relevant question is: would the search of J.M.'s locker have taken place in the form and manner in which it did but for the involvement of the police?

Reasonable Expectation of Privacy [ 164 ] The Court in M.R.M. , supra , noted that in order to engage the protection under s. 8 of the Charter , the accused must first establish that he or she had a reasonable expectation of privacy with respect to the location searched (see para. 31). [ 165 ] As the Court notes in para. 33, even if the Court finds that the accused has a reasonable expectation of privacy, the Court may find that this expectation is lessened under the circumstances.

A finding that the accused had a lessened expectation of privacy will affect the Court's subsequent consideration of whether the search was reasonable (see para. 33). [ 166 ] As Mr. Justice Cory notes in M.R.M. , supra , at para. 33 a student's reasonable expectation of privacy is significantly lessened in a school setting. He says this at para. 33: [33] … Students know that their teachers and other school authorities are responsible for providing a safe environment and maintaining order and discipline in the school.

They must know that this may sometimes require searches of students and their personal effects and the seizure of prohibited items. It would not be reasonable for a student to expect to be free from such searches. A student's reasonable expectation of privacy in the school environment is therefore significantly diminished. [ 167 ] In a passage at para. 34 cited by neither Crown nor defence counsel, Mr.

Justice Cory directly addressed the topic of locker searches in the following language: [34] In some cases a court may be required to determine with greater precision whether and to what extent a student has a reasonable expectation of privacy in the location of the search. In the case of locker searches, for example, courts have engaged in more detailed factual analyses to determine the degree of control that school authorities maintain over the lockers and the effect that this may have on the reasonable expectation of privacy and the reasonableness of the search (see, e.g., Zamora v.

Pomeroy , 639 F.2d 662 (1981); People v. Overton , 301 N.Y.S.2d 479 (1969); State in Interest of T.L.O. v. Engerud , 94 N.J. 331 (1983), aff'd 469 U.S. 325 (1985)). [ 168 ] In M.R.M. , supra , as noted earlier, a locker search did occur but did not produce evidence and as such the Court did not need to assess the lawfulness of that search.

The Court did conclude, however, that the accused had a reasonable expectation of privacy with respect to his person and that this expectation was of a lesser degree because he was in a school environment. [ 169 ] Subsequent case law cited by both Crown and defence supports the proposition that a student's expectation of privacy in their locker is generally lesser than their expectation of privacy in their person. [ 170 ] In M.W.S. , supra , the accused was called out of his secondary school class and asked to empty his pockets in the Vice Principal's office. A score sheet was found therein.

The Vice Principal and counsellor subsequently searched the accused's locker and found marihuana inside a backpack stored in that locker.

The accused had signed an agreement at the start of the school year in which he acknowledged that his locker could be searched and the school authorities were able to produce a copy of this agreement. [ 171 ] His Honour Judge Seidemann of this Court had the following to say at paras. 46 to 47 about the privacy interests in a locker as opposed to on a person: [46] Another principle, that has come both from M.R.M. and from the cases that have considered it, is that there are different considerations to be applied to a search of the person as opposed to a search of the locker or desk, if you will, or things like that of a student. [47] A student attending school may have a lessened expectation of privacy in their locker.

They may not have a lessened expectation of privacy in their person, and the cases have established that in order to conduct a search of the person, a higher standard must be met. [ 172 ] Defence counsel has cited this case in his written submissions, and his argument, as I understand it, is that in order for a student to have a lessened expectation of privacy in a locker, this lessened expectation must be clearly made known to the student.

Judge Seidemann did find that the locker agreement in M.W.S. , supra , "expressed the lessened expectation of privacy that the accused had in his locker" and specifically that the accused "knew that the locker was the property of the school, that he was given its use and he was given its use on these conditions" (see para. 50). [ 173 ] However, there is nothing in this case to establish that such a document is necessary in order for a court to find that a student has a lessened expectation of privacy in that student's locker. [ 174 ] R. v.

S.M.Z. , supra , a decision of the Manitoba Court of Appeal cited in Crown's written submissions, directly addresses the

expectation of privacy issue vis-à-vis a locker and found it to be on the "lower end of the scale". In this case, the Court stated as follows: [21] A student's reasonable expectation of privacy is not extinguished in the school environment, but as Cory J. put it, it is "significantly diminished." That is particularly true in the facts of this case with respect to their lockers, provided to them by the school, usually shared with another, and with control and access by school authorities preserved by their retention of the combinations for the locks.

The expectation of privacy which a student has with respect to his locker is at the lower end of the scale. [ 175 ] Judgments of the Manitoba Court of Appeal, while not binding on me, are entitled, nonetheless, to significant deference in this Court. The Standard to be Applied to the Search [ 176 ] Where a school authority is not found to be an agent of the police, the case law suggests a modified standard should be applied to the search.

