Civil Liberties Don’t Start at 18

United Conservative Party Leader Jason Kenny is calling for legislation that will enable teachers to communicate to parents that their child has joined a Gay Straight Alliance (“GSA”). The UCP’s position persistently fails to recognize that civil liberties do not start at the age of 18. Children in Alberta have constitutional rights — before their 18th birthday — and they are entitled to have those rights respected.

Section 16.1(6) of the currently enacted School Act precludes teachers or principals from notifying parents of a student’s membership in a GSA. Nothing in the School Act prohibits parents from having a conversation with their child. And nothing prevents a student from volunteering to their parents (or anyone else) that they have joined a GSA. The critical context for this issue is this: if parents are unaware their child has joined a GSA, it is because the child has chosen not to share that with their parents.

The proponents of parental rights argue for a legislative scheme that would require teachers to observe, gather, and record information about whether a student has chosen to join a GSA, and report that information to the student’s parents if the teacher believed it was in the student’s best interest. This proposed legislative scheme would violate students’ privacy rights.

In a previous post on this blog, we suggested that notifying parents of student membership in a GSA would violate students’ freedoms of expression and association, as well as students rights to liberty and security of the person and equality before the law. This post focuses on students’ privacy interests protected by section 8 of the Canadian Charter of Rights and Freedoms.

Students’ Privacy Interests in Schools

Section 8 provides everyone, not just people over the age of 18, with the right to be “secure against unreasonable search or seizure”. The purpose of section 8 is to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination. Section 8 protects against state intrusion on an individual’s “reasonable expectation of privacy”. A preliminary question then is whether LGBTQ students who seek to form or join a GSA at school have a reasonable expectation of privacy in their membership and activities in the GSA.

The focus of a reasonable expectation of privacy analysis is on the potential personal or biographical information which is at risk of exposure by the state (see R v Marakah at paras 31-32). The issue cannot simply be dismissed as information pertaining to membership in a school club. Context is critical. Reporting to a parent that a student has joined a GSA, in the circumstance where the student has not volunteered that information to their parent, has the real potential to “out” that student as LGBTQ against their wishes. This clearly engages students’ core personal and biographical interests.

A recent Supreme Court of Canada decision held that students retain a reasonable expectation of privacy while in the semi-public setting of a school, although the analysis remains contextual. In that case, R v Jarvis, a teacher was found to have breached students’ reasonable expectations of privacy by recording female students for his own sexual purposes. The Supreme Court made a number of important statements about privacy in schools.

The Court noted that privacy is not an all-or-nothing concept, in that students do not surrender an expectation of privacy simply because they are situated in the semi-public setting of a school (especially since the School Act compels attendance until age 16) (R v Jarvis at para 61).

The Court further reiterated that individuals have a valid claim to determine for themselves when, how, and to what extent information about them is communicated to others (R v Jarvis at para 66). The nature and quality of biographical information is an important consideration in the reasonable expectation analysis. The nature of the biographical information at stake with GSAs is the students’ sexual orientation, which is a profoundly personal interest.

In addition, a reasonable expectation of privacy is not negated by a “risk analysis” (Jarvis at para 68). That is, a student joining a GSA does not relinquish an expectation of privacy in the dissemination of their potential sexual orientation simply because they have joined a semi-public group of peers and allies at school and thereby assumed the risk that the information could become public anyway. It does not follow from the fact of joining a GSA that a student thereby waives expectations of privacy in relation to their sexual orientation.

Lastly, and most importantly, the Supreme Court stated that the fact that students are minors further supports a finding of a reasonable expectation of privacy (R v Jarvis at paras 86-87). The Court acknowledged that young persons are not in a position to protect their own privacy interests against intrusion because they have limited control over their freedom of movement. Consider the plight of an LGBTQ student who is required to attend school by the School Act and when they are not at school they are otherwise under the authority and direction of their parents. Where is that student supposed to turn for confidential support?

Conclusion

LGBTQ students have a reasonable expectation of privacy in their membership in a GSA because that information is intimately linked to their sexual orientation and sexual identity. In R v Jarvis, the Supreme Court commented that “[r]easonable adults are particularly solicitous of the privacy interests of children and young persons” (R v Jarvis at para 87). Apparently, the UCP’s position does not reflect the Supreme Court’s view of reasonable adults.

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