T-1934-87
Thomas Jackson (Plaintiff)
v.
Disciplinary Tribunal, Joyceville Penitentiary,
namely Donald Schlichter, Independant Chairper
son and Attorney General of Canada (Defendants)
INDEXED AS: JACKSON V. JOYCEVILLE PENITENTIARY (T.D.)
Trial Division, MacKay J.—Ottawa, March 13,
14, 15, 17, 1989 and February 16, 1990.
Penitentiaries — Mandatory urine sampling for intoxicant
detection under Penitentiary Service Regulations, s. 41.1
Purpose to reduce prison violence — Violating Charter, s. 7
right to liberty and security and s. 8 protection against unrea
sonable search or seizure as s. 41.1, without criteria for
application, permitting custodial staff to require inmate sus
pected of having ingested intoxicant to provide urine sample.
Constitutional law — Charter of Rights — Life, liberty and
security — Penitentiaries — Mandatory urine sampling for
intoxicant detection under Penitentiary Service Regulations, s.
41.1 — Coupled with disciplinary proceedings in case of
refusal, s. 41.1 violating Charter, s. 7 by depriving inmate of
right to liberty and security of person in manner not in
accordance with principles of natural justice.
Constitutional law — Charter of Rights — Criminal process
— Search or seizure — Penitentiaries — Mandatory urine
sampling procedure for intoxicant detection under Penitentiary
Service Regulations, s. 41.1 — In violation of Charter, s. 8
protection against unreasonable search or seizure as regulation
not providing criteria for application.
Constitutional law — Charter of Rights — Limitation
clause — Penitentiaries — Mandatory urine sampling for
intoxicant detection under Penitentiary Service Regulations, s.
41.1 — Purpose of program to reduce prison violence
Limitations, in s. 41.1, on Charter, ss. 7 and 8 rights, in
absence of criteria for application, not reasonable limitation
prescribed by law within Charter, s. I.
Constitutional law — Charter of Rights — Equality rights
— Penitentiaries — Mandatory urine sampling for intoxicant
detection under Penitentiary Service Regulations, s. 41.1 —
No discrimination contrary to Charter, s. 15 as different
treatment due to past crimes, not personal characteristics.
The Penitentiary Service Regulations were amended in 1985
to authorize mandatory urine sampling for the detection and
deterrence of drug and intoxicant use in federal penitentiaries
(section 41.1) and to provide for consequences of positive tests
(paragraph 39(i.1)). The program was to include random test
ing of 10 percent of all inmates every two months. Initially, the
urinalysis surveillance program was to be introduced by stand
ing orders at two institutions: Joyceville, Ontario and Cowans-
ville, Quebec. But in August, 1986, the Quebec Superior Court
declared that the regulations violated Charter section 7 and
were not saved by section 1. That decision is under appeal.
In April, 1987, the plaintiff, an inmate at the Joyceville
Penitentiary, was suspected of being under the influence of an
intoxicant. He was ordered, under section 41.1 of the Regula
tions, to provide a urine sample. He refused on the ground that
this was a violation of his constitutional rights. He was charged
with and convicted of disobeying a lawful order, contrary to
paragraph 39(a) of the Regulations.
This was an action for a declaration that section 41.1 of the
Penitentiary Service Regulations contravenes sections 7, 8 and
15 of the Charter.
Held, the action should be allowed.
Charter Section 8
The requirement to give a sample was a search within the
meaning of Charter section 8. The inmate could not be said to
have been free to refuse where the punishment for refusing was
the same as for having consumed intoxicants. The search here
authorized was unreasonable within the meaning of section 8.
The facts pleaded and established restricted the issue to those
circumstances clearly described within a narrow construction of
section 41.1 of the Regulations as it related to the situation
where a staff member believed or suspected that the plaintiff
had consumed an intoxicant "other than brew". The Commis
sioner's directives do not have the force of law and could not
qualify the words of the regulation in question nor prescribe a
limit within the meaning of section 1 of the Charter. Neverthe
less, in the world of government operations today a variety of
initiatives are taken as outlined by a variety of documents and
instruments purporting to be under general statutes and regula
tions, as the Government of Canada's Regulatory Reform
Program itself implicitly acknowledges. There is therefore
much to be said for a broad judicial conception of what
constitutes law or legal action if the Charter of Rights is to be
given full scope in its application to governmental action.
However, in this case, section 41.1 of the Regulations was to be
read without modification or qualification derived from the
directives and standing orders that dealt with its application.
And as enacted, without any express criteria, other than consid
ering it necessary, section 41.1 did not meet the qualification
that the law providing for the search be reasonable in order to
meet the standards of section 8 of the Charter.
Charter Section 7
Section 41.1, coupled with disciplinary action for failure to
provide a specimen when ordered to do so, constituted a
deprivation of fundamental rights of inmates to liberty and
security of the person. That deprivation, in the absence of
criteria for requiring a specimen, was not in accordance with
the principles of natural justice.
Charter Section 1
The evidence established that the presence of intoxicants in
the prison setting created serious problems including a greater
risk and level of violence that affected institutional security for
both convicts and staff. But while the ultimate objective of
controlling drugs to improve safety and security within institu
tions presented societal concerns that were pressing and sub
stantial in a free and democratic society, and while the meas
ures planned to deter and detect the unauthorized consumption
of drugs and intoxicants were not unusual in other free and
democratic societies, the means selected, given the lack of
standards or criteria limiting the authority to search, were
unreasonable. Section 41.1 was therefore not a reasonable
limitation within section 1 of the Charter.
Charter Section 15
The allegation was that the plaintiff was within the only class
of persons in Canada, namely prison inmates, required by law
to submit urine samples or face penal consequences for failing
to do so. Even if this were so, this differentiation was not
discriminatory within the meaning of section 15. It was not
related to any of the enumerated and prohibited grounds, or
analogous grounds, which concern personal characteristics. The
difference in treatment of convicts as a group arose not from
personal characteristics but from past conduct in the nature of
criminal activities. Differences of this sort are not prohibited by
the Charter.
The plaintiff was also entitled to a declaration that his
conviction by the disciplinary tribunal was unlawful and of no
force and effect.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 1, 7, 8, 15, 24(1).
Code of Civil Procedure, R.S.Q., c. C-25, art. 497.
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No.
44], s. 52(1).
Federal Court Rules, C.R.C., c. 663, R. 420.
Penitentiary Act, R.S.C., 1985, c. P-5, ss. 35(4), 37.
Penitentiary Service Regulations, C.R.C., c. 1251, ss. 2
(as am. by SOR/85-412, s. 1), 39(a),(i),(i.1) (as enact
ed idem, s. 2),U), 41(2)(c) (as am. by SOR/80-462,
s. 1), 41.1 (as enacted by SOR/85-412, s. 3).
CASES JUDICIALLY CONSIDERED
APPLIED:
Dion c. Procureur general du Canada, [1986] R.J.Q.
2196; 30 C.C.C. (3d) 108; [1986] D.L.Q. 353 (S.C.); R.
v. Collins, [1987] 1 S.C.R. 265; (1987), 38 D.L.R. (4th)
508; [1987] 3 W.W.R. 699; 13 B.C.L.R. (2d) 1; 33
C.C.C. (3d) 1; 56 C.A. (3d) 193; 28 C.R.R. 122; 74 N.R.
276; Weatherall v. Canada (Attorney General), [1989] 1
F.C. 18; (1988), 65 C.R. (3d) 27; 19 F.T.R. 160; 86 N.R.
168 (C.A.); revg in part [1988] 1 F.C. 369; (1987), 59
C.R. (3d) 247; 11 F.T.R. 279 (T.D.); Martineau et al. v.
Matsqui Institution Inmate Disciplinary Board, [1978] 1
S.C.R. 118; (1977), 74 D.L.R. (3d) 1; 33 C.C.C. (2d)
366; 14 N.R. 285; Hunter et al. v. Southam Inc., [1984]
2 S.C.R. 145; (1984), 55 A.R. 291; 11 D.L.R. (4th) 641;
[1984] 6 W.W.R. 577; 33 Alta. L.R. (2d) 193; 27 B.L.R.
297; 14 C.C.C. (3d) 97; 2 C.P.R. (3d) 1; 41 C.R. (3d) 97;
9 C.R.R. 355; 84 DTC 6467; 55 N.R. 241; Singh et al. v.
Minister of Employment and Immigration, [1985] 1
S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R.
137; 14 C.R.R. 13; 58 N.R. 1; Operation Dismantle Inc.
et al. v. The Queen et al., [1985] 1 S.C.R. 441;
(1985), 18 D.L.R. (4th) 481; 12 Admin. L.R. 16; 13
C.R.R. 287; 59 N.R. 1; Re B.C. Motor Vehicle Act,
[1985] 2 S.C.R. 486; (1985), 24 D.L.R. (4th) 536;
[1986] 1 W.W.R. 481; 69 B.C.L.R. 145; 23 C.C.C. (3d)
289; 48 C.R. (3d) 289; 18 C.R.R. 30; 36 M.V.R. 240; 63
N.R. 266; R. v. Morgentaler, [1988] 1 S.C.R. 30; (1988),
63 O.R. (2d) 281; 44 D.L.R. (4th) 385; 37 C.C.C. (3d)
449; 62 C.R. (3d) 1; 31 C.R.R. 1; 82 N.R. 1; 26 O.A.C.
1; Re Ontario Film & Video Appreciation Society and
Ontario Board of Censors (1984), 45 O.R. (2d) 80; 5
D.L.R. (4th) 766; 38 C.R. (3d) 271; 2 O.A.C. 388
(C.A.); Luscher v. Deputy Minister, Revenue Canada,
Customs and Excise, [1985] 1 F.C. 85; (1985), 17
D.L.R. (4th) 503; 9 C.E.R. 229; 45 C.A. (3d) 81; 15
C.R.R. 167; [1985] 1 C.T.C. 246; 57 N.R. 386 (C.A.);
Andrews v. Law Society of British Columbia, [1989] 1
S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R.
289; 34 B.C.L.R. (2d) 273; 36 C.R.R. 193; 91 N.R. 255.
DISTINGUISHED:
R. v. Katsigiorgis (1987), 62 O.R. (2d) 441; 39 C.C.0
(3d) 256; 4 M.V.R. (2d) 102; 23 O.A.C. 27 (C.A.); R. v.
L.A.R. (1985), 17 D.L.R. (4th) 268; [1985] 3 W.W.R.
289; 32 Man. R. (2d) 291; 18 C.C.C. (3d) 104; 45 C.R.
(3d) 209; 14 C.R.R. 328; 32 M.V.R. 61 (C.A.); R. v.
Beare, [1988] 2 S.C.R. 387; (1988), 55 D.L.R. (4th) 481;
[1989] 1 W.W.R. 97; 71 Sask. R. 1; 45 C.C.C. (3d) 57;
66 C.R. (3d) 97; 36 C.R.R. 90; 88 N.R. 205.
CONSIDERED:
R. v. Noble (1984), 48 O.R. (2d) 643; 14 D.L.R. (4th)
216; 16 C.C.C. (3d) 146; 42 C.R. (3d) 209; 12 C.R.R.
138; 6 O.A.C. 11 (C.A.).
REFERRED TO:
Mills v. The Queen, [1986] 1 S.C.R. 863; (1986), 29
D.L.R. (4th) 161; 26 C.C.C. (3d) 481; 52 C.R. (3d) 1; 67
N.R. 241; Law v. Solicitor General of Canada, [1985] 1
F.C. 62; (1984), 11 D.L.R. (4th) 608; 57 N.R. 45 (C.A.);
Zwarich v. Canada (Attorney General), [1987] 3 F.C.
253; (1987), 26 Admin. L.R. 295; 87 C.L.L.C. 14,053; 31
C.R.R. 244; 82 N.R. 341 (C.A.); Tetreault-Gadoury v.
Canada (Canada Employment and Immigration Com
mission), [1989] 2 F.C. 245; (1988), 53 D.L.R. (4th)
384; 33 Admin. L.R. 244; 23 C.C.E.L. 103; 88 CLLC
14,050; 88 N.R. 6 (C.A.); leave to appeal granted [1989]
2 S.C.R. 1110; Canada (Attorney General) v. Vincer,
[1988] 1 F.C. 714; (1987), 46 D.L.R. (4th) 165; 82 N.R.
352 (C.A.); Alli v. Canada (Attorney General) (1988), 88
N.R. 1 (F.C.A.); Canada (Procureur general) v. Sirois
(1988), 90 N.R. 39 (F.C.A.); R. v. Racette (1988), 48
D.L.R. (4th) 412; [1988] 2 W.W.R. 318; 61 Sask. R.
248; 39 C.C.C. (3d) 289; 6 M.V.R. (2d) 55 (Sask. C.A.);
R. v. Dyment (1986), 57 Nfld. & P.E.I.R. 210; 26 D.L.R.
(4th) 399; 170 A.P.R. 210; 25 C.C.C. (3d) 120; 49 C.R.
(3d) 338; 38 M.V.R. 222 (P.E.I.C.A.); R. v. Enns (1987),
85 A.R. 7; 3 W.C.B. (2d) 186 (Prov. Ct.); R. v. Holman
(1982), 28 C.R. (3d) 378; 16 M.V.R. 225 (B.C. Prov.
