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Charter - Section 8 - Search and Seizure (8). York Region District School Board v. Elementary Teachers’ Federation of Ontario
In York Region District School Board v. Elementary Teachers’ Federation of Ontario (SCC, 2024) the Supreme Court of Canada applies Charter administrative procedural doctrine, but here to the 'privacy' provisions of s.8 ['Search or seizure'] - an area that overwhelmingly otherwise attract criminal procedures:D. Public School Teachers Have a Section 8 Charter Right Against Unreasonable Search and Seizure in the Workplace
[97] As noted, Ontario public school boards are government for the purpose of s. 32 of the Charter; thus, school board employees, including teachers, enjoy rights under s. 8 of the Charter against unreasonable search and seizure in the workplace. This Court has recognized s. 8 Charter protection beyond the criminal and quasi-criminal context (see R. v. McKinlay Transport Ltd., 1990 CanLII 137 (SCC), [1990] 1 S.C.R. 627 (s. 8 applies to production of documents under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.)); Comité paritaire de l’industrie de la chemise v. Potash, 1994 CanLII 92 (SCC), [1994] 2 S.C.R. 406 (s. 8 applies to labour inspections under provincial legislation)).
[98] This Court’s criminal decisions, such as in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, and particularly in the school context, such as in Cole, can assist in determining the existence and scope of a reasonable expectation of privacy in the employment context. However, courts should be cautious in adapting the s. 8 framework from the criminal law context to the employment context. The criminal law context cannot readily be analogized to the context surrounding a principal performing their tasks in accordance with their statutorily mandated role of maintaining order in a school. Criminal law thresholds — and considerations related to exigency and law enforcement objectives — should not be the starting point for analysis in the employment context. Rather, in that context, the employer’s operational realities, policies and procedures can be relevant in determining the reasonableness of an employee’s expectation of privacy (Cole, at para. 54).
[99] Criminal law jurisprudence should not be indiscriminately imported into non-criminal matters. The analysis under s. 8, being contextual, needs to be adapted to occupational realities. For instance, this Court has eschewed the requirement of prior authorization by a warrant to conduct searches of students by a school authority. In M. (M.R.), Cory J., for the majority, reasoned that such a criminal law requirement was not feasible in this context because school administrators “must be able to respond quickly and effectively to problems that arise in their school” (para. 45).
[100] In adapting the analysis to the workplace, for example, I agree with the Attorney General of Ontario that workplaces vary in terms of the level of regulation and that the consequences for discipline in the employment context are less severe as compared to penal liability in the criminal context (see I.F., at paras. 19-23).
(1) Determining the Reasonable Expectation of Privacy
[101] Whether in criminal or other contexts, s. 8 analysis proceeds in two steps: courts must determine, first, whether there is a reasonable expectation of privacy, and, second, whether the search and seizure is reasonable (R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 18, citing R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 293).
[102] Whether or not state action has interfered with a reasonable expectation of privacy is to be determined based on the “totality of the circumstances”. This is dispositive of both the existence and the extent of the reasonable expectation of privacy. Four lines of inquiry serve as a guide:(1) an examination of the subject matter of the search;
(2) a determination as to whether the claimant had a direct interest in the subject matter;
(3) an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and
(4) an assessment as to whether this subjective expectation of privacy was objectively reasonable
(Tessling, at paras. 31-32; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at paras. 18 and 78; Cole, at para. 40; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 27). [103] Inevitably, the reasonable expectation of privacy takes its colour from context. Thus, the employer’s operational realities, policies and procedures may affect the reasonableness of an employee’s expectation of privacy (Cole, at para. 54). For example, in Cole, this Court recognized that the storing of personal information on a computer owned by the employer and the existence of a policy stating that data so stored belongs to the employer would tend to diminish the reasonable expectation of privacy (para. 52). On the other hand, permitting employees to use work laptops for personal purposes would weigh in favour of the existence of a reasonable expectation of privacy (para. 54).
(2) Determining the Reasonableness of a Search
[104] In the criminal context, a search or seizure is reasonable if (1) it is authorized by law; (2) the law itself is reasonable; and (3) the manner in which the search or seizure was carried out is reasonable (Collins, at p. 278). Similar to the first step of a s. 8 analysis, the Collins framework also calls for a contextual assessment. “[Searches that] may be reasonable in the regulatory or civil context may not be reasonable in a criminal or quasi-criminal context” (Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425, at pp. 495-96 (per Wilson J., dissenting)). In M. (M.R.), this Court implicitly adapted the Collins test to determine “whether a search conducted by a teacher or principal in the school environment was reasonable” (para. 54).
[105] I hasten to add that what may be considered proportionate in a criminal context, where penal liability is at stake, may look different in a labour relations context where the consequence, albeit serious, does not threaten liberty. In evaluating the reasonableness of the impugned search at the second step of a s. 8 analysis, arbitrators should have regard to employment relations under the terms of the collective agreements. The existing arbitral jurisprudence on the “balancing of interests”, including the consideration of management rights under the terms of the collective agreement, may properly inform the balanced analysis. There exists a considerable body of arbitral decisions regarding privacy in the context of collective agreements that arbitrators may properly have regard to in conducting a s. 8 analysis (see, e.g., Doman Forest Products Ltd. and I.W.A., Loc. 1-357, Re (1990), 1990 CanLII 12718 (BC LA), 13 L.A.C. (4th) 275 (B.C.); Toronto Transit Commission and A.T.U., Loc. 113 (Belsito) (Re) (1999), 1999 CanLII 35815 (ON LA), 95 L.A.C. (4th) 402 (Ont.)).
[106] The effect of this decision is not to displace existing arbitral jurisprudence, but rather to ensure that it respects Charter rights. Arbitral jurisprudence now encompasses a considerable body of decisions that reflect a great breadth of experience; this will continue to play an important role in resolving grievances arising under collective agreements. However, such decisions should also be taken in accordance with the direction in Conway to analyze Charter rights when they apply. This must inform their decision as to the grievance under the collective agreement.
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