A-537-87
Her Majesty the Queen (Appellant) (Defendant)
v.
Philip Conway (Respondent) (Plaintiff)
INDEXED AS: WEATHERALL V. CANADA (ATTORNEY GENERAL)
(CA.)
Court of Appeal, Heald, Marceau and Desjardins
JJ.A.—Ottawa, May 1, 2 and July 13, 1990.
Penitentiaries — Unannounced presence of female guards in
male inmates' living areas ("winds") and frisk searches of
male inmates by female guards in penitentiary not contrary to
Charter, ss. 7, 8 or 15 — Reasonableness of search under s. 8
determined by balancing public interest in providing equal
opportunities for women and enhancing quality of life in
prisons against individual's loss of privacy — Whether mere
viewing or surveillance constituting search.
Constitutional law — Charter of Rights — Criminal process
— Penitentiaries — Appeal from trial judgment holding
unannounced presence of female guards in male inmates' living
areas during daytime in non-emergency situations violation of
Charter, s. 8 as unreasonable searches — Appeal allowed —
Public interest in prison security, equal opportunities for
women, and enhancing quality of life in prisons outweighing
individual's loss of privacy — Trial Judge correctly holding
frisk searches of male inmates by female guards not breaching
Charter, s. 8 as trivial intrusion of privacy.
Constitutional law — Charter of Rights — Equality rights
— Alleged inequality of treatment between male and female
inmates as only males subjected to cross-gender frisk searches
and surveillance — Not created by law, but by hiring policy —
Not so prdjudicial as to amount to discrimination — Con
forming to societal differences between sexes — Charter, s.
15(2) only validating inequality inherent in affirmative action
program itself.
Constitutional law — Charter of Rights — Life, liberty and
security — Charter, s. 7 not applicable to frisk searches and
presence of female guards in male inmates' living areas in
penitentiaries.
This was an appeal from the Trial Judge's declaration that at
Collins Bay Penitentiary it is unlawful, except in emergencies,
for female guards to view male inmates in their cells without
their express or implied consent where such viewing is neither
previously scheduled nor announced. The respondent, an
inmate at Collins Bay, did not complain about a specific
incident, but about the general practices of frisk searching male
inmates by female guards and the presence of female guards in
the male inmates' living areas in non-emergency situations.
Frisk searches are conducted routinely at certain points
throughout the institution. The respondent contended that they
were unreasonable simply because they were cross-gender.
Guards enter the inmates' living areas for regular prisoner
counts four times a day, for surveillance patrols (termed
"winds") once per hour but at irregular times so as to maintain
an element of surprise, and to escort prisoners elsewhere. The
respondent complained that sometimes female guards saw male
inmates undressed or performing such personal functions as
using the toilet. The Trial Judge found that there were conflicts
between inmates' right to privacy and the right of women to
equal opportunities for employment in the federal prison
system. He rejected the application of Charter, section 7, a
more general section in view of the specificity of section 8,
which protects against unreasonable search and seizure. He
held that the activities complained of—the mandatory exami
nation by public officers of premises, persons and activities for
law enforcement purposes—qualified as a "search". In deter
mining whether such searches were unreasonable, he held that
reasonability in execution included respect for normal stand
ards of public decency to the extent that the constraints implicit
in the situation reasonably permit. His view was that reason
able alternatives could be developed regarding the unscheduled
visits. He concluded that, except in periods of emergencies, the
day "winds" caused an unnecessary invasion of the privacy of
male inmates (at night, prisoners could ensure that they were
not indecently exposed). Routine frisk searches were found to
constitute only trivial intrusions of privacy, and if more than
trivial, the limited nature of the intrusion was offset by the
public interest. As to the allegation of inequality of treatment
because only men are subjected to cross-gender frisks and
surveillance, the Trial Judge referred to the affirmative action
program and to subsection 15(2). The inequality resulting from
the absence of an affirmative action program for male
employees in the federal women's prison was also protected by
subsection 15(2).
Held, the appeal should be allowed.
Per Desjardins J.A. (Heald J.A. concurring): The guarantee
of security from unreasonable search and seizure under Chart
er, section 8 only protects a reasonable expectation. An assess
ment had to be made as to whether the public's interest in
being left alone by government has to give way to the govern
ment's interest in intruding on the individual's privacy in order
to advance its goals, notably law enforcement. The Trial Judge
was required to determine what a reasonable person would
consider reasonable in the circumstances. While being viewed
from the waist up at the time ablution facilities are used
offends public decency and the privacy of the inmates to a
certain extent, whether the guards are male or female, surveil
lance patrolling by means of counts or "winds" are necessary to
maintain order and verify that prisoners are still alive. The
Trial Judge's differentiation between day and nighttime cross-
gender "winds" was not justified. Inmates may not necessarily
be able to prevent being observed in embarrassing situations at
night and announcing the "winds" would render them useless.
The "vestibuling" of female guards while male guards patrol
would create two classes of guards. The presence of female
guards serves the public interest by allowing women access to
jobs previously denied to them, and enhances the quality of life
in the prisons and the rehabilitation of the inmates. Any
reduction of the responsibilities of female guards might be more
detrimental to the prison system than the intrusion of privacy
complained of by the respondent. On balance, the goals pursued
by the state override the concerns of the respondent. No breach
of section 8 is committed when day "winds" are conducted by
female guards. The presence, at all times, of female guards, in
discharging their professional duties, in the living areas at the
penitentiary is not unreasonable.
The Trial Judge was correct in not applying section 7 of the
Charter. Frisk searches of male prisoners by female guards do
not constitute a breach of the rights guaranteed by sections 7, 8
or 15.
Per Marceau J.A. (concurring in the result): A mere viewing
or surveillance in plain view cannot constitute a search within
the meaning of Charter section 8. Even if it were a search, the
characteristics of the individual doing the viewing or surveil
lance, i.e. his or her sex, civil status, colour, social condition or
age do not affect the "manner" in which the search is carried
out, and therefore cannot make an otherwise reasonable search
unreasonable. Finally, a person convicted of a crime punishable
by confinement in a penitentiary, is not entitled to a reasonable
expectation that the surveillance to which he will be subjected
will be carried out by someone with characteristics acceptable
to him. Once it is established that in a prison setting surveil
lance is necessary, the presence of professional female officers
should have no further effect under section 8 than the presence
of a female nurse in a hospital.