Ct.); Jensen v. Lick, 589 F. Supp. 35 (Dist. Ct. 1984);
Spence v. Farrier, 807 F.2d 753 (8th Cir. 1986); Peranzo
v. Coughlin, 675 F. Supp. 102 (S.D.N.Y. 1987); Nation
al Treasury Employees Union v. Von Raab, 816 F.2d 170
(5th Cir. 1987) upheld on appeal 103 L.Ed. 2d 685
(1989); McDonell v. Hunter, 809 F.2d 1302 (8th Cir.
1987); R. v. Simmons, [1988] 2 S.C.R. 495; (1988), 67
O.R. (2d) 63; 55 D.L.R. (4th) 673; 45 C.C.C. (3d) 296;
66 C.R. (3d) 297; 89 N.R. 1; 30 O.A.C. 241; Lanza v.
New York, 370 U.S. 139 (Ct. App. N.Y. 1962); Bell v.
Wolfish, 441 U.S. 520 (2nd Cir. 1979); Hudson v.
Palmer, 468 U.S. 517 (4th Cir. 1984); R. v. Oakes,
[1986] 1 S.C.R. 103; (1986), 26 D.L.R. (4th) 200; 24
C.C.C. (3d) 321; 50 C.R. (3d) 1; 19 C.R.R. 308; 65 N.R.
87; 14 O.A.C. 335; Skinner v. Railway Labor Executives'
Assn., 103 L.Ed 2d 639 (1989); Mack v. U.S., F.B.I., 653
F.Supp. 70 (S.D.N.Y. 1986); appeal dismissed 814 F.2d
120 (2nd Cir. 1987); Shoemaker v. Handel, 795 F.2d
1136 (3rd Cir. 1986).
COUNSEL:
Fergus J. O'Connor and Donald A. Bailey for
plaintiff.
J. Grant Sinclair, Q.C. and Brian J. Saunders
for defendants.
SOLICITORS:
O'Connor, Ecclestone and Kaiser, Kingston,
Ontario, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
MACKAY J.:
Introduction: The Issues
The plaintiff, an inmate of Joyceville Penitentia
ry, seeks relief in the form of declarations that
would protect his right, as he claims it under the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C.,
1985, Appendix II, No. 44]], to decline to provide
a urine sample when ordered to do so by custodial
staff in the institution. His refusal to provide a
sample when ordered to do so became the subject
of disciplinary proceedings before the defendant
tribunal.
When charged with failure to obey a lawful
order under paragraph 39(a) of the Penitentiary
Service Regulations, C.R.C., c. 1251 as amended,
the plaintiff submitted written defence that the
order in question was not lawful because section
41.1 [as enacted by SOR/85-412, s. 3] of the
Regulations, under which the order was made,
authorized a mandatory urine sampling procedure
that was unconstitutional and inconsistent with the
Charter of Rights and Freedoms and therefore
unconstitutional. At the time of the disciplinary
proceedings that section of the Regulations had
already been declared by the Quebec Superior
Court to be contrary to section 7 of the Charter,
and not to constitute a reasonable limitation jus
tifiable in a free and democratic society within the
meaning of section 1 of the Charter: see Dion c.
Procureur general du Canada, [1986] R.J.Q. 2196
(S.C.), per Galipeau J. In Jackson's case the tri
bunal ruled that it did not have jurisdiction to deal
with the constitutional validity of the Penitentiary
Service Regulations in issue, and that failure to
provide a sample when ordered to do so constituted
a refusal to obey a lawful order. Sentence was
withheld pending disposition of proceedings which
by then had been initiated in this Court.
In this Court the plaintiff initially sought an
order of prohibition against the tribunal continu
ing to deal with the matter on the grounds that by
declining to consider whether the order in question
was lawful in light of the Charter the tribunal had
failed to properly exercise its jurisdiction, and that
section 41.1 of the Penitentiary Service Regula
tions authorizing mandatory urine samples violates
one or more of sections 7, 8 and 15 of the Charter.
On motion of the Attorney General of Canada,
approved by order of my colleague Mr. Justice
Dube, the issues arising from the plaintiff's
application which involve the Canadian Charter of
Rights and Freedoms were directed to be resolved
by an action between the parties. The plaintiff's
original application for an order of prohibition was
simultaneously adjourned. A statement of claim
was filed commencing this action, and subsequent
ly it was amended to include the Attorney General
of Canada as a party defendant.
Preparations were made for trial including
agreement between counsel that this action should
be concerned only with issues involving the Chart
er as set out in the statement of claim. Other relief
therein claimed in relation to other aspects of the
Disciplinary Tribunal's proceedings would not be
pursued at this time, without prejudice to possible
subsequent pursuit of these claims by the plaintiff.
After commencement of the trial counsel for the
plaintiff discovered that the statement of claim,
amended and relied upon throughout pre-trial dis
covery and discussions, omitted reference to sec
tion 15 of the Charter as being contravened by the
Penitentiary Service Regulations here in issue. He
sought leave at that late juncture to amend the
statement of claim. That motion was opposed by
counsel for the defendants in light of the prior
agreement of counsel, the lateness of the timing of
the motion when there had been adequate opportu
nity before trial to seek amendment, and because
he was not at that stage prepared to deal in
argument with section 15 of the Charter. After
hearing counsel, with their cooperation assured
and time available to prepare argument on the
added ground, I allowed the plaintiff's motion. The
statement of claim was amended pursuant to Rule
420 of the Federal Court Rules [C.R.C., c. 663],
for reasons then set out separately and filed in the
Court file.
In the result the issues to be resolved in this trial
include those underlying the relief claimed by the
plaintiff in paragraphs 7(a) and 7(b) of the state
ment of claim as finally amended. That relief
included
(a) a Declaration that the Defendants (tribunal) unlawfully
declined jurisdiction in failing to rule on whether or not section
41.1 of the Penitentiary Service Regulations contravened the
Canadian Charter of Rights and Freedoms; and
(b) a Declaration that section 41.1 of the Penitentiary Service
Regulations does contravene the Canadian Charter of Rights
and Freedoms, and in particular section 7 and section 8 and
section 15 thereof.
Facts of the Case
The facts of this case are essentially quite
simple. The plaintiff, Thomas Jackson, was an
inmate at Joyceville, a medium security institu
tion, from December 1986. He had previously been
there in the years from 1978 to 1982 and he had
earlier also been an inmate at Collins Bay and at
Millhaven institutions. In his experience before his
current sentence there had been no requirement
for mandatory urine samples and testing.
On April 29, 1987 at about noon Mr. Jack Izatt,
a living unit officer employed with the Correction
al Service of Canada at Joyceville, with respon
sibilities in relation to the living unit range which
contained Jackson's cell, completed a regular
count of inmates then present in the living range.
He noticed the plaintiff Jackson in his cell, lying
on his bed presumably asleep. Some ten minutes
later, after verification of the count, Izatt again
walked down the range to check with inmates then
present whether they were soon leaving to return
to work or to go elsewhere, or whether they would
remain in the range unit and thus be under his
general supervision. At that time he called out to
Jackson who appeared to be asleep and who
responded only after two or three calls, and who
indicated then that he was not going to work but
was staying where he was.
About an hour later Izatt and others working
under Mr. Alexander Lubimiv, a living unit super
visor at Joyceville, were directed by the latter that
a search would be conducted of range 1-D, the
range containing Jackson's cell. Lubimiv and
another officer remained at the head of the range
to direct inmates to the range common room and
to block the barrier providing access to the rest of
the cell block building. Izatt proceeded to the far
end of the range to direct any inmates there
present to go to the range common room while the
search of the range was completed. Again, as he
had done earlier, Izatt had to call two or three
times to waken Jackson whose cell was at the far
end of the range. When he had awakened him he
directed Jackson to the common room since staff
were going to conduct a search. Jackson got up,
put on his jacket, left his cell and proceeded down
the range toward Lubimiv. Izatt says he noticed
Jackson swaying from side to side, saw him bounce
against projecting handles of some of the doors but
then he noticed that Jackson seemed to straighten
up. Izatt followed Jackson, checking on other cells.
He observed Jackson gesticulating with his hands
and talking loudly to Lubimiv who appeared to be
directing Jackson into the common room.
Lubimiv, who had remained at the head of the
range, testified that he observed Jackson walking
from his cell. When he got near the head of the
range, instead of turning into the common room as
expected, he continued moving the short distance
towards Lubimiv as though to push past him but
he stopped just before reaching Lubimiv. When
asked where he was going, Jackson said he was
going to the committee room, that he was a com
mittee man and that he had a meeting which was
to have started at 12:30. He was told by Lubimiv
there was a search underway, that he could not
then go to the committee room which was outside
the range unit, and he would have to go to the
common room. Jackson complied, though only
after they had discussed the matter briefly and in
loud voices.
Apparently Izatt and Lubimiv discussed this
incident and Izatt, then or earlier, mentioned his
experience in having to waken Jackson about an
hour earlier. Izatt then completed a SITREP, a
situation report, on the later incident in the follow
ing terms:
Subject: (number) Incident Jackson
At 13:20 hours on the 29th April, 1987 I had cause to waken
the above inmate in his cell and told him to go to the 1D
common room. Jackson got out of bed and he looked very
unstable, which I attributed to him being half asleep. How
ever as time went on this [sic] became quite belligerent and
indignent [sic] and just as unsteady on his feet, which leads
me to believe that he was under the influence of an intoxicant
"other than brew".
This report was signed by Izatt, the originator, as
completed at 13:40 on 29 April 1987. Opposite the
printed instruction at the bottom "Note: Forward
to Chief Correctional Operations" appears a hand
written notation. In a copy of this report typed
from the original handwritten report this notation
is reproduced as "Jackson Required to be tested".
In the original handwritten report that notation
may be "Jackson Refused to be tested" and an
initial is added which appears to be "J".
Izatt, in direct and cross-examination, testified
that Jackson's unsteady walk from his cell, part of
the conduct leading to the SITREP of April 29,
was consistent with Jackson being half asleep or
-just waking up, and he was not aware that Jackson
had been scheduled for an appointment on com
mittee matters at 12:30. However, Izatt had com
pleted another SITREP the previous evening
reporting another inmate he had then believed to
be under the influence of a behaviour altering
substance other than "brew" and he had included
in that report the names of four other inmates
reported to him by another living unit officer as
apparently in the same condition. While Jackson
was not among those noted the previous evening
and it is not clear that any of those named were
from his living unit, Izatt had suspicions that
drugs or other intoxicants were being consumed by
inmates and it seemed to him that Jackson's bellig-
erence on April 29 was different from his more
usual brusque, but not objectionable, mannerisms.
When the inmates including Jackson were
secured in the common room Lubimiv telephoned
to the Chief of Correctional Operations, J. Finu-
can. Lubimiv had received the previous day Izatt's
SITREP about five inmates, not including Jack-
son, who appeared to be under the influence of
intoxicants. He had also received on April 28 a
SITREP from another officer reporting the latter's
observations at 20:10 hours on April 25 of persons
present in the committee room at or near range
1—D. That report named those identified including
Jackson, acknowledged that it was not known what-
they were talking about, and it noted "several are
suspected to be runners" and that the same
inmates had been observed in the committee room
on several occasions.
In his call to Finucan, Lubimiv reported the two
situations of Izatt's interactions with Jackson on
April 29, in both of which Jackson had seemed
hostile and aggressive. Lubimiv believed that Jack-
son's desire to get to the committee room, which
was accessible from outside the living range, was a
response to the search. He asked that the commit
tee room be searched, advised that a report would
be completed about the incidents with Jackson and
that he would recommend Jackson for urinalysis
testing. Lubimiv testified at trial that it was his
impression that Jackson had been "overly aggres
sive", and loud, that he was in an ugly mood "his
reactions were inappropriate . . . especially so since
somebody that knows within our institution, inter
actions with staff, that is not the appropriate way
to deal with things".
Thereafter, the committee room was searched
and nothing was there found. It was also con
firmed that Jackson had indeed been late for a
meeting which, as he had earlier claimed to Lubi-
miv, was to have started at 12:30. Jackson was
then given a pass and permitted to go to the
committee room.
Shortly before 15:45 hours that same afternoon
Jackson was directed to report to the institution's
hospital for urinalysis. On arrival he was ordered
by officer Campbell to provide a urine sample. He
declined and was given until 17:50 hours to report
again to provide a urine sample. He was apparent
ly cautioned by officer Campbell that failure to do
so would result in possible disciplinary or adminis
trative proceedings. At that time Jackson was
given a document, a "Requirement to Provide a
Urine Sample and Notification of Test Results".
This included information that it was from J.
Finucan (the Chief of Correctional Operations) to
Jackson, directing the latter to report to the hospi
tal to provide a urine sample for urinalysis in
accord with the Commissioner's Directive, and
advising on the form that "failure to comply with
this order will result in disciplinary and/or
administrative action". That form also indicates
that it was delivered to Jackson at 15:46 hours by
officer Campbell, that Campbell granted an exten
sion to 17:50 hours and that after the extension the
inmate failed to provide the urine sample. Officer
Campbell's signature was entered for each step in
the process in which he was involved. In accord
with standing orders of the institution Campbell
then completed an Inmate Offence Report and
Notification of Charge, reporting Jackson's failure
to provide a urine sample, after a two hour exten
sion. Those responsible for considering that report
charged Jackson under paragraph 39(a) of the
Regulations, that he "disobeys or fails to obey a
lawful order of a penitentiary officer". This led to
the proceedings before the Disciplinary Tribunal
and ultimately to the trial of this matter.
