High School Students Successfully Challenge Mandatory Breathalyser for Prom Attendees under the Charter
In Simon Gillies et al v Toronto District School Board, 2015 ONSC 1038, Justice Himel of the Superior Court of Ontario held that a mandatory breathalyser test for high school prom attendees violated section 8 of the Charter. This case applied the Charter in an interesting context and led to a win for the high school students. This judgement also affirms some back to basics principles, such as that the Charter applies to bodies other than the government when they “are, in reality, ‘governmental’ in nature.”
Simon Gillies and Brett Gorski (the “Applicants”) were graduating students at Northern Secondary School attending the annual school prom. Mr. Felsen, the school’s Principal, wished to institute mandatory breathalyser tests for those attending the prom because of his past experience with similar school events. In his view, this was required to fight the “culture of alcohol consumption and/or intoxication” at such events (at para 11). This decision prompted the Applicants to file this Charter challenge before the event. It was agreed the issue would be adjudicated after the prom and no breathalyser was used during the 2014 prom.
The Applicants asserted that a mandatory breathalyser test for those entering the prom is a violation of students’ search and seizure rights under section 8 of the Charter. The Respondents (the school board and the principal) argued that there is no Charter infringement and even if there is, it should be upheld under section 1.
For the 2014 prom, past security measures were relied upon and no notable incidents occurred during the event. However, it is important to note that the Respondents “filed numerous photographs posted to Facebook the morning after the prom of students drinking a liquid out of champagne glasses at a pre-prom party” (at para 19).
I) Does the Charter Apply?
Justice Himel found that the Charter applied to the Respondents. Citing Eldridge v British Columbia (Attorney General),  3 SCR 624, and Godbout v Longueuil (City),  3 SCR 844, she held that the “school authorities are carrying out a ‘quintessentially government function’ to which the Charter should apply” (para 39).
II) Section 8 of the Charter
A) Did Students Consent?
If students consented to the breathalyser and the seizure of their breath sample, then section 8 is not engaged (see R v Wills (1992), 7 OR (3d) 337 [Willis]). In Willis, Justice Doherty set out a six-part framework to determine whether one has consented under section 8 of the Charter.
Looking at the first step, while Justice Himel found that there was no express consent, in her view there was implied consent, as students knew there would be blanket breathalyser testing upon purchasing their tickets. In addressing the second factor, she ruled that minors are able to give consent to such testing. Further, while many students see prom as a rite of passage, Justice Himel found that the consent given in this case was not due to coercion.
However, after looking at the last three factors of the test, Justice Himel found that there was no waiver. In her view, “[i]t has not been established that the students were aware of the nature of the breathalyser screening to which they would be consenting,” given that it was ambiguous how the test would be administered (para 67). Further, students did not have a meaningful choice between missing a significant event and giving a breath sample. Finally, looking at the last Willis criteria, Justice Himel found that students do not truly understand the consequences of consenting and waiving their Charter right. As such, the Respondents failed to show that waiver applied.
B) Reasonable Expectation of Privacy
If students have no reasonable expectation of privacy, section 8 is not engaged. Justice Himel cited R v Spencer, 2014 SCC 43, for the four factors to be considered:
- The subject matter of the alleged search;
- The claimant’s interest in the subject matter;
- The claimant’s subjective expectation of privacy in the subject matter; and
- Whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.
Referencing R v Plant,  3 SCR 281, and R v MRM,  3 SCR 393, she held that students have an objective and subjective reasonable expectation of privacy over their breath samples. Further, while there is a diminished expectation of privacy in this school context, this “does not render the Charter inapplicable” (para 97). All in all, section 8 was engaged because the students did not consent and have a privacy interest in their breath samples.
In determining whether the breathalyser was a reasonable search and seizure, she found that the respondents did not tender enough evidence to justify the practice. As she writes:
I am not convinced that the principal formed anything more than a suspicion that some students would be drinking before the prom, and that suspicion does not meet the threshold of reasonable grounds to believe. At best, the principal had an educated hunch or intuition that drinking is a widespread problem at the school. This is not enough to meet the necessary threshold required for a reasonable search; namely that there are reasonable grounds to believe that a school rule has been or is being violated, and that evidence of the violation will be found in the location or on the person of the student searched. (para 122)
Finally, although Justice Himel found that the use of a breathalyser is not necessary, given the novel issue before her, she went on to discuss the reasonableness of breathalyser testing at an off-site school event. Citing the three-part test in MRM, while the Education Act, RSO 1990 c E.2, authorized the school to conduct searches, the testing in this context was not done in a sensitive manner and when considering the totality of the circumstances, she held that the use of a breathalyser “is highly intrusive… [and] disproportionate given the nature of the suspected breaches” (para 145). She held that section 8 of the Charter is infringed by the practice of blanket breathalyser testing for prom attendees.
III) Section 1
Justice Himel first noted that the breathalyser testing was prescribed by law and was implemented for the pressing and substantial objective of the health and safety of students. However, she did not find a rational connection, that the infringement is a minimal impairment, or that the measure was a “proportionate reaction” by the respondents.
All in all, Justice Himel finds that the proposed blanket breathalyser testing before a school event is a section 8 Charter violation that cannot be saved by section 1. While the case provides a win for these former high school students over their administration, this case also highlights that the protection accorded to individuals in providing bodily samples even in the non-criminal, non-police context. In an age where technology may be able to assist schools try to curb alleged bad behaviour, I take some comfort in knowing that where the Charter applies, there are clear limits to the intrusions into one’s bodily integrity that can occur.