The Trial Judge confirmed the reasonableness of the frisk
search under section 8 and the exceptional validation of any
inequality under section 15 by considering the affirmative
action program aimed at opening employment opportunities to
women. That was an extraneous consideration to the balancing
of the individual's reasonable expectation of privacy and the
government's interest in intruding on the individual's privacy in
order to advance its goals. It was not linked to the search itself.
Subsection 15(2) is there to validate only the inequality inher
ent in an affirmative action program itself.
If the Charter extended its protection to interference with
personal feelings, it would only be through the concept of
security of the person under section 7. The affirmative action
program would then be considered under the fundamental
justice requirement and the possible ill effect on the personal
feelings of a few would easily be outbalanced by the other
conflicting considerations of public interest, namely the promo
tion of employment equity and the enhancement of psychologi
cal conditions in the prison.
Section 15 does not apply merely because male inmates are
subject to "cross-gender" frisk searches and surveillance and
female inmates are not. This "inequality" is created by a hiring
policy and a special directive and not by law. It does not
prejudice men in a way significant enough to speak of discrimi
nation, and is in keeping with societal differences between men
and women.
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. 7, 8, 15, 24(2), 28.
Penitentiary Service Regulations, C.R.C., c. 1251.
CASES JUDICIALLY CONSIDERED
APPLIED:
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; 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.R. (3d) 193; 28 C.R.R. 122; 74 N.R. 27.
REVERSED:
Weatherall v. Canada (Attorney General), [1988] 1 F.C.
369; (1987), 59 C.R. (3d) 247; 11 F.T.R. 279 (T.D.).
CONSIDERED:
Solosky v. The Queen, [1980] 1 S.C.R. 821; (1979), 105
D.L.R. (3d) 745; 50 C.C.C. (2d) 495; 16 C.R. (3d) 294;
30 N.R. 380; R. v. John (1986), 28 C.C.C. (3d) 200; 24
C.R.R. 105; 40 M.V.R. 191 (B.C.C.A.).
REFERRED TO:
R. v. Institutional Head of Beaver Creek Correctional
Camp, Ex p. MacCaud, [1969] 1 O.R. 373; (1969), 2
D.L.R. (3d) 545; [1969] I C.C.C. 371; 5 C.R.N.S. 317
(C.A.); R. v. Anderson (1984), 45 O.R. (2d) 225; 7
D.L.R. (4th) 306; 10 C.C.C. (3d) 417; 39 C.R. (3d) 193;
2 O.A.C. 258 (C.A.); R. v. Hebb (1985), 66 N.S.R. (2d)
91; 152 A.P.R. 91; 17 C.C.C. (3d) 545; 33 M.V.R. 174
(C.A.); 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; Weatherall v. Canada (Attorney General), [1989] I
F.C. 18; (1988), 65 C.R. (3d) 27; 19 F.T.R. 160; 86 N.R.
168 (C.A.).
AUTHORS CITED
Canada. House of Commons. Standing Committee on
Justice and Legal Affairs. Sub-Committee on the Peni
tentiary System in Canada. Report to Parliament.
Ottawa: Minister of Supply and Services Canada,
1977.
COUNSEL:
Brian J. Saunders for appellant (defendant).
Fergus O'Connor and Donald Bailey for
respondent (plaintiff).
SOLICITORS:
Deputy Attorney General of Canada for
appellant (defendant).
O'Connor, Ecclestone and Kaiser, Kingston,
Ontario, for respondent (plaintiff).
The following are the reasons for judgment
rendered in English by
MARCEAU J.A. (concurring in the result): I
readily agree with Madame Justice Desjardins
that this appeal must succeed, but the reasons
which lead me to that conclusion differ so substan
tially from hers that I feel bound to express my
personal views, if only briefly.
It would serve no purpose for me to go through
yet another review of the facts and the proceed
ings: I simply refer to the reasons of my colleague.
To introduce and make understandable the brief
comments I wish to make, I need only repeat the
essential aspects of the findings of the Trial Judge
[[1988] 1 F.C. 369].
With respect to frisk searches of male inmates
by female guards, the Trial Judge came to the
view that the intrusion on privacy they imply is too
"trivial" to raise a problem under section 8 of 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]]. The inequality of
treatment between women and men which results
from the fact that only men are subjected to such
cross-gender frisk searches could bring into play
the prohibition of subsection 15(1), but it is vali
dated, under subsection 15(2), by the affirmative
action program adopted to enable women to have
adequate job opportunities in the federal correc
tional service. With respect to the patrolling by
female guards of the actual living areas of male
prisoners, the Trial Judge found that, except in
emergency situations, section 8 of the Charter
protects inmates, during normal waking hours,
from such unexpected surveillance patrols. Indeed,
these "winds", in his view, were searches within
the meaning of section 8 and, when conducted by
female guards, they constituted an intrusion on
human dignity by going against societal norms of
decency. As to whether such an invasion into the
privacy of male inmates could not be validated by
the affirmative action program, he thought that it
could not, since a prohibition of unscheduled or
unannounced patrolling by female guards would
neither cause serious administrative problems in
institutions nor significantly impair the career
opportunities of female officers. So, the Trial
Judge saw fit to dispose of the action as follows:
It is hereby ordered and adjudged that
(1) it be declared that at Collins Bay Penitentiary it is unlaw
ful, except in emergency situations, for female guards to
view male inmates in their cells without their express or
implied consent where such viewing is neither previously
scheduled to the general knowledge of inmates affected nor
previously announced to them by reasonable means; and
(2) there be no costs awarded.
Madame Justice Desjardins, as I read her rea
sons, accepts the approach of the Trial Judge and
follows a reasoning that corresponds to his. Her
disagreement comes, in effect, from a different
appreciation of the relative importance of the com
peting interests involved. More particularly, she
attaches more weight than the Trial Judge to the
affirmative action program—the evidence having
shown that not only had the program fulfilled its
prime goal of opening job opportunities to women
but it had significantly improved the atmosphere
in the institutions—and she does not think, on the
basis of the evidence adduced, that a prohibition as
ordered by the Trial Judge would leave the pro
gram intact.
My objections to the reasoning and findings of
the Trial Judge are much more substantial than
those of my colleague, and the approach I would
adopt to dispose of the action differs markedly
from hers.
I will start with difficulties I have with the form
of the declaration as issued. These are only minor,
of course, but I mention them because they remain
part of my reaction, and in fact are not without
some connection with the more substantial points I
will come to afterwards.