Jackson refused to provide a sample when
ordered to do so because in his view it was con
trary to his constitutional rights to order him to
provide one, a position he maintained by written
submission to the Disciplinary Tribunal and the
basis of his action in this Court.
Drugs in the Prison Setting: The Legislative
Regime and its Application
The Penitentiary Service Regulations, enacted
pursuant to the Penitentiary Act, R.S.C., 1985, c.
P-5, section 37, provide in part:
39. Every inmate is guilty of a disciplinary offence who
(a) disobeys or fails to obey a lawful order of a penitentiary
officer,
. . .
(i.1) consumes, absorbs, swallows, smokes, inhales, injects or
otherwise uses an intoxicant,
. . .
41.1 (1) Where a member considers the requirement of a
urine sample necessary to detect the presence of an intoxicant
in the body of an inmate, he may require that inmate to
provide, as soon as possible, such a sample as is necessary to
enable a technician to make a proper analysis of the inmate's
urine using an approved instrument.
(2) In any hearing in relation to a contravention of para
graph 39(i.1), evidence that a sample of urine taken and
analyzed in the manner referred to in subsection (1) contains
an intoxicant establishes, in the absence of evidence to the
contrary or in the absence of a reasonable explanation of the
presence of the intoxicant, that the inmate who provided the
sample has contravened paragraph 39(i.1).
(3) In this section,
(a) "approved instrument" means an instrument that is
designed to make an analysis of a sample of urine and is
approved by a directive; and
(b) "technician" means a person designated by the Commis
sioner to operate an approved instrument.
Paragraph 39(i.1) and the whole of section 41.1
were adopted in 1985 as was the following defini
tion under section 2 (see SOR/85-412):
"intoxicant" includes alcohol, a drug, a narcotic or any other
substance that causes an hallucination, but does not include
any authorized medication used in accordance with direc
tions given by a member or a health care professional.
The Penitentiary Act and the Regulations have
dealt with "contraband" in the prison setting
under arrangements which antedate the 1985
regulatory changes to deal specifically with drugs.
The provisions concerning contraband, it seems to
me, are useful to bear in mind. The Act provides
for forfeiture of contraband which is defined as
"anything that is in an inmate's possession in
circumstances in which possession thereof is for
bidden by any Act, regulation or Commissioner's
directive, or by an order of general or specific
application within the penitentiary in which the
inmate is imprisoned" (R.S.C., 1985, c. P-5, sub
section 35(4)). The Regulations in turn define
contraband as anything an inmate is not permitted
to have in his possession, and under paragraphs
39(i) and (j) disciplinary offenses include having
contraband in one's possession, and dealing in
contraband with any other person. Directives and
standing orders provide for those effects an inmate
is entitled to have in his possession, including
clothing and personal effects. In the result, any
thing not expressly authorized to be in an inmate's
possession when found there is considered contra
band, and that finding may lead to disciplinary
proceedings, in addition to forfeiture.
The regulations authorizing mandatory urine
sampling for testing purposes and providing for
consequences of positive tests were adopted in
1985 after considerable study. Through Commis
sioner's Directives and institutional standing
orders, the program as originally conceived and its
subsequent evolution can be traced. The objectives
of the program as originally conceived' were to
detect the presence and deter the use of drugs and
any other form of intoxicants, excluding author
ized medication, to enhance the capability of pro
viding a safe and secure environment for staff and
inmates, and to afford inmates the opportunity for
self-improvement and to objectively identify,
define and institute appropriate treatment oriented
programs. As the program was developed, plans
were to include provision for testing a random
selection of 10 percent of all inmates every two
months as a key element for detection and deter
rence of the use of intoxicants, for testing of
inmates with a history of drug abuse either outside
or inside the institution, or for testing where a staff
member had reason to believe that an inmate was
under the influence of an intoxicant. From the
beginning it was contemplated that inmates who
' See Administrative Guidelines for the Urinalysis Program,
(Correctional Service of Canada) Operational Security June
1985, and Appendix "A" Commissioner's Directive 800-.
tested positive for the presence of intoxicants in a
urine sample would be charged with a disciplinary
offence (under paragraph 39(1.1)). Anyone refus
ing to provide a sample of urine within two hours
of a request to do so would be charged with refusal
to comply with a direct order under paragraph
39(a) and standing orders at Joyceville authorizing
the urinalysis program there have so provided from
the time it was initiated. Those orders have also
provided that failure to provide a requested urine
specimen shall be treated, I assume for purposes of
penalty upon conviction, "in a manner identical to
a positive test result". In addition to penalties
arising from conviction of disciplinary offenses, the
Director was to have authority to impose adminis
trative sanctions, including denial or deferral of
individual or group temporary absence privileges,
or of family or other visits, or the inmate's involve
ment in social-cultural program activities. These
arrangements for penalties upon conviction have
continued in place.
Initially it was planned that the program for
urinalysis surveillance would be introduced by
standing orders at two institutions in the fall of
1985, Joyceville in Ontario and Cowansville in
Quebec, with a view to using these for pilot pro
grams that might then be adapted to other institu
tions. Before arrangements were completed to do
so at Cowansville, inmates there initiated action in
the Quebec Superior Court to contest the constitu
tional validity of paragraph 39(i.1) and section
41.1 of the Regulations in light of the Canadian
Charter of Rights and Freedoms. The Correction
al Service of Canada apparently agreed not to
implement the program in the Quebec region
pending the outcome of that action. As noted
earlier, in Dion c. Procureur general du Canada,
supra, Mr. Justice Galipeau, by decision rendered
August 14, 1986 granted the relief sought and
declared the regulations in question were null and
of no force and effect since in his judgment they
violated section 7 of the Charter and were not
saved by section 1.
I understand that the Dion decision has been
appealed but the appeal has not yet been heard. In
defending this action initiated by Jackson counsel
for the Attorney General of Canada seeks to
ensure that evidence be fully considered, including
sociological evidence, important in his view in
assessing the constitutional issues. Counsel sug
gests such evidence was not submitted to Mr.
Justice Galipeau in Dion.
Yet from his decision it appears that Galipeau J.
considered some evidence of this sort, intended
apparently to support the same purposes of the
Regulations as are urged here by counsel, though
evidence in that case may have been more directly
related to the situation then prevailing at Cowans-
ville. In the translation of the decision (at 30
C.C.C. (3d) pages 118-119)
The evidence is to the effect that in the Cowansville Peniten
tiary, the consumption of intoxicants, in particular drugs, is
very widespread. Its consequences are disastrous—the life,
security, and the property of users are in danger as well as
those of their fellow inmates, the guards, and the penitentiary
authorities.
Experience has shown that serious breaches of discipline,
which are generally translated into assaults, brawls, thefts,
refusals to obey orders, misconduct, blackmail, threats against
inmates, or on the outside, against family or friends of inmates
with a view to forcing them to traffic in drugs.
The defendant has the right and the duty to intervene by
means of his laws and regulations in order to check this
scourge. The most convenient means presently available to
detect the presence of intoxicants in a user, is by means of an
analysis of a sample of his urine. This measure, in addition to
fulfilling its principal function, has a solid dissuasive effect.
Undoubtedly, the excessive consumption of drugs and the
disastrous consequences that it leads to, constitute a growing
problem in our society.
One of the Regulations, section 41.1, was con
sidered in Dion. In this case the issues arise from
the application of that regulation and from
application of standing orders applicable in the
case of an inmate who failed to obey an order, a
requirement under section 41.1. That factual basis
was absent in Dion where a declaration was sought
before the regulation was applied. Here the issue
of constitutionality of section 41.1 is directly
raised by the plaintiff Jackson's defence before the
Disciplinary Tribunal, that he declined to provide
a sample of urine when ordered to do so because
the order, and section 41.1 under which it was
given, were unlawful.
Additional facts clarifying the application of the
Regulations in this case were provided by evidence
of Mr. R. P. Harvey, Director of Custody and
Control, Correctional Service of Canada. In his
current and previous senior responsibilities within
the Service he had major responsibility for de
velopment and introduction of the urinalysis pro
gram. His evidence indicates that it was decided,
despite legal action initiated by inmates at
Cowansville, to proceed with implementation of
the planned pilot program at Joyceville. It was
initiated in November 1985 with certain modifica
tions from original plans. No provision was made
for random sampling on a regular or any other
basis, a key element of the original plan, pending
resolution of uncertainties arising from the action
initiated in the Quebec Superior Court and
because it was not considered economically viable
to proceed with that aspect of the program in only
one institution. Notification in advance of intro
duction of the program was provided in writing by
the Warden to staff and inmates at Joyceville, a
practice followed on subsequent occasions when
major modifications were planned. Thus, for
example, they were advised in advance that testing
would be done initially for only two substances,
cocaine and heroin, and later advice gave notice of
the dates on which additional substance testing
would be added for cannabis, methaqualone
(speed), phencyclidine (PCP), benzodiazepine
(tranquillizers), alcohol and methadone. As the
tests were introduced notice was given that evi
dence of positive tests would not be admissible in
disciplinary proceedings for the first four months,
though administrative sanctions might be applied,
and from the beginning refusal to provide a sample
within two hours when ordered to do so was sub
ject to disciplinary proceedings under paragraph
39(a), with penalties similar to cases where tests
were positive.
Inmate selection for testing was initially notified
in terms similar to section 41.1, that is
When a staff member considers the requirement of a urine
sample necessary to detect the presence of an intoxicant in the
body of an inmate, he may require that inmate to provide, as
soon as possible, such a sample as is necessary to enable a
technician to make a proper analysis of the inmate's urine.'
Examples of inmates who may be tested were
listed as inmates suspected to be under the influ
ence, those convicted in disciplinary court on
charges of possession, trafficking and/or consump
tion of intoxicants, and those involved at any stage
in a pre-release program, visiting or similar pro
gram where intoxicants had played a role in their
criminal offence or any period of their incarcera
tion. In a later Standing Order (No. 572 of 87-08-
04) inmate selection for testing was modified for
those considered to be under the influence, to
provide that where a staff member considers the
requirement of a urine sample necessary to detect
the presence of an intoxicant he submits a report
which is to be reviewed at a daily meeting of living
unit supervisors and security staff, and the Chief,
Correctional Operations then decides whether uri
nalysis is appropriate. If so, the urinalysis techni
cian advises the inmate of the requirement to
provide a sample to enable a proper analysis.
While it is not clear that the latter provision was
formally in place in April 1987 when Jackson was
directed to provide a sample of urine for testing,
Harvey indicated that the same or a similar pro
cess prevailed in Jackson's case. Thus the decision
was made by officer Finucan, the Chief of Correc
tional Operations on duty, to require a sample for
2 Memorandum, 1985-11-12 from Warden (R. Gobeil) to All
Staff, Inmate Population, p. 1, para. 1.b.
testing after completion of the written SITREP by
Izatt and the oral report of Lubimiv.
Perhaps one other detail, one that concerned
Jackson, is of note here. While standing orders at
Joyceville provided for collection of the sample
under direct or indirect observation, Harvey
indicated that at Joyceville the hospital facilities,
to which most inmates including Jackson, were
directed to provide a sample, did not readily
permit anything but direct observation in voiding
of urine when a sample was required. In these
circumstances the standing order did provide that
only staff of the same sex as the inmate providing
the sample shall supervise the voiding of that urine
sample.
At the time of the trial of this matter, in March
1989, Joyceville was the only institution in which
the urinalysis program had been introduced on a
regular continuing basis. It had trained and quali
fied staff with "approved instruments" for testing.
It has also served to provide analysis of samples for
testing from inmates of some neighbouring institu
tions in the Kingston area, apparently on a
demand or request basis without fully developed
programs for testing inmates of those institutions
on a scale comparable to that introduced at
Joyceville.
Drugs in the Prison Setting: The Sociological
Background
Evidence was introduced in the trial of this
matter relating to perceptions of the impact of
compulsory urinalysis, to violence in the prison
setting, to the relationship of drugs to violence, to
living conditions and supervision arrangements
within the penitentiary system, and also about the
testing arrangements including technical aspects of
testing which were introduced at Joyceville and
about comparable conditions, arrangements and
experience within the federal penal system in the
United States. This was intended to assist in reso
lution of the constitutional issues raised in this
matter by putting into full context the system of
testing adopted, the reasons for it and comparable
arrangements and experience in other jurisdic-
tions.
An important aspect of the background of this
case, from the perspective of Jackson, arises from
his perceptions of the system of testing and his
concerns about it. In his view the system of testing,
requiring a urine sample when ordered to do so, or
failing that being liable to disciplinary or adminis
trative punishments, was unfair. On its face the
regulation made inmates subject to the whim of
any officer whether the latter had any special
training or not and whether or not the officer had
any reason to believe the inmate was under the
influence of an intoxicant. In his own case, he
believed he was ordered to provide a sample of
urine for testing because he had recently become
chairperson of the inmate committee and had
made known his objective of making the commit
tee more responsive to inmates' concerns than it
had previously been. He considered that he had
been "set up", "to slow me down, slow the com
mittee down", as he expressed it in cross-examina
tion. The process was unfair because the officer
who suspected an inmate of being under the influ
ence did not himself speak to the inmate to make
any inquiry; rather he filed a report and someone
else ordered the inmate, for reasons the inmate
was not informed about, to provide a sample of
urine.
