T-963-89
David M. Warriner (Applicant)
v.
The Disciplinary Tribunal of Kingston Penitentia
ry, namely Michael McCue, Independent Chair
person (Respondent)
INDEXED AS: WARRINER v. KINGSTON PENITENTIARY (T.D.)
Trial Division, MacKay J.—Ottawa, November
21, 1989; December 7, 1990.
Penitentiaries — Application to quash decision convict
guilty of disciplinary offence of failing to obey lawful order
Refusing to "bend over" to expose rectal area during strip
search after "contact visit" with wife — Chairperson not erring
in refusing to consider application of Charter in determining
whether order lawful, as issue not raised at disciplinary hear
ing — Order to bend over authorized by law — Made pursuant
to institutional Standing Orders and Commissioner's Directive,
which though not law, conformed to Penitentiary Service
Regulations, s. 41(2)(c) — S. 41(2)(c) providing any member
may search inmate where member considering it reasonable to
detect contraband or to maintain good order — Exercise of s.
41(2)(c) search power only required to be for purposes included
in Regulation — Although Regulations not defining search,
Commissioner free to establish definitions and procedures for
searches for general purposes described ins. 41(2)(c).
Constitutional law — Charter of Rights — Criminal process
— Convict refusing to obey order to "bend over" to allow
visual inspection of rectal area after "contact visit" with wife
— Order search within Charter, s. 8 — Search reasonable in
light of reasons for practice — Authorized by law — Law
reasonable — Although search interfering with privacy,
reasonable expectation of privacy of maximum security peni
tentiary inmate differing from that of person outside prison.
Constitutional law — Charter of Rights — Life, liberty and
security — Convict refusing to obey order to "bend over" to
allow visual inspection of rectal area during strip search after
"contact visit" with wife — Charter, s. 7 inapplicable — Not
intention of Charter's framers searches not precluded by s. 8
precluded by s. 7.
This was an application for certiorari to quash the tribunal's
finding that the applicant, an inmate of Kingston Penitentiary,
a maximum security institution, was guilty of the disciplinary
offence of failing to obey a lawful order. The convict had
refused to bend over to expose his rectal cavity to visual
inspection during a strip search after a "contact visit" with his
wife. He felt degraded and humiliated and was unaware of any
conduct or other evidence that would have given rise to reason
able grounds to believe that he was in possession of contraband.
The applicant argued that the order was not authorized by law
as it was not provided for in the Penitentiary Act or Penitentia
ry Service Regulations and that it infringed his rights guaran
teed by Charter, sections 7 (right not to be deprived of security
of the person except in accordance with the principles of
fundamental justice) and 8 (right to be secure from unreason
able search or seizure). The application challenged only the
validity of the order to "bend over" as part of the strip search,
not the validity of strip searches in general. Paragraph 39(a) of
the Regulations makes failure to obey a lawful order a discipli
nary offence. Paragraph 41(2)(c) provides that any Correction
al Service member may search any inmate where the member
considers it reasonable to detect the presence of contraband or
to maintain good order. Commissioner's Directive Number 571
permits strip searches, which are defined as a visual search of a
naked person including body cavities while the individual bends
over. Kingston Penitentiary's Standing Order with respect to
searching inmates requires bending over in its definition of skin
searches. It also provides that inmates returning from an open
visit will be skin searched. The applicant argued that an order
which physically interferes with bodily integrity, the first object
of a person's individuality and freedom, with resulting humilia
tion, degradation and psychological trauma imposed by the
state, violates Charter, section 7. The issues were whether the
Chairperson erred by refusing to consider the application of the
Charter in determining whether the order was lawful; whether
the order to "bend over" was authorized by law; and whether
that order contravened Charter, sections 7 and/or 8.
Held, the application should be dismissed.
The Chairperson did not err in failing to address the Charter
issues. The applicant did not raise the issue of the applicability
of the Charter to his situation during the disciplinary hearing.
He limited his arguments to the submission that the order to
"bend over" was unlawful as not authorized by the Penitentiary
Service Regulations.
The order to "bend over" as an incident of the strip search
following a contact visit was authorized by law. It was made
pursuant to institutional Standing Orders and the Commission
er's Directive, which though they were not themselves law, were
within the scope of paragraph 41(2)(c) of the Regulations. No
limits are imposed on the paragraph 41(2)(c) power to search
inmates, except that it be for the purposes included in the
Regulation. The Regulation does not require the searching
officer to consider a search reasonable for the purposes set out.