It seems to me that the declaration as formu
lated could not be fully effective and did not quite
correspond to the findings to which it was meant
to give effect. On the one hand, the conditions and
limitations to which the prohibition was subject
would have made the order extremely difficult to
apply. The notions of "implied consent" and "rea-
sonable means" are in themselves quite evasive,
but more particularly the term "to view" does not
appear, in the circumstances, wholly appropriate.
A declaration of unconstitutionality should, I
would have thought, be more definitive and more
precise. On the other hand, the limitation to the
Collins Bay Penitentiary did not correspond to the
prayer for relief' and was not fully in keeping with
the evidence. It is not clear on what basis it could
be said that the "viewing" at Collins Bay could be
' For convenience, I set out here how the prayer for relief
read:
(Continued on next page)
different from that at other penitentiaries and, if
the assessment has to be confined to Collins Bay, it
is not clear why the balancing of the conflicting
interests involved should bring into play the advan
tage of opening employment opportunities to
women elsewhere than at Collins Bay.
I come now to my real objections to the judg
ment of the learned Trial Judge.
First and foremost, I cannot accept the ratio
decidendi supporting the declaration, I mean this
finding that the unexpected viewing or surveillance
by female guards of male inmates in their living
quarters would constitute a breach of section 8 of
the Charter. Here is why.
It does not appear to me that a mere viewing or
surveillance in plain view can constitute a search
within the meaning of section 8 of the Charter. A
search, it seems to me, implies an effort to find
what is concealed, to get past the shield surround
ing privacy, to defeat the efforts of an individual to
keep hidden certain elements pertaining to his life
or personality. It is true that during a surveillance
period or in the course of a patrol in a penitentia
ry, a search may be initiated as a result of suspi
cious observations. It is also true that in a prison
environment, an inmate loses much of his control
over what he may wish to conceal and keep away
from public scrutiny. But that does not make a
mere surveillance a search (comp. R. v. Hebb
(1985), 66 N.S.R. (2d) 91 (C.A.).
Assuming, arguendo, that it is a search, I don't
see how I could convince myself that the charac-
(Continued from previous page)
I. A Declaration that frisk searching by female guards upon
male inmates involving bodily contact in non-emergency
situations is unlawful; and
II. For female guards to be present or to be assigned to
duties which would, in the normal course, put them in a
position to view male inmates in lavatory facilities or other
wise in states of undress, is unlawful; and
III. It is unlawful, except in emergency situations, for female
guards to patrol the actual living areas of male prison
ers;....
teristics of the individual doing the viewing or the
surveillance, for example his or her sex or civil
status or colour or social condition or age, could be
seen as factors affecting the "manner" in which
the search is carried out and therefore capable of
making what is otherwise a reasonable search
unreasonable. And I will go a step further to
express completely my thinking. Even if I were to
be convinced that a surveillance is a search and
that the individual characteristics of the person
doing the surveillance go to the manner in which
the search is carried out and may render the
search unreasonable within section 8 of the Chart
er, I think I could never accept that an individual
convicted of a crime punishable by confinement in
a penitentiary has a reasonable expectation that
the surveillance to which he will necessarily be
subjected will be carried out only by someone with
characteristics acceptable to him. In my view, if
the Charter may be interpreted as guaranteeing
protection for personal interests and feelings such
as those here invoked, be they linked to natural
modesty, cultural background, or religious con
cerns, it is not through section 8. Once it is estab
lished that, in a prison setting, surveillance, includ
ing unannounced patrols of the living areas, is
necessary, the presence of professional female offi
cers should have no further effect under section 8
than should the presence of a female nurse in a
hospital setting.
I also have difficulties with the reasoning on the
basis of which the Trial Judge rejected the conten
tion that a frisk search of a male inmate by a
female guard would violate the prohibition of sec
tion 8 of the Charter as being unreasonable and
that of section 15 of the Charter as creating an
inequality between men and women. It is, it will be
remembered, by taking into consideration the
affirmative action program aimed at opening
employment opportunities to women that the Trial
Judge confirmed the reasonableness of the search
under section 8 and the exceptional validation of
any inequality under section 15.
The Supreme Court in the landmark case of
Hunter et al. v. Southam Inc., [1984] 2 S.C.R.
145, has indicated that to appreciate the reason
ableness of a search under section 8, a balancing
had to be made between the individual's reason
able expectation of privacy, i.e. his reasonable
expectation that he will be "left alone by govern
ment", and "the government's interest in intruding
on the individual's privacy in order to advance its
goals, notably those of law enforcement" (at pages
159-160). The opening of job opportunities for
women is, it seems to me, an extraneous consider
ation in such an analysis; it is obviously not direct
ly linked to the search itself. If a search is unrea
sonable because it offends a reasonable
expectation of privacy, how can it then be rendered
reasonable by the fact that it contributes to the
opening of job opportunities.
And to try to validate the alleged inequality of
treatment under subsection 15 (1) of the Charter
by speaking of the affirmative action program and
referring to subsection 15(2) appears to me no
more acceptable. As I understand it, subsection
15(2) is there to validate the inequality inherent in
an affirmative action program itself and no other.
For instance, the fact that male guards are not
treated exactly as female guards in so far as they
are excluded from women's penitentiaries will be
directly excused by subsection 15(2). But again I
do not see how subjecting male inmates to a
treatment allegedly more harsh than that reserved
to female inmates could be redeemed by a desire to
give women more job opportunities.
In my view, the action should have been dis
missed on the basis of a straightforward reasoning
revolving around only a few simple propositions.
It is very doubtful that the Charter, which is
concerned with the most basic personal rights,
could be interpreted as protecting from any inter
ference with feelings, reactions or sensibilities of
the type here involved, however noble, understand
able and common they may be.
If the Charter does extend its protection to
interests of that type, it can only be, it seems to
me, through the concept of security of the person
under section 7 (see R. v. Morgentaler, [1988] 1
S.C.R. 30, for a detailed consideration of section 7
rights). Then, through the analysis of the funda
mental justice requirement (or if necessary in
applying section 1 provided a law is seen to be
involved), the affirmative action program will have
to be considered and, of course, the consideration
of possible ill effect on the personal feelings of a
few would easily be outbalanced by the other
conflicting considerations of public interest,
namely the promotion of employment equity and
the enhancement of psychological conditions
within the prison.
Finally, I do not think that section 15 of the
Charter is brought into play merely by the fact
that male inmates are not treated exactly as
female inmates since only they are subject to
"cross-gender" frisk searches and surveillance.