As instituted at Joyceville, the program in Jack-
son's view was unfair to those who refused to
provide samples when ordered to do so as a condi
tion of participation in pre-release or visiting or
other social programs. He suggested that the insti
tution required a urine sample before and after
participating in such program with threatened loss
or postponement of opportunity to participate
unless consent were given and a sample provided
for testing. In the result more inmates were spend
ing more time within the institution with less
access to pre-release and visiting programs.
Finally, Jackson's view was that it simply was
not right that inmates be required to provide a
sample of urine under observation when ordered to
do so. He considered it "degrading". The program
in his view worked against the objective of restor
ing an inmate to a position where he could adjust
to responsibilities in the world outside the prison.
At least one of the witnesses for the defendants,
present throughout Jackson's brief testimony,
indicated some surprise at this reaction for his
experience was that generally within the living
ranges of prison institutions inmates paid little
attention to standards of privacy, and there was
considerable nudity evident in relation to dressing,
showering, washing and even in relation to use of
toilet facilities. I note only that there may be a
considerable difference in a psychological sense
between a situation where the individual by choice
or his own neglect shows little concern for privacy
and a situation where he is directed to provide a
urine sample before another person, at risk of
punishment if he fails to do so.
Dr. James Vantour gave evidence as an expert
witness for the defendants. He is a sociologist with
a doctor's degree in criminology and substantial
background in teaching and research. He had been
a consultant to the Correctional Service of Canada
on a number of occasions before his appointment
in 1987 as Advisor to the Commissioner and
Deputy Commissioner of the Service. On the basis
of research and studies he had completed or which
were known to him he provided opinion about
violence as a continuing and significant aspect of
life within the prison system. While there are a
variety of causal factors, violence tends to be
greater in maximum security institutions than in
medium institutions and greater in the latter than
in minimum security institutions mainly because
of the backgrounds of the inmate population in
each of these levels. According to his testimony, in
1988 more than 75% of those in maximum institu
tions, 60% of those in medium institutions and just
under 50% of those in minimum security institu
tions had been admitted for crimes of violence.
This accounted for nearly 62% of all inmates in
federal institutions whose latest crimes leading to
incarceration were crimes of violence. The higher
levels of security, reflecting the level of general
tendencies to violence of the inmates, provide more
intensive surveillance and less inmate freedom
within the institution and in relation to contacts
with the outside world.
In Dr. Vantour's opinion the risk of violence has
increased in recent years, with more frequent and
more serious incidents of violence inside the prison
system, and more frequent resort by inmates to
weapons. The risk of violence appears greater par
ticularly between inmates. While supervised, they
have to depend in the main upon their own
resources for their safety and security within the
penitentiary society. It is often difficult for staff or
other inmates to intervene when conflict occurs.
The prison society is now much more open to
contacts, than was once the case, both between
inmates and between inmates and their families or
friends from outside. Programs facilitating this are
designed to equip inmates to return with responsi
bility to supportive family and friends when their
sentence is served. According to Dr. Vantour one
aspect of these changes is that there are special
pressures on inmates, particularly in relation to
carrying, use and distribution of contraband,
mainly drugs of various kinds, that can be moved
in small quantities at a time. He testified about the
drug related "market place" within the institution
al setting and the pressures this creates from those
who seek to control the market or those involved
with it, whether by their own choice or under
pressure. A recent Service study suggests that as
many as 20 to 33% of inmates in protective cus
tody are now there at their own request because of
drug related problems.
As another example of the relationship between
drugs and violence, Dr. Vantour referred to a 1984
report by Dr. Robert M. MacMillan, Regional
Coroner, Kingston to the Chief Coroner for
Ontario, and to a study Vantour himself had
directed for the Correctional Service of Canada.
Both studies were concerned with circumstances
surrounding nearly a dozen homicides in Kingston
area institutions from late 1982 to early 1984. In
both studies drugs were regarded as having had a
significant role. MacMillan's report emphasized
that drugs were evident in the victims or were
involved in the homicides in a majority of the cases
examined and Vantour's study was concerned with
the adverse effects of the institutional market
place for drugs. In a later study related to contra
band, staff of the Service included information
that of 181 major incidents of violence in 1985 and
1986 contraband drugs were demonstrated to have
played a role in precipitating 106, or 58% of the
incidents reported.
It is Dr. Vantour's opinion that institutional
control of drugs within the prison setting would
contribute to reduction of the risks and levels of
violence and would facilitate and encourage pro
grams to assist inmates to avoid continuing
involvement with drugs. He did not profess to be
an expert on urinalysis testing but he does believe
that an appropriate program, not limited to cir
cumstances where staff has a reason to believe an
inmate is under the influence of an intoxicant,
probably a program including random testing,
would improve institutional control of drugs, lead
to lessening of the oppressive nature of the institu
tions and to reduction of the risks of violence.
In addition to evidence about the testing pro
gram at Joyceville, Harvey testified about the
evolution of programs generally and the arrange
ments for surveillance and life in federal penitenti
aries in Canada. He described in a general way the
differences between institutions by security level in
the system. The higher the security level, the
higher the staff to inmate ratio, the greater the
surveillance, the lesser freedom of movement for
inmates within the institution, and the more regu
lar are the searches of inmates by metal detectors,
pat down or frisk searching and nude or skin
searching. Institutions with lower security classifi
cations tend to have a wider range of programs for
internal activities and contacts with the world
outside the institution. Trades training and educa
tional programs are offered, activities program-
ming has been established, a range of visiting
programs now exists, and in lower security institu
tions particularly, pre-release programs are avail
able for those considered to be qualified for escort
ed or unescorted temporary absence or for day
parole.
With the expansion of programs especially for
greater contacts within the prison setting among
inmates and between them and the outside world,
the Correctional Service of Canada had also
experienced an increasing volume of contraband
within institutions, much of it drugs. The risk of
violence has also increased with expanding drug
related activities in the prison market and drug
induced individual indifference to usual prison
norms and discipline requirements. Through
reports referred to by Harvey, estimates of the
dollar volume of the internal drug market were
suggested which seemed inordinately high, and
estimates of success in seizing contraband, seemed
very low. Despite internal intelligence, searches by
detectors, frisking and even skin or nude searches
especially related to pre-release programs and
major visitor occasions, it seems little contraband
is actually found and forfeited. Harvey indicated
that those responsible for safety and security in the
institutions believe that most drugs are transported
by inmates themselves, and by family members
and other outsiders, in body cavities, principally
the anus and vagina, hidden so as not to be
detected by visual search. Apparently medical per
sonnel of the Service decline to participate in
security searches of any bodily cavities.
It was against this background of increasing
opportunities for bringing contraband, particularly
drugs, into the institutions, together with the per
ceived experience of increasing contraband and
increasing risks of violence, and the relationship of
drugs to violence, that led to the development of
the urine testing program for the Service. After a
voluntary program run at Leclerc institution in
Quebec in the early 1980's had been tested under
Harvey's supervision there, considerable study of
similar programs in the United States and else
where had led to the program introduced at Joyce-
ville and originally intended also for Cowansville.
Its primary long term objectives were to support
the Service's responsibilities for safety and security
of staff and inmates, to detect and deter unauthor
ized drug usage and to develop programs to assist
inmates with a history of drug abuse. In seeking
those objectives Harvey seemed to consider
random testing a particularly valuable part of the
planned program, not yet implemented.
Dr. R. E. Willette, a consultant and president of
his own company in the United States, providing
advice on testing of drugs and related matters,
testified at the trial about the quality of the testing
instruments, the analyzing processes and the com
parative ease in training for their application,
which were adopted for the program of the Cor
rectional Service introduced at Joyceville. A
medicinal chemist, with extensive experience in the
development of testing processes and instrumenta
tion, his evidence was not seriously contested and
the validity of the urine testing system adopted by
the Correctional Service was not seriously ques
tioned in these proceedings.
His evidence was helpful in confirming the
validity of results of the EMIT-ST test (the
Enzyme Multiple Immunoassay Technique—
Single Test), the only test in place at the time
Jackson was here directed, and declined, to provide
a sample. The GC/MS (Gas Chromatography/
Mass Spectrometer) test which confirms results of
a positive EMIT-ST test, has since been intro
duced, following long standing practice in the
United States. While it has no significance for this
case, Harvey's evidence was that when Jackson
was ordered to provide a sample, with only the
EMIT-ST equipment and process in place, a por
tion of any urine sample provided by an inmate
was retained in the event the inmate should
request independent testing by outside experts.
Since then the confirmatory testing using the
GC/MS process is conducted at Joyceville by the
Service itself.
William L. Davis also testified as an expert
witness. Now a consultant on correctional matters,
he recently retired as Administrator of Correction
al Services, the chief executive officer of the feder
al penitentiary system in the United States. He
had served for 25 years in the U.S. penitentiary
service, with increasing responsibilities over the
years at the institutional, regional and national
levels. From 1978 when a program of urinalysis
surveillance was initiated in federal prisons in the
United States he had been directly involved in its
application and administration.
On the relationship of drugs and violence Mr.
Davis' evidence was that, coincidental with
increasing drug use in society generally, experience
in U.S. federal prisons had earlier indicated an
increasing use of drugs among inmates and that
this had a noticeable direct bearing upon the level
of violence. In the 1960's and 70's the number of
incidents involving violence between inmates and
between inmates and staff increased and upon
investigation it appeared clear that the use of and
trade in drugs in institutions was playing a signifi
cant role in incidents of violence. This was so even
though hard core drug addicts were a relatively
small portion of total inmates and most users of
drugs in the institutions were so-called recreational
users not addicts. Before introduction of the pro
gram in the United States inmates and staff were
fully informed about what was planned and in the
first year statistical reports indicated substantially
fewer cases of positive drug tests than had been
anticipated. Davis said that it was believed that
this clearly indicated that the prison population
knew the program was to be treated seriously for
in that first year the number of incidents of vio
lence declined significantly as did the number of
those incidents which appeared to be drug-related.
While it was difficult to comment on the level of
violence generally, Davis did indicate that since
the program was introduced in 1978, the number
of incidents of violence related to drugs has been
reduced and has generally continued to decline.
From the beginning the system introduced in
U.S. federal prisons had involved three categories
of inmates. Random sampling of 5% of all inmates
in each institution was conducted each month
based upon computer-generated lists, a process
that required a sample from each inmate present
in the institution whose name was included on the
list in order from the top of the list until 5% of
those present were tested. The second group, who
are each required to be tested monthly, were those
considered a high risk group, including all those
with a history of drug addiction, previous positive
tests in the institution, or those whom a staff
member believes may be under the influence of a
drug and who then may be required to provide a
sample if ordered to do so by a staff supervisor
who has discretion to so order. The third group
tested are those engaged in community activities,
including the equivalent of pre-release programs in
Canadian institutions, that is, those on escorted or
unescorted leave from an institution, or those par
ticipating in other group activities outside the
institution. Among this third group at least 50%
are to be tested on their return to the institution
and the Warden of each institution may require
that all of them be tested on every return to the
institution. It is of some interest to note an inmate
may be subject to urinalysis testing on the basis of
a mandatory sample more frequently than once a
month if he happens to be included within more
than one of these groups.
The program introduced in U.S. federal prisons
has utilized the EMIT test and the GC/MS test
for confirmation of positive tests. The U.S. service
has not done any of its own testing but has the
tests conducted by outside laboratories. A positive
test or refusal to provide a sample when ordered to
do so is subject to disciplinary action with penal
ties related to the offence. Thus if the offence does
not involve a visiting program, penalties in relation
to such program are not imposed.
From his experience Mr. Davis offered a
number of opinions. He has no doubt that violent
incidents arising from drug use or marketing
within institutions have continued to decline in
number over the years, particularly since testing
for marijuana, once the most used drug in institu
tions, was incorporated into the program in 1984.
He believes that the perceived benefits of the
system adopted in U.S. institutions depend upon
regular testing of the three groups identified for
this provides a program which is clearly to be
taken seriously and thus deters use and trafficking
of drugs in institutions. In his view, if testing were
only possible where staff had reasonable grounds
to believe that an inmate was under the influence
of drugs, that would hardly be worth pursuing. I
assume he meant by this that it would do little to
deter use and trafficking. Finally it was his opinion
that Jackson's sense that an order to provide a
urine sample for testing was degrading and that
overall the program as introduced at Joyceville
had a negative impact on life in the prison, would
not be shared by most inmates. In his view and
from his experience in U.S. institutions, the
majority of inmates prefer a system which ulti
mately deters drug use and trafficking and con
tributes to a more safe and secure environment
within the institutions.
Resolving the Issues
Having summarized significant evidence in this
action, my conclusions on the issues raised may
now be summarized as follows, in the order in
which these were discussed by counsel for the
plaintiff. The reasons for these conclusions are
then set out in turn in relation to each of the
issues.
1) After brief comment I decline to determine
the issue concerning the jurisdiction of the Dis
ciplinary Tribunal to deal with Charter issues
since a determination of that matter is not
essential for disposition of this case.