The search herein was a matter of routine within the Penitenti-
ary's Standing Order following a contact visit to detect the
presence of contraband. While no definition and no specific
procedure for a "search" is set out in the Regulations, the
Commissioner, responsible for the administration of the Cor
rectional Service and of penitentiaries, was free to establish
definitions and procedures for searches for the general purposes
described in paragraph 41(2)(c). Provided that the policy anc
guidelines established do not extend to matters or purpose:
beyond the Act and Regulations, then they are within the
authority for searching inmates as provided in paragrapi
41(2)(c).
It was unlikely that it was the intention of the framers of thl
Charter to preclude by section 7 searches not precluded b3
section 8. Charter section 7 was inapplicable in this case.
The order to bend over, made as an integral part of a skir
search, did not violate Charter, section 8 in light of the reason:
underlying the establishment of that routine. The requirement
that a naked person bend over to allow a visual inspection 01
the anal cavity constituted a search within the meaning of
section 8. The search was reasonable because (1) it was author
ized by law; (2) there was no issue as to the manner in whict
the search was carried out because it never took place; and (3;
the law was reasonable. As to the last condition, although the
search did interfere with the inmate's privacy, the reasonable
expectation of privacy of an inmate of a maximum securit3
institution is different from that of a person outside prison
Searches of various kinds in maximum security institutions are
necessary for the safety of inmates and staff and for good order
of the institution and the control of contraband. A strip search,
including the order to bend over for visual examination of the
anal cavity, instituted as part of a routine search procedure
following an open or contact visit, on the belief of the Warder
that such searches are essential for the safety of inmates and
staff and good order of the institution does not require a
coincidental belief on the part of the searching officers that
contraband is concealed on the person of the inmate searched.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part
of the Constitution Act, 1982, Schedule B, Canada Acl
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II.
No. 44], ss. 1, 7, 8.
Penitentiary Act, R.S.C., 1985, c. P-5.
Penitentiary Service Regulations, C.R.C., c. 1251, ss ,
38.1(2) (as am. by SOR/80-209, s. 3; SOR/85-640, s
3), 39(a) (as am. by SOR/85-640, s. 4; SOR/88-547, s
5), 41(2)(c) (as am. by SOR/80-462, s. I; SOR/88-
547, s. 1).
CASES JUDICIALLY CONSIDERED
APPLIED:
Wilson v. Minister of Justice, [ 1985] I F.C. 586 (C.A.):
(1985), 13 Admin. L.R. 1; 20 C.C.C. (3d) 206; 6 C.P.R.
(3d) 283; 46 C.R. (3d) 91; 16 C.R.R. 271; 60 N.R. 194:
Robertson v. Yeomans, [1982] 1 F.C. 53; (1981), 121
D.L.R. (3d) 353; 58 C.C.C. (2d) I (T.D.); Weatherall v.
Canada (Attorney General), [1988] 1 F.C. 369; (1987). .
59 C.R. (3d) 247; 11 F.T.R. 279 (T.D.); 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) I; 56 C.R. (3d) 193; 28 C.R.R. 122; 74 N.R. 276.
CONSIDERED:
Hanna V. Matsqui Institution Disciplinary Court,
T-1479-90, F.C.T.D., Teitelbaum J., judgment dated
13/7/90, not yet reported; Jackson v. Joyceville Peniten
tiary, [1990] 3 F.C. 55; (1990), 55 C.C.C. (3d) 50; 75
C.R. (3d) 174 (T.D.); Gunn v. Yeomans, [1981] 2 F.C.
99; (1980), 114 D.L.R. (3d) 288; 55 C.C.C. (2d) 452
(T.D.); Re Maltby et al. and Attorney-General of Sas-
katchewan et al. (1982), 143 D.L.R. (3d) 649; 20 Sask.
R. 366; 2 C.C.C. (3d) 153; 4 C.R.R. 348 (Sask. Q.B.);
affd (1984), 10 D.L.R. (4th) 745; 34 Sask. R. 177; 13
C.C.C. (3d) 308; 14 C.R.R. 132 (C.A.); Soenen v. Direc
tor of Edmonton Remand Centre, Attorney General of
Alberta and Solicitor General of Alberta (1983), 48 A.R.
31; 31 D.L.R. (4th) 658; [1984] 1 W.W.R. 71; 28 Alta.