Not only is this so-called inequality created by a
hiring policy and a special directive and not by law
(cf. Weatherall v. Canada (Attorney General),
[1989] 1 F.C. 18 (C.A.)), it does not appear to me
to prejudice men in a way significant enough to
speak of discrimination and besides, it is in com
plete keeping with societal differences between
men and women.
I would dispose of the appeal as suggested by
my colleague.
* * *
The following are the reasons for judgment
rendered in English by
DESJARDINS J.A.: This is an appeal from a
judgment of the Honourable Mr. Justice Barry L.
Strayer dated June 9, 1987 whereby he declared
that at Collins Bay Penitentiary ("Collins Bay") it
is unlawful, except in emergencies, for female
guards to view male inmates in their cells without
their express or implied consent where such view
ing is neither previously scheduled to the general
knowledge of the inmates affected nor previously
announced to them by reasonable means.
The respondent is cross-appealing the decision
on two grounds, namely that the declaration is too
restricted because the Trial Judge failed to declare
unlawful all patrolling of the actual living areas of
male prisoners by female guards, and also on the
ground that the Trial Judge erred in concluding
that routine frisk searches conducted by female
guards are lawful, thereby dismissing the respond
ent's request for a declaration that such activity
was unlawful.
An order issued in the Trial Division on
September 7, 1986, directed that the action giving
rise to this appeal be tried consecutively with
Weatherall v. Attorney General of Canada and
Spearman v. The Disciplinary Tribunal of Collins
Bay Penitentiary, Namely Peter Radley et al. Mr.
Justice Strayer issued one set of reasons which was
reported and indexed as Weatherall v. Canada
(Attorney General). 2 The conclusions of the Trial
Judge with regard to Weatherall were appealed
from and were the object of a decision of this
Court in Weatherall v. Canada (Attorney
General).' We are here only concerned with that
part of the Trial Judge's decision dealing with the
respondent Conway.
The appeal and the first ground of the cross-
appeal deal with the patrolling of the living quar
ters of male prisoners by female guards. The
second ground of the cross-appeal deals with frisk
searches. The order issued was carefully limited by
the Trial Judge to Collins Bay and should not be
extended to any other federal institution since the
complaint and the evidence concerns that institu
tion only.
BACKGROUND
The presence of female guards in federal peni
tentiary institutions where men are incarcerated is
at the source of the issues raised. As a background
2 [1988] 1 F.C. 369 (T.D.).
[1989] 1 F.C. 18 (C.A.).
to the case, the Trial Judge indicates 4 that at one
time women were completely excluded from
employment as custodians in federal penal institu
tions for men. In 1977 a Parliamentary Committee
recommended that women should have the oppor
tunity for such employment. The Committee's
reports said the following on this subject at
pages 601-602:
Women Employees
316. Some women are already employed by the Penitentiary
Service in institutions for male offenders. Most are in classifi
cation, education, psychology, or clerical positions. However,
they do not have the career opportunities available to male
correctional officers. In the United States, women and men
perform the same correctional duties. That includes custody,
training, shop instructing, and security complete with the frisk
on entry to the prison. (Such frisking is done objectively and
without any self-consciousness. Women do not do skin frisks).
The administration and most male correctional officers have
welcomed the new dimension of women serving inside the
institutions. No justification exists for excluding competent,
stable and mature women from the full spectrum of the Peni
tentiary Service. The principal benefits for the service are a
pool of new talent and a healthier correctional environment.
Recommendation 17
Women should be employed on the same basis as men in the
Penitentiary Service. Selection must be according to the
same criteria used for men to ensure that recruits have the
aptitude, maturity, stability and self-discipline required for
penitentiary work.
After a pilot project, such policy was introduced in
1980 in respect of minimum-security and medium-
security institutions. In 1983, the Government of
Canada adopted an affirmative action program
which had the effect of setting targets for employ
ment of women in various categories in Correc
tional Services, and ensuring their admission to
such posts by restricting access of male candidates
or transferees. With respect to the two categories
of employees, the CX-COF (Custodial Officers)
and CX-LUF (Living Unit Officers), the target
At pp. 375-376.
5 Report to Parliament of Sub-Committee on the Penitentia
ry System of Canada, Standing Committee on Justice and
Legal Affairs, 1977.
was set at 19% of all such officers to be women by
1988. As of October 31, 1986, 12.4% of all correc
tional officers in federal institutions were women.
At Collins Bay (Kingston), a medium-security
institution, the actual numbers and percentages of
females at the end of October 1986 were
CX-COF, 21 (14.5%) and CX-LUF, 0 (0%), there
being no "Living Units" at Collins Bay. 6 Since the
female officers have been hired fairly recently, not
very many have gone beyond the CX1 level which
is the lowest classification and where searching is a
requirement. A higher proportion of female offi
cers find themselves, therefore, at a level where
most of the searching is done.' At Collins Bay, at
the time of the trial, 100 of the 147 correctional
officer positions were at CX1 level. Female guards
held approximately 25 of these CX1 positions. One
held a CX3 position. There was none at the CX5
level.$ With minor exceptions, female officers are
expected to perform the same duties as male offi
cers and are routinely rotated throughout various
assignments on successive shifts of officers.
The respondent is serving a sentence at Collins
Bay. He complained not of specific incidents but
of two general practices involving the performance
of certain duties by female guards. These duties,
which equally devolve upon female guards because
of their regular rotation throughout all custodial
posts for which their rank qualifies them, are frisk
searching, 9 and entry within the male inmates'
living areas in non-emergency situations.
6 A.B., at p. 360.
' Transcript for December 9, 1986, vol. 2, p. 251.
8 Transcript for December 10, 1986, vol. 3, pp. 429-430.
9 which the Trial Judge describes as searching a fully clothed
inmate by the guard running his or her hands over the inmate's
clothing looking for any unusual signs that might indicate the
(Continued on next page)
Frisk searches are being conducted as a matter
of routine at numerous posts throughout the insti
tution. It is common, for example, for a frisk
search to be required of every inmate passing
certain points in the institution, such as in entering
the administrative or hospital areas or in leaving
the kitchen area after working there. No complaint
was made of the particular way in which such
searches were done other than that they are per
formed by females. The respondent's contention is
that frisk searches are carried out in an unreason
able way if they are cross-gender, i.e. if they
involve a female guard searching the person.