2) Section 41.1 in so far as it permits a member
to require an inmate, who is considered to have
ingested an intoxicant, to provide a specimen of
the inmate's urine for analysis to detect the
presence of an intoxicant in the body of the
inmate contravenes section 8 of the Charter by
providing for an unreasonable search.
3) Section 41.1 in so far as it permits a member
to require an inmate, who is considered to have
ingested an intoxicant, to provide a specimen of
the inmate's urine for analysis to detect the
presence of an intoxicant in the body of the
inmate, when coupled with disciplinary proceed
ings for failure to obey a lawful order if the
requirement not be met, contravenes section 7 of
the Charter by depriving the inmate of the right
to liberty and security of the person in a manner
that does not accord with the principles of fun
damental justice.
4) Section 41.1 is not a reasonable limitation on
rights and liberty set out in sections 7 and 8 that
can be demonstrably justified in a free and
democratic society and thus is not supportable
under section 1 of the Charter.
5) Section 41.1 does not discriminate in the
manner set out in section 15 of the Charter and
it does not infringe upon or detract from equal
ity rights as established by that section.
Jurisdiction of the Independent Disciplinary Tri
bunal to deal with Constitutional Issues
The plaintiff seeks a declaration that the Disci
plinary Tribunal unlawfully declined to exercise its
jurisdiction in this case. On this issue the
Independent Chairperson of the Tribunal, in his
decision rendered in November, 1987, concluded:
3. Counsel for the inmate in written arguments submits that
section 41.1 of the Regulations is "ultra vires" the Constitution
of Canada as it is an [sic] inconsistent with section 7 and
section 8 of the Charter. Counsel goes further and submits that
since section 41.1 is "ultra vires" and there being no other
statutory or common law authority for the order in question,
the order itself was illegal and need not have been obeyed.
4. Before dealing with Counsel's argument it must first be
determined if an Independent Chairperson, such as myself, has
the jurisdiction to determine the validity of this or any other
Regulation contained in the Penitentiary Service Regulations.
5. In the case of Ouimet v. The Queen reported in 1978, 1
F.C.R. at 627 [sic at 672], given October, 1977, it was held
that the question "whether or not Regulations are ultra vires is
for the Courts to determine and not the Tribunal itself".
6. Again, the Supreme Court of Canada, in the Martineau
Case, held that a prison tribunal is not a Court. This case was
cited and followed in the case of Joyce Bull v. Helen King
MaLeod [sic] reported 1986 F.C.R. a decision of the Federal
Court Trial Division in [sic] December 5, 1986.
7. Having regard to these cases, I find that this tribunal is not
a Court and I therefore do not have any jurisdiction to deal
with the question of whether or not section 41.1 is "ultra vires".
In my view the judicial precedents relied upon
by the Chairperson are not conclusive on the ques
tion of jurisdiction of the Disciplinary Tribunal to
deal with defences, here raised on behalf of Jack-
son, based on the Canadian Charter of Rights and
Freedoms. It is surprising that no reference was
made to the one precedent dealing directly with
the issue here raised, the lawfulness of an order
under section 41.1 of the Regulations, that is Dion.
That decision was issued by Mr. Justice Galipeau
in August 1986, and was probably published in the
report series prior to the decision of the tribunal
some 15 months later in November 1987. The
decision in Dion must have been known to the
Commissioner and other senior officers of the
Correctional Service, as it apparently was to the
witness Harvey, before disciplinary proceedings
were initiated against Jackson in May 1987.
While appeal of the decision in Dion would have
the effect of staying any order of Mr. Justice
Galipeau (see: article 497 of the Quebec Code of
Civil Procedure [R.S.Q., c. C-25]), I have some
question about the fairness of the process of disci
plinary proceedings in which Jackson was involved
if Correctional Service officers did not bring the
decision in Dion to the attention of the Chair
person during those proceedings. My question
remains but I do not propose to pursue it for no
evidence on the matter was presented and that
question was not argued at trial.
What was argued at trial was the jurisdiction of
the Disciplinary Tribunal in light of evolving juris-
prudence concerning jurisdiction of tribunals other
than superior courts to deal with Charter issues
raised before them. That general matter has now
been dealt with in a number of cases arising in the
provincial courts and in this Court, often in rela
tion to one or both of subsections 24(1) and 52(1)
of the Constitution Act, 1982 [Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C.,
1985, Appendix II, No. 44]] which includes the
Charter. Those sections provide:
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
• • •
52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of
the Constitution is, to the extent of the inconsistency, of no
force or effect.
Subsection 24(1) does not confer any remedial
jurisdiction, at least so far as tribunals other than
superior courts are concerned: Mills v. The Queen,
[1986] 1 S.C.R. 863. Whether subsection 52(1) is
ultimately to be accepted as the basis for some, or
all, or none of the many tribunals other than
superior courts to decline to apply laws which are
said to be contrary to the Charter, awaits clarifica
tion by the Supreme Court of Canada. Decisions
of the Federal Court of Appeal on this matter have
recognized the authority of certain bodies to refuse
to apply legislation or regulations found to be in
conflict with the Charter. Deemed competent to do
so have been the Immigration Appeal Board (Law
v. Solicitor General of Canada, [1985] 1 F.C. 62
(C.A.)) and Boards of Referees and Umpires
under the Unemployment Insurance Act, 1971
[S.C. 1970-71-72, c. 48] (Zwarich v. Canada
(Attorney General), [1987] 3 F.C. 253 (C.A.)) and
Tetreault-Gadoury v. Canada (Canada Employ
ment and Immigration Commission), [1989] 2
F.C. 245 (C.A.). In other cases the same Court
has declined to recognize that a review committee
dealing with appeals under the Family Allowances
Act, 1973 [S.C. 1973-74, c. 44] has any capacity
to deal with the issue, at least in cases where it has
purported to provide remedies beyond the scope of
its statutory powers: (Canada (Attorney General)
v. Vincer, [1988] 1 F.C. 714 (C.A.); Alli v.
Canada (Attorney General) (1988), 88 N.R. 1
(F.C.A.); Canada (Procureur general) v. Sirois
(1988), 90 N.R. 39 (F.C.A.)). The matter may be
clarified by the Supreme Court of Canada when it
deals with an appeal in Tetreault-Gadoury v.
Canada (Canada Employment and Immigration
Commission), supra, leave to appeal granted
[ [1989] 2 S.C.R. 1110].
If it were necessary for decision in this case to
determine the issue concerning jurisdiction of the
Disciplinary Tribunal, an argument of the plaintiff
would have to be considered. That is, if the tri
bunal has no jurisdiction to deal with a defence
based on Charter issues, so that an accused can
only raise that defence effectively by resorting to
judicial review, the inmate would be denied rights
assured by section 7 of the Charter. It is submitted
that failure to consider defences based on the
Charter, when an accused inmate is charged
before a Disciplinary Tribunal, would deprive the
inmate of his liberty and security contrary to
principles of fundamental justice. In the circum
stances of this case that deprivation might also be
said to arise from failure of the independant
chairperson of the tribunal to apply the law as
determined in the superior court, if that were
known, as it ought to have been.
I would be inclined to accept the plaintiff's
submission if it were necessary to determine this
issue, at least in a case where the matter raised
before the Disciplinary Tribunal is not one of first
impression but has already been determined by a
superior court, here the Quebec Superior Court in
Dion, before the disciplinary proceedings were ini
tiated in relation to Jackson. I note that at trial the
plaintiff's submission was not fully developed or
argued. Since its determination is not essential for
disposition of this case I leave this issue
unresolved.
Section 8
Section 8 of the Charter provides that:
8. Everyone has the right to be secure against unreasonable
search or seizure.
The plaintiff submits that section 41.1 of the
Regulations provides for a search that is prohib
ited by section 8 because it authorizes a urine
specimen to be required of an inmate by a staff
member without reference to any standard or cir
cumstance except necessity as considered by the
staff member, and upon risk of punishment if
convicted at disciplinary proceedings for testing
positive or for failing to provide the required speci
men. A "compulsory" urinalysis testing procedure
of this sort is said to constitute a search within the
meaning of section 8 of the Charter. In the
absence of consent by an inmate it is submitted
that the taking of a urine sample would constitute
a search and seizure. The plaintiff relies by analo
gy upon cases concerning non-consensual blood
samples (R. v. Racette (1988), 48 D.L.R. (4th)
412 (Sask. C.A.); R. v. Katsigiorgis (1987), 62
O.R. (2d) 441 (C.A.); R. v. Dyment (1986), 57
Nfld. & P.E.I.R. 210 (P.E.I.C.A.)) and breath
samples (see: R. v. Enns (1987), 85 A.R. 7 (Prov.
Ct.)); and contra R. v. Holman (1982), 28 C.R.
(3d) 378 (B.C. Prov. Ct.).
In the amended statement of defence filed in
this action it is pleaded on behalf of the defendants
that "the requirement to give a urine sample does
not constitute a search within the meaning of
section 8 of the Charter, and in any event such a
requirement is not unreasonable". At trial little
argument was made about the regulation not pro
viding for a search, except that under the Regula
tions an inmate could decline to provide a sample,
and thus avoid any search or implications, of a
search. While that may be accurate in a technical
sense, such action exposes an inmate to discipli
nary proceedings and punishment upon conviction
for failure to provide a sample when ordered to do
so. In these circumstances it can hardly be said
that an inmate is free to refuse to provide a
sample. Indeed, should he do so he is then subject
to penalties similar to those that may apply in the
case of an inmate who tests positive for the pres
ence of unauthorized intoxicants in his body. Ulti
mately, the effect of refusing is to be treated as
though one has consumed unauthorized intoxi
cants, at least so far as punishment may be con
cerned. In these circumstances any suggestion that
the Regulations do not provide for a search seems
to me unwarranted.
Is the search as here authorized one that is
unreasonable within the meaning of that qualify
ing term as used in section 8 of the Charter? In R.
v. Collins, [1987] 1 S.C.R. 265, at page 278, Mr.
Justice Lamer, speaking for a majority of the
Court in regard to section 8, said:
A search will be reasonable if it is authorized by law, if the
law itself is reasonable and if the manner in which the search
was carried out is reasonable.
Matters raised in argument in Jackson's case con
cern all three aspects of these criteria of
reasonableness.
The defendants raised two considerations relat
ing to the manner in which the search provided for
by the Regulations would be carried out. They
submitted that no serious question was here raised
about the validity of the testing processes, first by
using the EMIT-ST test and later by use of that
test and the GC/MS test for confirming positive
test results. The defendants referred to American
jurisprudence upholding the technical validity of
these testing processes in relation to urinalysis
testing programs for prison inmates (see: Jensen v.
Lick, 589 F. Supp. 35 (Dist. Ct. 1984); Spence v.
Farrier, 807 F.2d 753 (8th Cir. 1986); Peranzo v.
Coughlin, 675 F. Supp. 102 (S.D.N.Y. 1987)) or
for employees of a federal agency (see: National
Treasury Employees Union v. Von Raab, 816 F.
2d 170 (5th Cir. 1987) upheld on appeal 103 L.Ed.
2d 685 (1989)). I conclude that the technical
testing processes here developed would not consti
tute an unreasonable manner of search violating
section 8 of the Charter if the regulations were
otherwise not unreasonable.
The defendants also submitted that little weight
should be given to the plaintiff's concern that, as
administered, the test was degrading, for in fact
the plaintiff had declined to provide a sample, and
could hardly complain of feeling degraded by pro
viding one. Moreover, it was submitted the
requirement was less intrusive of privacy than a
strip search implicitly authorized, with exceptions,
by the Weatherall decisions, cited below. (See also
McDonell v. Hunter, 809 F.2d. 1302 (8th Cir.
1987) upholding the validity of urinalysis testing
applied to employees of State department of Cor
rections at state prison institutions.) Urine sam
pling and testing was not a process unknown to
those who had been medically examined, for exam
ple, and was not generally considered intrusive.
Comparing the relative measure of intrusiveness,
in relation to privacy expectations, of strip
searches compared to providing urine samples on
order under direct surveillance of another does not,
in my view, assist greatly.
The process here to be followed in providing a
required specimen does interfere with privacy
expectations of an individual. The significance of
that is perhaps best assessed in considering the
reasonable nature of the law in question and not as
a separate matter relating to the manner in which
the law is applied. That is particularly the case
where, as here, the facts established do not really
put in issue the manner in which the search under
section 41.1 of the Regulations was carried out, for
Jackson declined to provide a sample and there
was no search.
In assessing whether the law here authorizing a
search was reasonable it is necessary first to deter
mine what constitutes the law that is in issue. The
plaintiff submits that section 41.1 of the Regula
tions must be considered apart from Commission
er's directives, institutional standing orders or
other policy memoranda or plans of the Correc
tional Service. Only the Act and Regulations are
said to have the force of law and these include no
standards or criteria for staff or inmates about the
application of section 41.1. It is said to be too
broadly drafted and to be open to abuse by staff
members who may act upon whim or mere suspi
cion without any reasonable ground for belief that
an inmate has consumed unauthorized intoxicants.
