The Charter of Rights and Freedoms applies to Ontario’s public school boards because these boards are agents of the government, the Supreme Court of Canada ruled Friday.
“Public education is inherently a governmental function. It has a unique constitutional quality,” Justice Malcolm Rowe wrote in the decision. “Ontario public school boards are manifestations of government. They are not private entities carrying out a governmental activity.”
Lawyers say the decision provides needed clarity about whether school boards are, in fact, agents of the government. While this had often been assumed, the country’s highest court had not said so explicitly.
The court did so last week. All seven judges who heard the case agreed the Charter applies to Ontario’s public school boards.
The judges’ agreement is significant, says Howard Goldblatt, a lawyer who represented the Elementary Teachers’ Federation of Ontario, one of the parties in the case.
The case dates back almost 10 years. In 2015, two Grade 2 teachers in the York Region District School Board were reprimanded after their principal read a private log the two were keeping about their concerns with another teacher. The principal accessed the log when he went to turn off a laptop in one of the teacher’s classrooms.
The court considered whether teachers have a Charter-protected right to privacy. Section 8 of the Charter protects Canadians from “unreasonable search and seizure” by government bodies.
Section 8 typically applies in criminal cases. But the court ruled that it can be applied in an employment situation, although in a different way. The court held that the two teachers’ privacy rights had been violated in this case.
“Courts should be cautious in adapting the [Section] 8 framework from the criminal law context to the employment context,” the decision says.
There has been uncertainty about what governs the relationship between teachers, education workers and school boards when issues arise that are not mentioned in their collective bargaining agreement, says Goldblatt, who represented the teachers’ union and argued the principal had violated the teachers’ privacy rights.
“We now know that, no matter what the school boards decide in terms of the rules, the policies or actions, all of that must be seen through the prism of the protection of the Charter,” he said. “Teachers’ lesson plans, teachers’ notes that they keep with respect to various discussions they may have — all of that is subject to the protection of the Charter.”
Frank Cesario, a lawyer who represented the York Region District School Board, declined to be interviewed. He said in an email that he does not comment publicly on cases in which he was involved.
Implications for students
The court stopped short of saying that all public school boards in Canada are government bodies.
“The analysis … relates specifically to Ontario public school boards,” Justice Rowe wrote. “I leave for another day the question of the applicability of the Charter to public schools in other provinces, or to the operation of private schools.”
Even though this case was only about Ontario’s public school boards, it will likely affect school boards across the country, Goldblatt says. If similar cases from other jurisdictions come before the court in the future, it is in his opinion “more likely than not that … the court will find that school boards are governed by the Charter.”
Gerald Chan, who represented the Canadian Civil Liberties Association, one of the 16 interveners in the case, called the decision encouraging.
“We’re encouraged that the court reinforced that teachers do not lose their privacy rights or check their privacy rights at the workplace door,” he said.
“Section 8 of the Charter is meant to prevent privacy breaches before they happen, not to simply remedy them after the fact,” he said.
The decision also reinforces the importance of content neutrality, says Chan. Content neutrality means that a person’s right to privacy does not change depending on the content of the information they assumed was private.
“The question is whether there is a reasonable expectation of privacy in the communications at large — in this case, the teachers’ logs — and not whether [the teachers] have a reasonable expectation of privacy depending on what specifically [they] wrote in those communications.”
Even though the case was about teachers, Sujit Choudhry, a constitutional scholar and lawyer in Toronto, says it may have implications for students as well.
“The question now is whether kids have constitutional rights at school and against school boards,” he said. School boards make policies about a wide variety of matters, including dress codes, technology use, school clubs and extracurricular activities and what books are allowed in school libraries.
The specifics of each situation are important, he said. But because of this decision, “issues regarding curriculum, speech, school policies on extracurricular activities, are all now, in principle, subject to the Charter,” he said.
This decision could have “lots of implications for all sorts of policies and disputes,” he said.