The purposes of the entries within the inmates'
living areas are either for regular counts of prison
ers four times a day (at 7:00 a.m., noon, 4:00 p.m.
and 11:00 p.m.), for surveillance patrols which are
performed about once every hour but at irregular
times so as to maintain an element of surprise
(they are known as "winds"), and to seek prisoners
when their presence is required elsewhere, etc. No
specific personal complaints were formulated as to
the way the examining of the occupied cell of the
respondent or of male inmates had been conducted
by female guards. The concern arises from the
presence of female guards in the living areas.
Conway's main complaint was that female guards
frequently would have occasion to look into an
inmate's cell without warning and that it some
times happened that they would see male inmates
undressed or performing personal functions such
as using the toilet. He said that on average he
would be seen on the toilet one to three times a
year by a female guard. 10 There was no evidence
(Continued from previous page)
presence of a weapon or contraband (A.B., at p. 520). Section 7
of the Commissioner's Directive 800-2-07.1 defines the word
"search" to include a frisk search and describes a frisk search
in the following way:
a. frisk search—is a hand search from head to foot, down
the front and rear of the body, around the legs and inside
clothing folds, pockets and footwear and includes the
methods of searching by use of hand held scanning
devices.
1 " A.B., at pp. 519-520.
of other interference with personal modesty, such
as cross-gender viewing of inmates in showers.
The respondent sought declarations along the
following lines: "
I. A Declaration that frisk searching by female guards upon
male inmates involving bodily contact in non-emergency situa
tions is unlawful; and
Il. For female guards to be present or to be assigned to duties
which would, in the normal course, put them in a position to
view male inmates in lavatory facilities or otherwise in states of
undress, is unlawful; and
III. It is unlawful, except in emergency situations, for female
guards to patrol the actual living areas of male prisoners; ....
THE DECISION OF THE TRIAL JUDGE
The Trial Judge indicated at the outset that the
case involved conflicts, real or apparent, between
the rights or aspirations of two categories of per
sons: a right of privacy for prison inmates to the
extent that it was not necessarily incompatible
with their situation as prisoners, 1 2 with those of
women to equal opportunities for employment in
the federal prison system. The disparity in the
number of women inmates by comparison to male
inmates in federal prisons, he said, made it such
that if women were to have significant opportuni
ties for employment as custodial staff in federal
prisons, it was considered necessary, as explained
in the excerpt from the Report of the Parliamen
tary Committee quoted above, that women be able
to work the full spectrum of the Penitentiary
Service.
He then dealt with sections 7, 8, 15 and 28 of
the Canadian Charter of Rights and Freedoms,
which were invoked by counsel for the respondent.
A.B. at pp. 520-521.
12 He cited the Supreme Court of Canada in Solosky v. The
Queen, [1980] 1 S.C.R. 821, at p. 839;
... a person confined to prison retains all of his civil rights,
other than those expressly or impliedly taken from him by
law.
See also R. v. Institutional Head of Beaver Creek Correctional
Camp, Ex p. MacCaud, [1969] 1 O.R. 373 (C.A.), at
pp. 378-379.
The Trial Judge rejected the application of
section 7 of the Charter, which is a more general
section, in view of the specificity of section 8 of the
Charter to the case. He was of the view that the
activities complained of by the respondent which
invoke the mandatory examination by public offi
cers of premises, persons and activities for pur
poses of law enforcement qualify as a "search".
The issue then became whether, under section 8 of
the Charter, the search was "unreasonable". Since
a legal regime elaborated by the Supreme Court of
Canada in Hunter et al. v. Southam Inc." was
established for testing that particular kind of
intrusion, by implication, other tests under the
Charter were precluded. Thus, section 7 of the
Charter could receive no application in the
circumstances.
With regard to section 8 of the Charter, the
Trial Judge took as definitive a statement of the
Supreme Court of Canada in R. v. Collins: '"
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.
Reasonableness included that a search be car
ried out in a reasonable manner. Reasonability in
execution included, in his view, respect for normal
standards of public decency to the extent that the
constraints implicit in the situation reasonably
permit. 15
He noted that the Penitentiary Service Regula
tions [C.R.C., c. 1251] were silent on the way frisk
searches are to be conducted. Although the Com
missioner's Directive 800-2-07.1 does not expressly
preclude a search of the genital area, evidence
before him indicated that the genital area was
avoided. He felt there was no necessity however to
make a finding on that matter since the respondent
was attacking the conduct of any search by a
female officer on a male inmate. He concluded
that the routine frisk searches were the source of
only trivial and unsubstantial intrusions of privacy.
And if considered more than trivial, the limited
" [1984] 2 S.C.R. 145.
14 [1987] 1 S.C.R. 265, at p. 278.
j5 A.B., at pp. 397-398.
nature of the intrusion was more than offset by the
public interest.
This is what he said [at pages 402-403]:
I have concluded that the routine frisk searches which are in
question in these proceedings do not infringe rights protected
by section 8 of the Charter. In the first place, such an invasion
of privacy is by any standard of measurement trivial and
"trivial or insubstantial" burdens do not give rise to Charter
violations. Even if it is seen as something more than trivial, the
very limited intrusion on privacy involved is more than offset by
the public interest. First and foremost is a need for adequate
security in these institutions and the evidence satisfies me that
both routine and special frisk searches, conducted by someone,
are an important element in maintaining that security. Second
ly, I am satisfied that there is an important public interest to be
served in the employment of women in federal penal institu
tions. This is a matter of fundamental fairness in allowing
women equal access to employment in a sizeable sector of the
federal Public Service. At Collins Bay, where the issue is
relevant in the present cases, it appears to me that to deny
female guards the ability to frisk search would preclude their
employment. Of some 20 security posts there, all but 3 or 4
involve routine or occasional searching. And, according to the
evidence, any officer working in contact with inmates must be
able to perform such searches on an ad hoc basis. If female
guards were unable to perform such duties their usefulness
would be drastically limited with a very negative effect on their
careers. Further, the evidence satisfies me that the presence of
women officers in such an institution has an important benefi
cial effect on the attitude and conduct of most inmates and can
contribute in an important way to assisting in their ultimate
readjustment to society after release. I cannot of course, nor
need I, express an opinion as to frisk searching in other
institutions with respect to which I have neither complaints nor
evidence before me.
With regard to the presence of female guards in
the living areas of male inmates, he stated that for
purposes of counts, of "winds", or even when
visiting prisoners for special reasons, although
most of the cells in Collins Bay had solid doors
with a small window and the remainder had
screens over three-quarters of the door opening, it
was nevertheless possible for female guards to look
into the cells and indeed it was their duty to do so
when conducting a count or a "wind".