Moreover, when a urine sample is ordered to be
provided no explanation need be given to the
inmate and the order may be made, as it was by
Finucan in this case, by a staff member who has
had no recent direct contact with the inmate. For
the defendants it is urged that the whole of the
urinalysis program as originally planned and now
amplified by Commissioner's directives and insti
tutional standing orders is in issue here, implicitly
inviting construction of the general regulation in
light of the later directives and orders.
Each party, it seems, looks to possible extremes
in outcome if the regulation were to be held valid
or invalid. In my view, it is not the whole of the
planned program that is here in issue for the facts
as here pleaded and established by evidence relate
to one aspect of the program that was implement
ed. Here a staff member required a urine specimen
to be provided for testing because it was con
sidered necessary to detect the presence of an
intoxicant in the body of the plaintiff Jackson, a
presence which another staff member believed to
be the case. We are not here concerned with
random testing which was never implemented, or
with testing of one who had a known history of
involvement with drugs, or with one who was
involved at the relevant time with any contact
visiting or community activities. Nor is this a
situation where there is any evidence that the
required specimen was requested on a mere whim
or with any intent to abuse Jackson, aside from
Jackson's own suspicions about the motives of the
officers concerned. Thus the facts here pleaded
and established narrow the issue to those circum
stances clearly described within a narrow construc
tion of section 41.1 as it relates to the situation
where a staff member believed or suspected that
Jackson had consumed an intoxicant "other than
brew".
It seems clear from the decision of Mr. Justice
Strayer at trial in Weatherall v. Canada (Attorney
General), [1988] 1 F.C. 369 (T.D.) at pages 413-
414 and of Mr. Justice Stone for the Court of
Appeal when that same case was considered on
appeal (Weatherall v. Canada (Attorney General),
[1989] 1 F.C. 18 (C.A.), at pages 30-36) that
Commissioner's directives do not have the force of
law and could not qualify the words of the regula
tion there in question nor prescribe a limit within
section 1 of the Charter. The same reasoning,
derived from the decision of Pigeon J. for the
majority of the Supreme Court of Canada in
Martineau et al. v. Matsqui Institution Inmate
Disciplinary Board, [1978] 1 S.C.R. 118, at page
129, would be equally applicable to institutional
standing orders.
It may be that upon reflection the Supreme
Court or the Court of Appeal itself will qualify
this application of Martineau, which was primarily
concerned with the meaning to be given to section
28 of the Federal Court Act [R.S.C. 1970 (2nd
Supp.), c. 10] and not with review of issues arising
in relation to the Canadian Charter of Rights and
Freedoms. As I read Weatherall, supra, the Court
of Appeal was invited to adopt this approach but
declined to do so. Nevertheless, in the world of
government operations today a variety of initia
tives are taken as outlined by a variety of docu
ments and instruments purporting to be under
general statutes and regulations, as the Govern
ment of Canada's Regulatory Reform Program
itself implicitly acknowledges. There is much to be
said for a broad judicial conception of what consti
tutes law or legal action if the Charter of Rights is
to be given full scope in its application to govern
mental action. Until that is recognized the decision
of the Court of Appeal in Weatherall precludes
review of the question in the Trial Division of this
Court.
In the result, I conclude that section 41.1 of the
Regulations is to be read without modification or
qualification derived from the directives and
standing orders that here dealt with its application.
If one examines the text of section 41.1 the key
elements provide, in both official languages:
41.1 (1) Where a member considers the requirement of a
urine sample necessary to detect the presence of an intoxicant
in the body of an inmate, he may require that inmate to provide
... a sample ... to make a proper analysis of the inmate's urine
• • • •
The text of the regulations in both official lan
guages indicates a single standard or criterion or
circumstance for its application, where a staff
member "considers the requirement of a urine
sample necessary to detect the presence of an
intoxicant in the body of an inmate", or "un
membre [le] considere . . . necessaire pour deceler
la presence d'une substance hallucinogene dans
l'organisme d'un detenu", that is, a circumstance
of necessity as determined by a staff member. In
the case of paragraph 41(2)(c), considered in
Weatherall, supra, search was authorized where
(in the French text) "un membre [le] considere .
raisonnable et necessaire", or (in the English text)
"a member considers [it] reasonable". There the
two official texts appeared to differ but both refer
to considerations of reasonableness and the regula
tion was treated on that basis.
In this case the defendants urged that a stand
ard of "necessity" was higher than a standard of
"reasonable" action. Moreover, it was argued that
the question of necessity in any case could be
argued before a disciplinary tribunal, assuming
proceedings were initiated against an inmate for
testing positive or refusing to provide a specimen. I
am not persuaded to agree. Indeed "reasonable"
implies a reason related to the purpose of the
regulation, a rational connection between purpose
and action and, in my view it also implies a
qualification on the nature of the action taken,
that it be reasonable in the circumstances. These
are qualifications that, for me, require something
more than a conclusion that it is considered neces
sary to conduct a search. If the question of necessi
ty were raised in defence in disciplinary proceed
ings, the regulation contains no guidance for the
tribunal except reference to the belief of the staff
member.
I am prepared to accept as an implied term of
section 41.1 that a standard or qualification for its
application is that its application must be con
sistent with its purpose or purposes. The words of
Stone J.A. in Weatherall, (supra, [1989] 1 F.C.
18, at pages 42-43), in relation to the latter regu
lation, are equally applicable to section 41.1 here.
This is not to suggest that the authorities and staff should have
a completely freehand in these matters and so abuse their
powers. The authority contained in paragraph 41(2)(c) is lim
ited to situations where a member considers that the action is
"reasonable" either to detect contraband or to maintain the
good order of the institution. In my opinion, such searches must
always be bona fide. They cannot be used with the intent of
intimidating, humiliating or harassing inmates or of inflicting
punishment.
Aside from an implied term that the regulation
here be applied consistently with its purposes, I am
not prepared to imply other specific terms, or to
"read in" or "read down" section 41.1 to conform
with constitutional requirements. To do so would
be inconsistent with the approach approved by
Dickson J. [as he then was] in Hunter et al. v.
Southam Inc., [1984] 2 S.C.R. 145, at pages
168-169, and followed by Strayer J. in Weatherall,
supra, at page 397, and by others.
It is true that the decision of the Court of
Appeal in Weatherall qualified that of Mr. Justice
Strayer at trial, by limiting the order and reason
ing applied to paragraph 41(2)(c) to the facts
revealed by the case and the pleadings of the
parties. In effect the regulation was held to be
invalid only in so far as it provided for a skin
search of male inmates in the presence of a female
guard officer, not in a more general application.
Nevertheless, the decision of Strayer J. in relation
to the absence of criteria, standards or outline of
circumstances for application of the regulation
there in question is persuasive when considered in
relation to the application of section 41.1 here in
issue. It is persuasive in its drawing by analogy
from the reasoning of Dickson J., as he then was,
in Hunter et al. v. Southam Inc., supra, and of
Lamer J. in R. v. Collins, supra, and from some
leading American jurisprudence, that paragraph
41(2)(c) there in question, without any express
qualification or criteria other than the adjective
"reasonable" in the English version and "raison-
nable et necessaire" in the French text, did not
adequately provide standards that would ensure
that a search would be reasonable within section 8
of the Charter. Thus it was invalid. That invalidity
clearly underlies the decision of the Court of
Appeal, though it limited the application of that
decision to "cross-gender" strip searches of male
inmates.
What sort of criteria might have been included
in section 41.1? Is this a situation for prior approv
al by independent authority of the appropriateness
of requesting a specimen? Prior authorization in
circumstances where that is possible would appear
to be a requirement of a valid search (per Dickson
J. in Hunter et al. v. Southam Inc., supra, at page
161), at least in a situation of search of an office.
The same necessity, for prior authorization, was
not considered appropriate by Strayer J. in Wea-
therall in relation to strip searches intended to
detect contraband, for the evidence was clear that
contraband could be disposed of fairly readily even
in a prison setting if time were to be required for
prior authorization. An alternative suggested was
post search review by higher authority to minimize
possibilities of abuse (per Stone J.A., in Wea-
therall, supra, [1989] 1 F.C. 18, at page 43). In
Jackson's case, even though no provision was made
in the regulation itself for prior authorization, on
the evidence presented, prior authorization of the
required test was sought and obtained from a
senior officer, a procedure that may have been
designed to eliminate possibilities of abuse. That
process would also take account of facts estab
lished in evidence that trace elements of drugs for
which testing was done do not disappear from the
body until some hours or even days following
ingestion. Thus the pressures of time to acquire a
sample would seem to be less than in the case of
seeking to detect contraband carried by inmates.
Indeed, in the case of an inmate like Jackson,
whom it was decided should be tested for the
presence of drugs as a result of his conduct, or that
of others with whom he was considered to be
associated, procedures might well provide not only
for prior approval but also for an explanation of
the grounds upon which a required specimen is
contemplated and an opportunity to permit
response from the inmate affected before a deci
sion is finally made that a test is to be required.
Whether these requirements would be appropri
ate must ultimately be left to the Commissioner
and possibly the courts on a future occasion. They
would not seem too far reaching in dealing with
regulations to detect the presence of drugs in a
urine specimen, in circumstances where there is
reason to believe the inmate to be tested has
ingested intoxicants, assuming my understanding
of the technical aspects of testing is accurate.
Other criteria or standards or applicable circum
stances might be expressly included in regulations
to provide for random testing or testing of known
high risk groups, for the guidance of staff and
inmates. Perhaps, as suggested by Strayer J. in
Weatherall, some of the qualifications set out in
directives, standing orders or policy documents of
the Service might be included in regulations. As
enacted, without any express criteria, other than
considering it necessary, section 41.1 of the Regu
lations in my view does not meet the qualification
that the law providing for the search be reasonable
in order to meet the standards of section 8 of the
Charter.
I emphasize that this conclusion deals with sec
tion 41.1 as it relates to the facts here raised in
pleadings and in evidence where the required urine
specimen is ordered for analysis because the
inmate affected is considered to have ingested an
intoxicant. The situation was referred to during
the course of trial as one of reasonable cause. My
conclusion does not relate directly to the other
situations that would have been included in the
overall plan of the Correctional Service for urinal
ysis testing if that plan were implemented, i.e.,
random testing, testing of those with a history of
involvement with drugs, and testing of those
involved in community programs that provide sig
nificant contact opportunities with outsiders. None
of those aspects of the planned program are direct
ly before the Court in this case. They have been
discussed but only by implication in light of the
overall plans of the Service and its apparent deter
mination that those be undertaken entirely under
the authority of a reasonably brief, general regula
tion without standards, criteria or circumstances
spelled out in any detail, leaving the Service free to
vary or withdraw the program or aspects of it at
will. A decision in relation to the regulation enact
ed as far as it relates to situations of reasonable
cause to believe an inmate has ingested an intoxi
cant is not intended to reflect on the capacity of
the Service to accomplish all the goals of its
planned program. It does deal with the manner by
which that program is implemented under one or
more regulations properly drafted to include those
circumstances, criteria or standards applicable to
those goals which will provide some objective basis
for all concerned to know the basis on which
required specimens are to be ordered for
urinalysis.
In considering the regulation here, or any others
under which the Correctional Service might seek
to pursue the goals of its urinalysis program, one
must consider an assessment of the public interest
in being left alone by government, that is, privacy,
and the government's interest in intruding on
individual privacy in order to advance its legiti
mate goals. The expectations of privacy may vary
from one circumstance to another. They are less in
dealing with customs requirements on entry to a
country than in a home or an office (R. v. Sim-
mons, [1988] 2 S.C.R. 495) and even less in a
prison setting where surveillance is the order of the
day (Weatherall, supra, and see also Lanza v. New
York, 370 U.S. 139 (Ct. App. N.Y. 1962); Bell v.
Wolfish, 441 U.S. 520 (2nd Cir. 1979); Hudson v.
Palmer, 468 U.S. 517 (4th Cir. 1984)). In the
circumstances of prison life the public interest of
concern to government is the promotion of safety
and security within penal institutions for the ben
efit of staff and inmates.
American jurisprudence, here cited, illustrates
how mandatory urinalysis testing in another coun
try has generally been viewed. The state's interest
in promoting safety and security in penal institu
tions has generally been recognized as paramount
over the limited expectation of privacy of individu
als in the prison setting even with constitutional
guarantees against certain forms of search and
seizure, under the Fourth Amendment to the
United States Constitution, a provision somewhat
comparable to section 8 of the Charter in Canada,
though different in its historic background and
perceived purposes.
The appropriate balance between the public in
terest in safety and security in penal institutions
and the public interest in recognizing expectations
of privacy for inmates of institutions may differ in
relation to various purposes of urinalysis programs.
Thus constitutional requirements may differ where
the purpose is to obtain evidence in the case of an
inmate believed to have ingested intoxicants from
those applicable where the purpose is random test
ing, the screening of high risk groups or those with
significant community contacts.
For the defendants it was urged that in a given
case, such as this, there may well be judicial
deference for administrative decisions about the
appropriate balance, a factor recognized by Stone
J.A. in Weatherall, supra, ([1989] 1 F.C. 18, at
page 42). Yet that deference cannot preclude judi
cial assessment, when the issue is raised, of wheth
er the regulations under which the administrator
acts are consistent with the Canadian Charter of
Rights and Freedoms.