As the Court noted in M.R.M. , supra , at para. 44 , the general rule established in Hunter holds that the absence of a search warrant creates the presumption that a search is unreasonable. However, the Court found that the absence of a warrant would not create such a presumption in the situation of a school official conducting a search or seizure from a student. As Cory J., speaking for the majority, said in para. 45: [45] … Teachers and administrators must be able to respond quickly and effectively to problems that arise in their school.

When a school official conducts a search of or seizure from a student, a warrant is not required. The absence of a warrant in these circumstances will not lead to a presumption that the search was unreasonable. [ 177 ] The Court also found that the standard enunciated in Hunter requiring that a reasonable search must be based on reasonable and probable grounds (see para. 46) did not apply to searches conducted by school officials. Mr. Justice Cory reasoned in this fashion in para. 47: [47] … The role of teachers is such that they must have the power to search.

Indeed students should be aware that they must comply with school regulations and as a result that they will be subject to reasonable searches. It follows that their expectation of privacy will be lessened while they attend school or a school function.

This reduced expectation of privacy coupled with the need to protect students and provide a positive atmosphere for learning clearly indicate that a more lenient and flexible approach should be taken to searches conducted by teachers and principals than would apply to searches conducted by the police. [ 178 ] Accordingly, the Court in M.R.M. , supra , found that a different standard should be applied to searches conducted by school authorities and set out the standard in para. 50 of its reasons as follows: [50] … A search of a student will be properly instituted in those circumstances where the teacher or principal conducting the search has reasonable grounds to believe that a school rule has been violated and the evidence of the breach will be found on the student. [ 179 ] Mr.

Justice Cory summarized the approach to be taken in considering searches by school authorities in four points at para. 50 of his reasons, as follows:

(1) A warrant is not essential in order to conduct a search of a student by a school authority.

(2) The school authority must have reasonable grounds to believe that there has been a breach of school regulations or discipline and that a search of a student would reveal evidence of that breach.

(3) School authorities will be in the best position to assess information given to them and relate it to the situation existing in their school. Courts should recognize the preferred position of school authorities to determine if reasonable grounds existed for the search.

(4) The following may constitute reasonable grounds in this context: information received from one student considered to be credible, information received from more than one student, a teacher's 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 authority in the context of the circumstances existing at the particular school. [ 180 ] I would note the Court in M.R.M. , supra, provides a broad range of types of information that might constitute reasonable grounds and directs considerable deference by the courts to the school authority's assessment as to whether they have reasonable grounds for a search. [ 181 ] In M.W.S. , supra , Judge Seidemann of this Court found that the Vice Principal had met the standard in M.R.M. , supra .

His reasons provide further insight into what the Court there considered to qualify as reasonable grounds to believe that a school rule had been broken under the circumstances. He said this: [53] Ms. J. was not required, before conducting a search of the locker, to have the full reasonable and probable grounds that would be required by a police officer to get a search warrant. She was required to have a belief and she was required to have a reason for that belief. It could not be a guess; it could not be a hunch.

She had facts before her upon which she concluded that this was likely. [ 182 ] I will now deal with defence counsel's submission that because neither Ms. Rinke nor Ms.

Duarte could identify the smell emanating from J.M.'s binder as fresh (as opposed to burnt marihuana) they did not have reasonable grounds for their search. [ 183 ] Defence counsel relies on a number of cases for this proposition and in particular Janvier , supra , and the Court's finding in that case that a warrantless search by a police officer was unlawful because the officer could not identify the smell of marihuana as fresh as opposed to burnt marihuana. The Court's statements in this case must be understood in their context, namely, that of a search conducted incident to an arrest for a

summary conviction offence.

[ 184 ] Judge Wood of this Court provides a helpful analysis of Janvier , supra , in the recent judgment of R. v. Boyd , 2011 BCPC 137 .

Boyd concerned a voir dire to determine the admissibility of evidence found by a police officer during a search incident to an arrest. [ 185 ] Defence counsel in Boyd relied on the judgment in Janvier to argue that the warrantless search of the accused's vehicle was unreasonable because the arrest for possession was based on the officer's conclusion that he smelled burnt marihuana. [ 186 ] As Judge Wood explained at para. 12, the common law power of a search incident to arrest provides one exception to the general presumption that a warrantless search is unreasonable.