He was not concerned with the regular and
known counts, since prisoners could prepare them
selves knowing female guards might be present,
neither was he concerned with the individual visits
since female guards would indicate their presence
on approaching. He was concerned with the
unscheduled "winds", particularly during the day
since at night the male prisoners could take meas
ures to cover themselves properly. He was of the
view that as far as the unscheduled or unan
nounced viewing was concerned, reasonable alter
natives could be developed by the administrative
authorities so as to balance the interests in con
flict. One possible alternative was that a female
officer conducting the "wind" could announce her
presence as the "wind" begins. This happened
anyway, according to the evidence, since the first
inmate to see the arrival of an officer usually
shouted to the others. Or, as another possible
alternative, he said, a male officer could do the
walking while the female officer would remain as a
watch at the entrance of the vestibule. These alter
natives, in his view and according to the evidence,
would not cause serious administrative problems or
undue impairment to the career opportunities of
the female guards. He concluded that, except in
periods of emergencies, the day "winds" caused an
unnecessary invasion to the privacy of male
inmates.
This is what he said [at pages 404-405]:
As indicated above, section 8 cannot be invoked to remedy
trivial detractions from privacy. Further, inmates cannot rea
sonably expect to be free from surveillance. If they have
concerns about being seen in a state of partial or complete
nudity or performing some bodily function, they must be
expected to take certain steps within their means to minimize
such possibilities. At the same time I believe it is an unneces
sary intrusion on human dignity, in the absence of an emergen
cy, for female officers at Collins Bay to view inmates in their
cells in such circumstances. This means in effect that, other
than in emergencies, female officers should not be in a position
to make unannounced or unscheduled visual examinations of
occupied cells of male inmates. On the basis of the evidence I
do not believe this should create any very serious administrative
problems nor impair the career opportunities of female guards.
According to the evidence of Warden Payne of Collins Bay
there are four counts a day, at 7:00 a.m., noon, 4:00 p.m., and
11:00 p.m. These times are well known to the inmates, no
doubt, and they can avoid being in embarrassing positions at
those times when they know female officers may participate in
the count. With respect to individual visits to the cell of a
particular inmate, the evidence indicated that a female officer
approaching such a cell would normally announce her presence
before looking in and again this is properly respectful of the
privacy rights of the inmate without detracting from prison
management. It appears to me that the only problem may arise
with respect to the "winds" which are conducted on the average
every hour, but at random times in order to preserve an element
of surprise. From what I can understand of the staffing
arrangements, and the fact that only 14.5% of the officers at
Collins Bay are females, I do not believe that such a prohibition
on unscheduled or unannounced viewing by female guards on a
"wind" should cause serious problems in administration or be
significantly harmful to the career opportunities of female
officers. It appears to me that there are at least two reasonable
alternatives: if a female officer is conducting the "wind", her
presence can be announced just as the "wind" begins (which
according to the evidence happens any way through a warning
shout from the first inmate who sights the arrival of the officer
conducting the "wind"); or, male officers can do the actual
walking through the cell blocks, perhaps using female officers
to "vestibule" them (that is, to be the guard to watch from the
vestibule the other officer who is actually in the cell block, a
practice employed for reasons of security). Further, I would
only consider such steps to be necessary during the normal
waking hours of the inmates: if an inmate chooses to leave
himself exposed during the normal hours of sleep he can be
taken to run the risk of cross-gender viewing. The appropriate
administrative arrangements are of course a matter for the
authorities of the institution and I make these suggestions only
to indicate that the evidence satisfies me that there are reason
able alternatives to the kind of intrusion of privacy which the
present system permits.
With regard to the section 15 challenge, the
Trial Judge was of the view that frisk searches
caused a trivial interference on the privacy of male
inmates. The complaint therefore could not be
sustained. With respect to the examination of cells,
since the intervention was not trivial, such activity
would be impermissible were it not for subsection
15(2) of the Charter. The affirmative action pro
gram, having as its object the employment of
women in male prisons, incidentally carried with it
the possibility that women perform certain surveil
lance of male inmates' cells. Because there was no
comparable affirmative action programs for males
in federal women's prison in Kingston, he felt
there was a certain inequality flowing from an
administrative fact. 16 He considered however that
this inequality protected by subsection 15(2) of the
Charter precluded a complaint under subsection
16 As noted by the Trial Judge, at p. 380, paragraph 13 of the
Commissioner's Directive 800-2-07.1 says:
(Continued on next page)
15(1) to the extent that the inequality was reason
ably necessary to the operation of the affirmative
action program. He recalled however his earlier
conclusion that the use of female guards in non-
emergency unscheduled, unannounced surveillance
of cells was not necessary to the employment of
female guards in male prisons.
In view of what he said about sections 8 and 15
of the Charter, the Trial Judge concluded that
section 28 had no significant effect in the case.
He rejected any application of section 1 of the
Charter.
He issued the following declaration:"
It is hereby ordered and adjudged that
(1) it be declared that at Collins Bay Penitentiary it is unlaw
ful, except in emergency situations, for female guards to
view male inmates in their cells without their express or
implied consent where such viewing is neither previously
scheduled to the general knowledge of inmates affected nor
previously announced to them by reasonable means; and
(2) there be no costs awarded.
THE APPEAL AND THE FIRST GROUND OF THE
CROSS-APPEAL
Since the appeal and the first ground of the
cross-appeal deal with the same issue, i.e. the
presence of female guards in the living areas of the
male inmates, both will be dealt with together.
The Trial Judge, says the appellant, erred in law
in concluding that the performance by female
guards of their duty to conduct surveillance patrols
of the male inmates' cells at Collins Bay during
(Continued from previous page)
13. No female inmate shall be frisk or strip searched pursu
ant to paragraph 10, except by a female member.
This is in contrast to paragraphs 11 and 14 which in effect
allow male inmates to be frisk searched and, in an emergency,
strip searched by a female officer. It was alleged by the
respondent that in federal institutions for women inmates, male
guards "occupy perimeter security positions only".
" A.B., at p. 513.
the "winds" violates the inmates' rights under
section 8 of the Charter. It is well settled that a
person confined in a prison retains all of his civil
rights other than those expressly or impliedly
taken from him by law. Against the inmates'
reasonable expectation of privacy must be
balanced the public interest which encompasses
three objectives: 1) the need for adequate security
in prisons; 2) the goal of allowing women equal
access to employment in federal prisons; 3) the
goal of rehabilitating inmates. The evidence before
the Trial Judge clearly established that the unan
nounced or unscheduled surveillance of male
inmates' cells by female guards was not so intru
sive as to require the Court's intervention and that
the respondent's and other inmates' limited rights
to privacy in the prison context were being ade
quately protected by measures that avoid the
denial of the female guards' rights to be fully
employed in their positions.