To reiterate, my conclusion in relation to issues
raised concerning section 8 of the Charter is that
section 41.1 of the Penitentiary Service Regula
tions, in so far as it provides for the requirement of
a urine specimen for analysis from an inmate who
is believed to have ingested an intoxicant, provides
for an unreasonable search. It is thus contrary to
section 8 of the Charter in this respect. This is
because the regulation itself contains no standards,
criteria, or circumstances relating to its applica
tion, for the guidance of staff or inmates, which
would ensure that application is not unreasonable
within the meaning of section 8.
Section 7
The plaintiff submits that a requirement that a
urine specimen be provided is unlawful because
section 41.1 of the Regulations violates section 7 of
the Charter and is not saved by section 1. That
conclusion was reached by Galipeau J. in Dion,
supra.
Section 7 of the Charter provides:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
Dion, supra, as noted earlier, deals with the
same section of the Regulations as is questioned
again in this case. In two other Canadian cases,
the admission of evidence in criminal prosecutions
from urine sample tests was in issue and in both
the evidence was held admissible because the
taking of the urine sample was held not to be
unreasonable. In both cases it was taken from
hospital vessels after collection from the accused.
It was taken with consent of the accused in R. v.
Katsigiorgis (1987), 62 O.R. (2d) 441 (C.A.), and
without consent but after urine had been voided as
a result of medical procedures in R. v. L.A.R.
(1985), 17 D.L.R. (4th) 268 (Man. C.A.). Neither
of those cases directly assists resolution of the
issues here.
In Dion, Galipeau J. dealt with argument relat
ed to sections 7 and 1 of the Charter. As I read his
decision (as translated, 30 C.C.C. (3d) 108) the
following are key elements in his conclusions.
1. The mandatory urine testing program pro
vided by section 41.1 restricted the constitution
al rights of inmates to liberty and to security of
the person. (See: 30 C.C.C. (3d), at pages 115,
116, 118)
2. Considering the purposes of the regulations
there would appear to be opportunity for legisla
tive intervention consistent with principles of
fundamental justice (30 C.C.C. (3d), at pages
118-119).
3. In the case of section 41.1 the restrictions
upon liberty and security were not in accord
with principles of fundamental justice for the
regulation gave penitentiary officers arbitrary
powers, without appropriate limitations or cri
teria, to require the provision of a sample for
testing. Any inmate, whether or not he had ever
taken intoxicants and whether or not he present
ed any danger of committing discipline breaches
or acts linked to the absorption of intoxicants,
could be required to provide a specimen for
testing without any criteria for when or whether
the requirement could be properly imposed;
inmates would have no protection from potential
abuse by arbitrary exercise of authority under
the regulation (30 C.C.C. (3d), at
pages 119-120).
4. The deprivation under the regulation was not
a reasonable limit that could be justified in a
free and democratic society within section 1 of
the Charter (30 C.C.C. (3d), at page 125).
With respect I do not share one of the primary
assumptions of Galipeau J., (at 30 C.C.C. (3d),
pages 115-116) that is that a citizen, even a pris
oner, has the right to moderately intoxicate him
self and to deny this, subject to an obligation to
provide a urine sample to detect the presence of an
intoxicant in the body of an inmate at risk of
punishment for failing to do so, limits fundamental
rights to liberty and security of the person. While
that may apply outside prison institutions, the
regime within those institutions is very different.
Inside, surveillance and denial of ordinary liberties
is the order of the day, privacy is limited and not
much is expected, and inmates may possess and
may consume only what is authorized or provided
and anything else in their possession is considered
contraband, subject to forfeiture when found.
The plaintiff here urges that the decision in
Dion be respected and followed and further, aside
from that decision, section 41.1 when measured by
the tests now developed for considering claims in
relation to section 7 of the Charter is in breach of
that provision.
The defendants urge that the decision of Gali-
peau J. in Dion not be followed, that it should now
be read in light of the decision of the Court of
Appeal in Weatherall, supra, and of the Supreme
Court of Canada in R. v. Beare, [1988] 2 S.C.R.
387. Further, it is urged the regulation here does
not deprive an inmate of rights to liberty or secu
rity of the person in a manner contrary to the
principles of fundamental justice, but even if it
should be found to do so any limitation on rights of
the inmate is consistent with the application of
section 1 of the Charter, as a reasonable limit
"demonstrably justified in a free and democratic
society".
To resolve these differences I propose to consid
er the implications of later cases for Dion and to
assess section 41.1 of the regulations in light of the
process now well established by decisions of the
Supreme Court for considering claims relating to
section 7 of the Charter. See generally, Singh et
al. v. Minister of Employment and Immigration,
[1985] 1 S.C.R. 177; Operation Dismantle Inc. et
al. v. The Queen et al., [1985] 1 S.C.R. 441; Re
B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R.
v. Beare, [1988] 2 S.C.R. 387; R. v. Morgantaler,
[1988] 1 S.C.R. 30.
I first deal with the defendants' suggestion that
decisions in Weatherall and Beare, supra, affect
the decision in Dion. In Weatherall at trial Strayer
J. held that section 7 of the Charter had no
application to the issues before him which he held
related clearly to section 8. The defendants submit
a similar distinction might be drawn here. That
submission I decline to accept because the circum
stances here differ. Here there was no actual
search of Jackson because he declined to provide a
urine specimen. Instead, he was subject to discipli
nary proceedings, with the possibility of serious
penalties as though the search had proceeded and
his urine specimen had tested positive for the
presence of an intoxicant. It is true those proceed
ings were for failure to obey the order to provide a
specimen, but those proceedings were a direct
consequence of the requirement of a search. Disci
plinary proceedings affect the liberty of the plain
tiff, a right to which he is assured, with some
qualifications, under section 7. Because of the
direct link between disciplinary proceedings for
failure to obey an order to provide a specimen, i.e.
to permit a search, it seems to me appropriate in
this case to consider section 41.1 in relation to
section 7, as well as section 8, of the Charter.
On behalf of the defendants counsel also sub
mitted that the decision of the Court of Appeal in
Weatherall had additional implications for the
decision in Dion. The Court of Appeal, it is said,
upheld the validity of paragraph 41(2)(c) there in
question except in so far as it provided for "cross
gender" strip searches of male inmates. It is true
that the Court of Appeal limited the declaration of
Strayer J. to the facts there pleaded and proved at
trial. The basis of the decision at trial in Wea-
therall was Strayer J.'s finding that the regulation
violated section 8 of the Charter because it includ
ed no standards or criteria to which it was to be
applied. This reasoning surely underlies the deci
sion of the Court of Appeal limiting the decision to
the facts and pleadings in the case but which did
not differ from the basic reasoning of Strayer J. I
do not agree that the decision of the Court of
Appeal in Weatherall significantly modifies the
effect of the decision in Dion.
In R. v. Beare, supra, the Supreme Court unani
mously upheld subsections 453.3(3) and 455.5(5)
of the Criminal Code and the Identification of
Criminals Act, R.S.C. 1970, c. I-1, which provided
for the mandatory taking of fingerprints of a
person arrested and charged, but not yet convicted,
of certain criminal offences. Mr. Justice La Forest
for the Court, acknowledged that the provisions
detracted in a comparatively minor way from the
security of persons affected, and he noted the
importance of a variety of purposes served by the
legislation. He found that any deprivation of secu
rity was in accord with principles of fundamental
justice ([1988] 2 S.C.R. 387, at page 413). R. v.
Beare, of course, deals with a situation different in
an important respect from that facing Jackson.
There the persons required to be fingerprinted
were not only believed to have committed a crime,
but were actually charged with offences though
not yet convicted, while here Jackson was not
charged with any offence at the time the require
ment of a urine specimen was ordered.
I have earlier pointed to my different view of the
background of the prison setting from that
assumed by Galipeau J. in his decision. For differ
ent reasons, however, I do share his view that the
regulation here, coupled with the practice estab
lished by standing orders for disciplinary action for
failure to provide a specimen when ordered to do
so, does constitute a deprivation of fundamental
rights of inmates to liberty and security of the
person. Further, I agree with Galipeau J. that the
deprivation here is not in accord with principles of
fundamental justice.
In R. v. Morgentaler, supra, Dickson C.J., dis
cussing claims in relation to section 7 said (at
page 56):
The case law leads me to the conclusion that state interfer
ence with bodily integrity and serious state-imposed psychologi
cal stress, at least in the criminal law context, constitute a
breach of security of the person. It is not necessary in this case
to determine whether the right extends further, to protect either
interests central to personal autonomy, such as a right to
privacy, or interests unrelated to criminal justice.
To require an inmate to provide a specimen of
urine for purposes of testing for trace elements of
intoxicants, as section 41.1 provides, is in my view,
an interference with bodily integrity. Urinalysis
may reveal health or other conditions beyond the
indications sought for traces of unauthorized
intoxicants. In many cases requiring a specimen
for testing aside from health reasons might lead to
a measure of psychological stress, particularly
where, as here, the procedure for collecting the
sample involves direct observation by another. The
requirement deprives the inmate concerned of
security of his or her person. To require this or risk
punishment for failure to comply with an order, as
practice under standing orders for disciplinary pro
ceedings here provides, is also an interference with
the liberty of the person.
While there is but a limited privacy and protec
tion of bodily integrity and expectation of those in
the prison setting, what remains, including free
dom from state examination of bodily wastes with
out consent, ought not to be taken away except in
accord with principles of fundamental justice.
Here the absence of criteria for requiring a speci
men, while that may not lead to abuse by reason
able staff members, provides no standards for
determining when abuse arises, it is not tied to
reasonable and probable cause even where that is
the basis on which the requirement is ordered, or
to any other standard or circumstance that would
reasonably support the requirement in light of its
explained purposes. No provision is made for
advising the inmate why the specimen is required,
or for the inmate, in circumstances such as those
relied upon here where a staff member believes or
suspects the inmate has consumed an intoxicant, to
explain his conduct or action before a decision is
finally made to require the specimen.
Without reference to any objective criteria, sec
tion 41.1 does not permit officers or inmates to
know the circumstances in which a urine sample
may be required. I conclude that section 41.1 of
the Regulations, in so far as it authorizes a
requirement for an inmate to provide a urine
specimen where it is believed the inmate has ing
ested an intoxicant, contravenes section 7 of the
Charter. This is because the restrictions on rights
to liberty and security of the person are not, in the
absence of standards or criteria or applicable cir
cumstance, in accordance with the principles of
fundamental justice.
Section 1
The next issue relating to the Charter concerns
the application of section 1. At trial the defendants
submitted that if the Court were to find that the
plaintiff's rights under section 8 or section 7 had
been restricted contrary to the Charter, then any
restriction was valid in the circumstances revealed
in this case as a reasonable limit prescribed by law
demonstrably justified in a free and democratic
society, as section 1 provides. As is now well
established the onus of establishing that is on the
defendants.
While conceding that the relationship between
section 8 and section 1 of the Charter has not been
authoritatively determined, the defendants submit
that application of section 1 may, in appropriate
cases, support restrictions on rights under sections
8 and 7 that would otherwise be unconstitutional.
In Hunter et al. v. Southam Inc., supra, Mr.
Justice Dickson, as he was then, speaking for the
Supreme Court ([1984] 2 S.C.R. 145, at page
169) left open the question of the relationship
between sections 8 and 1 since it had not there
been argued. In R. v. Simmons, supra, Dickson
C.J., for the majority, found a violation of section
8 arising, not from the terms of the customs law
there in issue, but from the manner in which a
search had been carried out by action of the
customs officers concerned. That sort of infringe
ment of section 8 could not be saved by application
of section 1 which relates only to those situations
where the limitation on rights declared is one
"prescribed by law".
In R. v. Noble (1984), 48 O.R. (2d) 643 (C.A.),
Martin J.A., for the Court concluded that provi
sions of the Narcotic Control Act [R.S.C. 1970, c.
N-1] and of the Food and Drugs Act [R.S.C.
1970, c. F-27] authorizing the search of a dwelling
under a writ of assistance violated section 8 of the
Charter. Turning then to the question of section 1
of the Charter, which was not argued as a basis for
justifying a search in that case, he said, by way of
obiter (at pages 667-668):
... since I have already held that the provisions of s. 10(1)(a)
of the Narcotic Control Act and s. 37(1)(a) of the Food and
Drugs Act are unreasonable and contravene s. 8 in so far as
they authorize the search of a dwelling under a writ of assist
ance, I would have great difficulty in concluding that the
legislation is justifiable under s. 1 as a reasonable limit pre
scribed by law that can be demonstrably justified in a free and
democratic society.
A similar difficulty in principle of reconciling
those laws held to be unconstitutional under sec
tion 7 because they violate principles of fundamen
tal justice with a conclusion that the laws might be
justifiable as reasonable under section 1, has been
identified by Madame Justice Wilson, speaking for
herself in Re B.C. Motor Vehicle Act, [1985] 2
S.C.R. 486, at page 523. She said:
Section 7 does not, however, affirm a right to the principles
of fundamental justice per se. There must first be found an
impairment of the right to life, liberty or security of the person.
It must then be determined whether that impairment has been
effected in accordance with the principles of fundamental
justice. If it has, it passes the threshold test in s. 7 itself but the
Court must go on to consider whether it can be sustained under
s. 1 as a limit prescribed by law on the s. 7 right which is both
reasonable and justified in a free and democratic society. If,
however, the limit on the s. 7 right has been effected through a
violation of the principles of fundamental justice, the enquiry,
in my view, ends there and the limit cannot be sustained under
s. 1. I say this because I do not believe that a limit on the s. 7
right which has been imposed in violation of the principles of
fundamental justice can be either "reasonable" or "demonst-
rably justified in a free and democratic society".