However, in order for the search incident to arrest to be itself reasonable, the warrantless arrest itself must be lawful. [ 187 ] As Judge Wood noted at para. 13, the relevant provisions are set out in s. 495 of the Criminal Code describing the power of a peace officer to arrest without warrant. [ 188 ] Judge Wood stated that in the case at hand he was considering possession of marihuana in an amount less than 30 grams. The crime was an offence punishable on

summary conviction. As such, this arrest could only be lawful under s. 495(1)(

b) of the Code pertaining to the power of a peace officer to effect a warrantless arrest for a

summary conviction offence. This

section provides that a peace officer may arrest without warrant "a person whom he finds committing a criminal offence" (see s. 495(1)(

b) of the Code ). [ 189 ] Judge Wood summarized the findings in Janvier , supra , and its applicability at paras. 15 to 19 of his reasons as follows: [15] Defence counsel relies on the judgment of the Saskatchewan Court of Appeal in R. v. Janvier [citation omitted]. In that case Janvier was charged both with possession of, and possession for the purpose of trafficking in, marihuana. The circumstances giving rise to those charges were that a police officer stopped his vehicle, in which he was the lone occupant, because it had a broken headlight.

As soon as the officer walked up to the open driver's window he detected the "very strong" odour of burnt marihuana from which he concluded that marihuana had been smoked in that vehicle perhaps within the last 20 minutes. The officer immediately arrested Janvier for possession of marihuana. A search of Janvier and his vehicle produced a total of 8 grams of marihuana, money and a list of possible contacts. [16] Like Const.

Cranmer in this case, the investigating police officer in that case testified that he had located actual marihuana in searches he had conducted in similar cases, following arrests based on the smell of burnt marihuana coming from a vehicle. [17] The trial judge found the smell of burnt marihuana alone raised a suspicion that marihuana had been recently consumed, but did not provide what he described as "reasonable and probable grounds for an arrest and search." [18] In her judgment, dismissing the Crown's appeal on behalf of the Court, Jackson J.A. reviewed a large number of conflicting authorities.

As is common ground in this case, she concluded that if the arrest of Janvier was lawful it could only have been effected under s. 495(1) (

b) of the Criminal Code . [19] In analysing what is meant by the phrase "finds committing" in s. 495(1)(

b) Jackson J.A. concluded that the power of arrest in that paragraph is limited to those circumstances in which the police officer finds the accused in the very act of committing the offence in question, and that the smell of burnt marihuana alone did not provide grounds for an arrest under that section. [ 190 ] Applying this construction of "finds committing", Judge Wood found that it was unreasonable to draw an inference of present possession from the smell of burnt marihuana and said this at para. 56 of his reasons: [56] … The law requires that inferences drawn from proven facts must be reasonable.

The reasonable inference to be drawn from the smell of burnt marihuana, whether one estimates the burning to have taken place in the immediate past or hours previously, is that the marihuana which was the source of that smell no longer exists.

It has been consumed by fire. [ 191 ] Judge Wood, therefore, found that the smell of burnt marihuana alone did not provide sufficient grounds for the arrest of the accused for possession and excluded the evidence seized in a search pursuant to that arrest. [ 192 ] Janvier , supra , and the cases that follow it are distinguishable in my view from the case at bar. [ 193 ] As noted earlier, the Court in M.R.M. , supra , set out the test for reasonableness of a warrantless search conducted by school officials to be as follows at para. 50: [50] … A search of a student will be properly instituted in those circumstances where the teacher or principal conducting the search has reasonable grounds to believe that a school rule has been violated and the evidence of the breach will be found on the student. [ 194 ] This is a very different standard than the standard for a warrantless search or arrest pursuant to s. 495(1)(

b) of the Code . The standard for a warrantless arrest requires that a peace officer find the accused committing the offence in question. The standard for a search by school officials does not require that the school officials find the student in the act of committing the violation of the school rule. In other words, Ms. Rinke and Ms. Duarte were entitled to rely on the evidence that a school rule had been broken in the past. [ 195 ] Defence counsel also relies on Mondor , supra , a decision of the B.C. Provincial Court, also concerning the constitutionality of a police search of a vehicle incident to arrest.

In this case, Judge Bastin found that the odour of smoked marihuana "did not necessarily mean that marihuana was present in the vehicle" (at para. 29), or that both of the occupants of the vehicle as opposed to one or the other possessed marihuana (at para. 31).

The Court's statements in Mondor and the inferences that can be drawn from the smell of smoked marihuana arose in the context of determining whether the smell of smoked marihuana meant that an officer finds a person committing a criminal offence. [ 196 ] As noted earlier, the standard for school officials does not require that they find the student in the act of committing a rule infraction in order to conduct a search.

[ 197 ] R. v. Hood , supra , submitted by the defence but not relied upon in his written submission, goes to the same point and is also not relevant in my view. [ 198 ] The final case relied on by defence counsel in regards to the smell of marihuana, R. v. Payette , 2010 BCCA 392 , concerned whether a trial judge erred by applying the reasonable suspicion standard in deciding whether the police had the authority to use a drug detector dog without prior judicial authorization and whether the reasonable suspicion standard was satisfied by six factors provided by the police officers as set out at para. 6 of the reasons. None of these factors included the s

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