In oral argument, the appellant stated that she
was challenging the inference the Trial Judge drew
from the findings he made, particularly with
regard to the balancing of public interest and the
limited right of privacy of the respondent. This,
she said, constitutes an error of law. R. v. John's
and R. v. Anderson 1 ° were cited in support.
The respondent's position on the appeal is that
the Trial Judge made no error in holding that
female guards ought not to view male prisoners in
their cells in non-emergency situations without
notice. On the first ground of the cross-appeal,
which is the one we are concerned with at present,
18 (1986), 28 C.C.C. (3d) 200, at p. 208. Craig J.A. for the
British Columbia Court of Appeal said:
Whether the taking of blood in these circumstances is an
unreasonable search or seizure requires a careful weighing of
the rights of the individual to privacy and the right of the
State to obtain evidence for the purposes of law enforcement.
This surely is a question of law alone.
19 (1984), 45 O.R. (2d) 225 (C.A.), at p. 229.
the respondent challenges the failing of the Trial
Judge to hold that the viewing of male inmates in
their cells by female guards, in non-emergency
situations, violates section 7, or section 8 or section
15 of the Charter.
I agree with the appellant's position.
I make clear at the outset that I have no dif
ficulty with the reasoning followed by the Trial
Judge in not applying section 7 of the Charter on
account of the specificity of section 8 of the Chart
er to the case at bar.
With regard to the "winds" and the conclusions
the Trial Judge arrived at in view of section 8 of
the Charter, my appreciation of the law as applied
to the facts is different from that of the Trial
Judge.
Hunter et al. v. Southam Inc. 2 ° was concerned
with the reasonableness of a statute authorizing a
search and seizure and not with the manner in
which the authorities were carrying out their
statutory functions. The case at bar is concerned
with the reasonableness of the manner in which
the search is conducted. The same test applies
whether the concern relates to the validity of the
statute or the conduct of the authority acting
under the authority of a statutory requirement.
Dickson C.J. stated in the Hunter case that the
guarantee of security from unreasonable search
and seizure under section 8 of the Charter only
protects a reasonable expectation. This limitation
on the right guaranteed by section 8 indicates that
an assessment has to be made as to whether, in a
particular situation, the public's interest in being
left alone by government has to give way to the
government's interest in intruding on the individu
al's privacy in order to advance its goals, notably
those of law enforcement. 2 ' The Trial Judge was
well aware of the assessment he was called upon to
make.
20 Supra, at p. 154
21 Hunter et al. v. Southam Inc., supra, at pp. 159-160.
I accept the assertion the Trial Judge made that,
"Reasonability in execution includes ... respect
for normal standards of public decency to the
extent that the constraints implicit in the situation
reasonably permit". 22
The assessment he was called upon to make was
to determine what a reasonable person would con
sider reasonable in the circumstances. The balance
that has to be made is akin to what was described
by Lamer J. in R. v. Collins 23 with regard to the
term "bring the administration of justice into
disrepute" as those words are found in subsection
24(2) of the Charter:
The approach I adopt may be put figuratively in terms of the
reasonable person test proposed by Professor Yves-Marie
Morissette in his article "The Exclusion of Evidence under the
Canadian Charter of Rights and Freedoms: What to Do and
What Not to Do" (1984), 29 McGill L.J. 521, at p. 538. In
applying s. 24(2), he suggested that the relevant question is:
"Would the admission of the evidence bring the administration
of justice into disrepute in the eyes of the reasonable man,
dispassionate and fully apprised of the circumstances of the
case?" The reasonable person is usually the average person in
the community, but only when that community's current mood
is reasonable.
The decision is thus not left to the untrammelled discretion
of the judge. In practice, as Professor Morissette wrote, the
reasonable person test is there to require of judges that they
"concentrate on what they do best: finding within themselves,
with cautiousness and impartiality, a basis for their own deci
sions, articulating their reasons carefully and accepting review
by a higher court where it occurs." It serves as a reminder to
each individual judge that his discretion is grounded in commu
nity values, and, in particular, long term community values. He
should not render a decision that would be unacceptable to the
community when that community is not being wrought with
passion or otherwise under passing stress due to current events.
In effect, the judge will have met this test if the judges of the
Court of Appeal will decline to interfere with his decision, even
though they might have decided the matter differently, using
the well-known statement that they are of the view that the
decision was not unreasonable. [Emphasis added.]
The nature of the complaint of the respondent
was not that unannounced and unscheduled sur
veillance of his cell constituted a breach of his
privacy right guaranteed by section 8 of the Chart
er or that surveillance had been done out of curi
osity or by staring or that it was carried on in an
improper or unprofessional way. The complaint
22 At pp. 397-398.
23 [1987] 1 S.C.R. 265, at pp. 282-283.
was that unannounced surveillance carried out by
a female guard constitutes an unreasonable search
by the mere fact that it is being carried on by a
female. 24
The respondent Conway elected to live in One
Block 25 where the cells are open-faced i.e. barred
cells instead of solid door cells. 26 He chose not to
be employed which meant he was in his cell and in
the joint outside his cell for longer periods of time
than those who were employed. 27 In One Block,
the toilet is in the middle of the cell wall and faces
the door directly. 28 Modesty barriers have been
installed. 29
A general description of the ways in which
counts are conducted and the responsibility of the
officer carrying such counts was given at trial by
one woman guard as follows:
Q.... what is your responsibility when you are doing a
count, how frequent is that, what is your response, if that
is the situation when doing a count?
A. My response, well, in One and Two Blocks, the inmates
have sort of set up a bit of a curtain in front of the toilet,
which just allows us to see from the waist up. My
response, if an inmate is in the washroom, I am con
sciously aware of where he is because that is part of my
job, but my main concern is, is he alive?
Q. Is he alive.
A. Is he alive.
Q. I take it you don't stand.
A. I am just checking to make sure I have a body.
Q. So, how long would it take you to observe an inmate in a
cell when doing a count?
A. Two or three seconds.
Q. Is it very often during counts that you have that
experience?
A. Inmates in the washroom?
Q. Yes.
A. I wouldn't say a great deal but it may seem like a lot
because now you have the total block back. You have 100
to 150 inmates, so it might seem like a lot, but I don't
really think it is.