The difficulties of reconciling principles referred
to by Martin J.A. in R. v. Noble, supra, and by
Wilson J. in the Re B.C. Motor Vehicle Act case,
supra, are presented for resolution in this case
when one considers the possible application of
section 1 as outlined in R. v. Oakes, [1986] 1
S.C.R. 103, per Dickson, C.J. at pages 138-139,
and other cases. In applying section 1, two central
criteria are essential if a limitation on Charter
rights is to be held reasonable and demonstrably
justified in a free and democratic society. First, the
objective to be served by the limitation must be
sufficiently important that it warrants overriding a
constitutionally protected right or freedom, indeed
the objective must relate to societal concerns that
are pressing and substantial in a free and demo
cratic society. Second, the party invoking section 1
must show the means adopted to be reasonable and
demonstrably justified, a proportionality test that
requires a balancing of the interests of society with
those of individuals and groups. The proportional
ity test has three components. The measures
adopted must be carefully designed to achieve the
objective in question, and rationally connected to
the objective. They must impair the right or free
dom as little as possible. There must be a propor
tionality between the effects of the measures and
the objective.
In seeking to assess section 41.1 in light of
section 1 of the Charter it is well to recall that it is
the text of that regulation itself which constitutes
the law, and the limitation on rights and freedoms
provided by sections 8 and 7 of the Charter. We
have earlier referred to the purposes or objectives
of this regulation as identified by evidence at trial
from the testimony of Harvey and documents
introduced through his examination.
I find that the evidence clearly indicates that
unauthorized intoxicants in the prison setting
create very serious problems including a greater
risk and level of violence that affects the safety
and security of prison institutions for both staff
and inmates. I am prepared to accept on the
evidence before me that this presents societal con
cerns that are pressing and substantial in a free
and democratic society. I am prepared to accept as
well that among the purposes or objectives to be
served by section 41.1 as enacted was to control
and ultimately reduce these concerns and to
improve safety and security within the institutions.
I do point out that the purposes of the regulation
do not appear, and are not referred to by incor
porating words, in the text of the regulation itself.
Counsel for the plaintiff, while prepared to
accept that the ultimate objective of the regulation
was important, i.e. controlling drugs to improve
safety and security within institutions, also sug
gested that it might not be more pressing and
substantial within institutions than it was in socie
ty as a whole. If it were necessary to assess that
suggestion I would be prepared to accept, for
purposes of determining the applicability of section
1 in this case, that the objective is more pressing
within the prison setting because by its nature the
population of inmates includes a very high propor
tion of persons who have demonstrated tendencies
to violence, a special circumstance that may war
rant different programs, not merely incarceration
and surveillance, than would be introduced for the
population at large outside the prison system.
For the record I also note that evidence in this
case supports the conclusion that measures similar
to those planned for the Correctional Service to
deter and detect unauthorized consumption of
drugs and intoxicants are not unusual in other free
and democratic societies. The evidence of wit
nesses Willette and Davis provide both a general
background about compulsory urinalysis testing in
prison institutions in the United States, and specif
ic information including satisfactory results about
the programs in place for more than a decade in
federal penal institutions in the United States.
Counsel for the defendants also submitted pub
lished information surveying the status of compul
sory urinalysis testing programs in state prison
systems in the United States, evidence which I
accept, not necessarily as proof of its detailed
references but as evidence of general practice in a
range of states which, like the federal country they
comprise, constitute free and democratic societies.
That general practice is also shown through
reference to judicial precedents upholding compul
sory urinalysis testing as not inconsistent with the
Fourth Amendment, not only in the prison setting
for inmates (see: Jensen v. Lick, Spence v. Farrier,
Peranzo v. Coughlin, supra) but also for
employees of prison systems (McDonell v. Hunter,
supra), customs employees (National Treasury
Employees Union v. Von Raab, 816 F.2d 170 (5th
Cir. 1987), upheld in part (1989) Ct. No. 86-1879
(U.S.S.C.)), railway operating employees (Skinner
v. Railway Labor Executives' Assn., 103 L.Ed 2d
639 (1989)), staff of the F.B.I. (Mack v. U.S.,
F.B.I., 653 F.Supp. 70 (S.D.N.Y. 1986); appeal
dismissed 814 F.2d 120 (2nd Cir. 1987)) and for
jockeys and others engaged in state controlled
horse racing (Shoemaker v. Handel, 795 F.2d.
1136 (3rd Cir. 1986)).
In my view the first of the requirements of
section 1 of the Charter are met by section 41.1,
that is, that the objectives of the section, its pur
poses as adduced in evidence, relate to societal
concerns that are pressing and substantial in a free
and democratic society. Those objectives may war
rant overriding constitutionally protected rights or
freedoms by appropriate means.
When we come to consider the means here
adopted we are in difficulty in light of section 1 of
the Charter. The proportionality test is not here
readily met. The defendants submit that the means
here selected in a general sense, compulsory uri
nalysis testing, are appropriate, that they are less
intrusive and more effective than other means that
might have been adopted, such as blood tests. It is
argued that other means, through searching, are
demonstrably not effective, and that urinalysis is
less intrusive but much more effective than strip
searching. The success experienced through urinal
ysis testing programs in United States prisons, in
achieving the goals which the Correctional Service
here seeks, is a matter of record. Finally, it is
submitted that the standard or criterion included
in section 41.1, that is a standard of necessity, is a
"reasonable" standard within the meaning of sec
tion 1 of the Charter.
For the plaintiff counsel submits that the
absence of any limitation in the regulation on what
is in effect an absolute discretionary power of a
correctional officer is not a reasonable limitation
within section 1. The regulation is said to be too
vague and indefinite to permit assessment in rela
tion to section 1, essentially I assume because it is
implied that one cannot assess its proportionality
to the objective of the regulation. Absent any
standard or criteria or circumstance in the regula
tion for its application, it is open to arbitrary
application and thus cannot qualify as reasonable.
Two cases, each dealing with section 1 and
limitations of freedom of expression under para
graph 2(b) of the Charter were referred to by
counsel for the plaintiff. In Re Ontario Film &
Video Appreciation Society and Ontario Board of
Censors (1984), 45 O.R. (2d) 80 the Ontario
Court of Appeal, per MacKinnon A.C.J.O., dis
missing an appeal from the Divisional Court,
endorsed the record, in part in these terms (at
page 82):
The subsection allows for the complete denial or prohibition of
the freedom of expression in this particular area and sets no
limits on the Ontario Board of Censors. It clearly sets no limit,
reasonable or otherwise, on which an argument can be mounted
that it falls within the saving words of s. 1 of the Charter:
"subject only to such reasonable limits prescribed by law".
In Luscher v. Deputy Minister, Revenue
Canada, Customs and Excise, [1985] 1 F.C. 85
(C.A.), at pages 89-90, Hugessen J.A., referring to
section 1 of the Charter, said:
In my opinion, one of the first characteristics of a reasonable
limit prescribed by law is that it should be expressed in terms
sufficiently clear to permit a determination of where and what
the limit is. A limit which is vague, ambiguous, uncertain, or
subject to discretionary determination is, by that fact alone, an
unreasonable limit. If a citizen cannot know with tolerable
certainty the extent to which the exercise of a guaranteed
freedom may be restrained, he is likely to be deterred from
conduct which is, in fact, lawful and not prohibited. Uncertain
ty and vagueness are constitutional vices when they are used to
restrain constitutionally protected rights and freedoms. While
there can never be absolute certainty, a limitation of a guaran
teed right must be such as to allow a very high degree of
predictability of the legal consequences.
While these two cases, Re Ontario Film and
Video and Luscher deal with another Charter right
than is involved in this case, I find the principle
underlying the reasoning of MacKinnon A.C.J.O.,
and Hugessen J.A. to be persuasive.
In this case I have already concluded that sec
tion 41.1 provides for an unreasonable search and
is in conflict with section 8 of the Charter because
it does not include any standards, criteria or cir
cumstances for its application. I conclude, essen
tially for the same reason, the lack of standards or
criteria limiting the authority to search, that sec
tion 41.1 is not a reasonable limitation within
section 1.
Having concluded that section 41.1 derogates
from the rights to liberty and security of the
person contrary to section 7 in a manner not in
accord with the principles of fundamental justice
because the regulation includes no standards or
criteria for its application, I also conclude, for
essentially the same reason, that it cannot be a
reasonable limitation prescribed by law within sec
tion 1 of the Charter.
In sum it is my conclusion that section 1 does
not avail to provide support for section 41.1.
Section 15
The final issue relating to the Charter concerns
the application of subsection 15(1) of the Charter,
said by the plaintiff to be violated by section 41.1
of the Regulations. This section provides:
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
The amended statement of claim, with the
change approved at the commencement of trial
includes the allegation that "the plaintiff is within
a class of persons namely prison inmates being the
only class of persons in Canada required by law to
submit urine samples or face penal consequences
for failing to do so".
No evidence was tendered at trial to support a
finding of fact that prison inmates are the only
class of persons in Canada required to provide
specimens or face consequences as alleged in the
statement of claim. Even if that factual basis were
assumed I am not persuaded that section 41.1 of
the Regulations violates subsection 15(1) of the
Charter.
In Andrews v. Law Society of British Columbia,
[1989] 1 S.C.R. 143, the interpretation of subsec
tion 15(1) of the Charter and the approach to
dealing with alleged violations of that provision
were discussed. Mr. Justice McIntyre, with whom
the majority agreed on the manner of construing
subsection 15(1), referred to "discrimination" in
the following terms (at pages 174-175):
I would say then that discrimination may be described as a
distinction, whether intentional or not but based on grounds
relating to personal characteristics of the individual or group,
which has the effect of imposing burdens, obligations, or disad
vantages on such individual or group not imposed upon others,
or which withholds or limits access to opportunities, benefits,
and advantages available to other members of society. Distinc
tions based on personal characteristics attributed to an
individual solely on the basis of association with a group will
rarely escape the charge of discrimination, while those based on
an individual's merits and capacities will rarely be so classed.
Then in discussing the approach to alleged viola
tions of subsection 15(1) he said (at page 182):
... in assessing whether a complainant's rights have been
infringed under s. 15(1), it is not enough to focus only on the
alleged ground of discrimination and decide whether or not it is
an enumerated or analogous ground. The effect of the
impugned distinction or classification on the complainant must
be considered. Once it is accepted that not all distinctions and
differentiations created by law are discriminatory, then a role
must be assigned to s. 15(1) which goes beyond the mere
recognition of a legal distinction. A complainant under s. 15(1)
must show not only that he or she is not receiving equal
treatment before and under the law or that the law has a
differential impact on him or her in the protection or benefit
accorded by law but, in addition, must show that the legislative
impact of the law is discriminatory.
Where discrimination is found a breach of s. 15(1) has
occurred and—where s. 15(2) is not applicable—any justifica
tion, any consideration of the reasonableness of the enactment;
indeed, any consideration of factors which could justify the
discrimination and support the constitutionality of the
impugned enactment would take place under s. 1.
In this case section 41.1 of the Regulations does
provide for treatment of prison inmates on a basis
different from that of most, if not all, other
individuals in Canada and thus may be said to
derogate from their right to equality before the
law. Yet I am not persuaded that this difference or
derogation is discriminatory in the sense provided
for in subsection 15(1). It does not seem to me to
be related to any of the enumerated and prohibited
grounds, or analogous grounds, which concern per
sonal characteristics. The difference in treatment
here for prison inmates as a group, arises not from
personal characteristics but from past courses of
conduct amounting to criminal activities against
society.
I accept the submission of the defendants that
differences of this sort are not prohibited by sub
section 15(1) of the Charter. There is not, in my
view, need for the defendants to establish that the
difference in treatment of prison inmates is a
reasonable limitation under section 1 of the
Charter.
Conclusion
Throughout the trial in this matter counsel for
the defendants expressed concern about the signifi
cance of any decision in this case for the important
program initiated, and not yet fully developed, by
the Correctional Service.
Let me reiterate that the whole of that program
was not under review in this case. Here, in light of
the pleadings and the facts established, what was
in issue was the validity of section 41.1, the au
thority for the order said to be lawful for which
Jackson was subject to disciplinary proceedings for
failing to comply, in circumstances where the
order was made because Jackson was believed to
be under the influence of an intoxicant.
My decision is that section 41.1 of the Peniten
tiary Service Regulations in so far as it deals with
a circumstance of requiring a urine specimen from
an inmate who is believed to have ingested an
intoxicant is null and of no effect, as contrary to
section 8 and section 7 of the Canadian Charter of
Rights and Freedoms and it is not saved by section
1 of that Charter.
Judgment and a declaration to this effect,
sought as part of the relief claimed by the plaintiff
will be entered.
The plaintiff is also entitled to a declaration, as
claimed, that the order of conviction made by the
defendant Disciplinary Tribunal at Joyceville Pen
itentiary per Donald Schlichter, Independant
Chairperson, in this case is unlawful and of no
force and effect.
Finally, the plaintiff will have his costs, as
claimed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.