24 The evidence at trial indicates that prisoners appear not to
be concerned with women in their role as nurses. Transcript,
vol. 1, at p. 78.
25 Transcript, vol. 3, at p. 428.
26 Transcript, vol. 3, at p. 419.
27 Transcript, vol. 1, at p. 40.
2 ' Transcript, vol. 3, at p. 424.
29 Transcript, vol. 3, at pp. 444-451.
Q. They know you are coming?
A. Yes. They yell "count-up" at the top of the range.
(Transcript, vol. 4, at pp. 589-590—Emphasis added)
"Winds" (by opposition to counts) are usually
done every hour but at irregular times so as to
keep the element of surprise. One purpose is to
make sure that the inmates are not engaged in any
activities which might be detrimental to the good
order and security of the institution. It is normal
practice however for the first inmate on the range
who sees the guard to yell or make some comment
to alert other inmates that the guard is coming.
There is no doubt that being viewed "from the
waist up", at the time ablution facilities are used,
even for as little as two or three seconds, offends to
a certain extent public decency and the privacy of
the inmates, whether the guards are male or
female. Surveillance patrolling by means of counts
or "winds" are however a necessity in order to
maintain order in the carceral institutions and
verify that the prisoner is alive. Since, according to
the facts of this case, both male and female guards
act responsibly, is it reasonable to conclude that
this type of intrusion becomes unreasonable when
conducted by a female guard by the mere fact that
she is a woman?
My difficulty with the assessment made by the
Trial Judge is the following. He found acceptable
that cross-gender "winds" could be done at night.
Yet, the use of the ablution facilities is also a
possibility at night. One remains puzzled as to why
"winds" are unacceptable during the daytime and
not at night. The evidence shows that the using of
the ablution facilities by inmates has occurred
during the counts. The inmates may not always be
in a position to take measures so as to prevent
these situations during the counts as the Trial
Judge expects they can. Is the line of demarcation
between day "winds" and counts so 'great as to
justify excluding female guards from the day
"winds"? The reasonable alternatives suggested by
the Trial Judge carry their difficulties since
"winds" announced by the administration lose
their element of surprise. The practice which has
developed according to which the first inmate who
views the guard shouts may not always occur at
the beginning of the "wind". The administrative
practice suggested by the Trial Judge for the
female officer to announce the "wind" would
destroy the difference between a count and a
"wind" and render the "winds" useless. On the
other hand, the vestibuling by female guards while
men guards do the patrolling puts male guards in
stressful situations more often than female
guards. 30 Two categories of guards will be created.
Some guards will have more responsibilities than
others, some will gain more experience than
others. Women will not be able to work the full
spectrum of the Penitentiary Service as was
recommended by the Parliamentary Committee.
The public interest served by the presence of
female guards is not only directed to the improve
ment of the lot of women. It is concerned also with
the enhancement of the quality of life in the
prisons and the rehabilitation of the inmates.
The presence of women guards in carceral insti
tutions in general has had some significant positive
impact for the inmates and the institutions. Wit
nesses have expressed the thought that their pres
ence has caused an "ameliorating effect", a
"smoothing out" effect. 31
Mr. Ralph Charles Serin, a psychologist, has testi
fied in the following terms: 32
Inmates, not all but many adopt very traditional values towards
women which is that the male is the provider in that situation
and tends to do more of the decision-making. The problem is
when an inmate is incarcerated and he is maintaining a rela
tionship, the female is left without that provider and becomes
more independent. Certainly in my experience, I have had to be
involved in counselling between inmates and their spouses as
the woman becomes more independent and learns to make
30 Transcript, vol. 3, at p. 438.
31 Transcript, vol. 3, at p. 452.
31 Transcript, vol. 3, at pp. 497-498.
decisions for herself. That presents, on some occasions, difficul
ties for the male and female in terms of how they might get
along when they get out, how they may have a chance to see a
model of a more contemporary view of women, a more
independent woman, and a chance to interact with those
women I think will be fruitful for the men.
Dr. Lionel Béliveau, a psychiatrist, has testified: 33
[TRANSLATION] To name only a few, I would mention a
number of advantages I have observed from my personal
experience of having women work in prison institutions for
men. As reported earlier, women encourage inmates as well as
the other male guards to respect human dignity. Their presence
discourages depraved or socially unacceptable behaviour. They
facilitate the normalization of relations, thus helping to create a
more human atmosphere in prisons. They help modify the
prison subculture and reduce the number of violent acts inher
ent in the laws of the milieu or the jungle that existed before
they arrived.
Dr. Lois Shawver, a Ph.D. in clinical psychology,
1973, University of Houston, has stated: 34
Women guards in the housing units of male prisons improve the
prison culture in very significant ways. Although inmates may
feel a trivial modesty concern, the misery of their general
experience is reduced by the presence of women guards.
Any deterioration in the working load of women
guards might bring more loss to the prison system
than the alleged intrusion of privacy claimed by
the respondent. On balance, the goals pursued by
the state overrides the concerns of the respondent.
In view of this conclusion, I find that no breach of
section 8 of the Charter is committed when day
"winds" are conducted by female guards.
For the same reason, I would dismiss the first
ground of the cross-appeal. What is sought by the
respondent is an even wider exception than that
made by the Trial Judge since the request is for
the total exclusion of women guards from surveil
lance of the inmates' living areas. The Trial Judge
found the exclusion unnecessary in cases of counts
33 A.B., at p. 508. The original version (French) is to be
found at pp. 495-496.
34 A.B., at p. 456.
or night "winds". My assessment is that the pres
ence of female guards in the living areas of the
inmates for professional reasons, at all times, is not
unreasonable.
I would allow the appeal. I would dismiss the
first ground of the cross-appeal.
THE SECOND GROUND OF THE CROSS-APPEAL
The respondent claims that the Trial Judge
erred in law when he concluded that frisk searches
caused no or very little invasion to the privacy of
male inmates.
The Trial Judge found that frisk searches of
male prisoners by women guards, did not consti
tute a breach of the rights guaranteed by sections
7, 8 or 15 of the Charter.
In view of what I said earlier, I have no difficul
ty with the assessment made by the Trial Judge. I
would dismiss the second ground of the cross-
appeal.
CONCLUSION
I would allow the appeal, I would set aside the
judgment of the Trial Judge issued June 9, 1987. I
would dismiss the cross-appeal.
I would order that the appellant be entitled to
costs on the cross-appeal.
HEALD J.A.: I concur.
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.