L.R. (2d) 62; 8 C.C.C. (3d) 224; 35 C.R. (3d) 206; 6
C.R.R. 368 (Q.B.).
REFERRED TO:
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.); 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; Mar-
tineau v. Matsqui Institution Disciplinary Board, [1980]
1 S.C.R. 602; (1979), 106 D.L.R. (3d) 385; 50 C.C.C.
(2d) 353; 13 C.R. (3d) l; 15 C.R. (3d) 315; 30 N.R. 119;
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) l; 41 C.R. (3d) 97; 9
C.R.R. 355; 84 DTC 6467; 55 N.R. 241.
COUNSEL:
Donald A. Bailey for applicant.
• Ian M. Donahoe for respondent.
SOLICITORS:
O'Connor, Ecclestone & Kaiser, Kingston,
Ontario, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
MACKAY J.: This matter came on for hearing
on November 21, 1989 at Ottawa, Ontario. The
applicant, an inmate of Kingston Penitentiary,
seeks relief in the form of an order in the nature of
certiorari, quashing the respondent's finding,
dated January 7, 1988, that the applicant was
guilty of a disciplinary offence. The ground
claimed for the relief sought is that the offence,
failure to obey a lawful order, related to an order
to bend over to expose the rectal cavity during the
course of a strip search, is an order not authorized
by law. It is said that the order is not provided for
within the Penitentiary Act, R.S.C., 1985, c. P-5
or the Penitentiary Service Regulations [C.R.C.,
c. 1251], and that it infringes on rights guaranteed
by sections 7 and 8 of the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44]].
On December 14, 1987 the applicant, after a
"contact visit" with his wife, was subjected to two
strip searches by officers at the Kingston Peniten
tiary, a maximum security institution within the
Correctional Service of Canada. The first search
was performed by Officer Demers who, when the
applicant failed to obey his order in relation to the
search, took Warriner to the Dissociation Cells
Lobby and Vestibule. There the applicant was
subjected to a second strip search, initiated by
Demers and completed by Officer Bertrand when
Warriner again refused to obey an order in rela
tion to the search.
The applicant cooperated with the officers in
these searches to the extent that he removed all of
his clothing and did all that was expected of him
until he was directed to bend over at the waist and
touch his toes, so that his anal cavity was exposed
for inspection. This he refused to do. The applicant
has indicated that he refused to bend over as
demanded on the basis that he "felt degraded and
humiliated by such process and ... felt it was
unlawful and unnecessary". At the time the appli
cant refused to obey the order he apparently
believed, and continues to believe, that no statute
or regulation authorized such an order.
The applicant was charged with two disciplinary
offences of disobeying or failing to obey a lawful
order of a penitentiary officer, pursuant to para
graph 39(a) of the Penitentiary Service Regula
tions [as am. by SOR/85-640, s. 4; SOR/88-547, s.
5]. A hearing before the respondent Independent
Chairperson, Michael McCue, was held on
December 17, 1987 and January 7, 1988. The
applicant entered a plea of not guilty to the
charges. He was convicted of one offence charged,
and sentenced to seven days off privileges.
Whether or not the applicant refused to bend
over as directed is not at issue. The applicant
concedes this in his affidavit which states, in part:
I refused to bend over as demanded on the basis that I felt
degraded and humiliated by such process and that I felt it was
unlawful and unnecessary.
I was not in possession of any contraband in any part of my
body including my anal cavity at that time. Nor am I aware of
any conduct or other evidence that would give rise to any
reasonable grounds that I was in possession of any such
contraband.
The applicant now requests an order for certio-
rari quashing the respondent's finding of guilty in
the matter of the alleged disciplinary offence. The
grounds for the application are listed in the notice
of application as follows:
1. The order which the inmate refused to follow was not a
lawful order; on the contrary, to require the applicant to
comply with such order was to infringe on his security of the
person not in accordance with the principles of fundamental
justice and thus was in violation of his fundamental right
guaranteed by section 7 of the Canadian Charter of Rights and
Freedoms; and further, or in the alternative,
2. There is nothing prescribed by law, entitling a prison official
to order an inmate not merely to remove his clothing but to
bend over to touch his toes while nude; and further, or in the
alternative,
3. The further ground that, even if such an order is prescribed
by law, such a limitation is not one that is demonstrably
justified and reasonable in a free and democratic society; and
further, or in the alternative,
4. On the further ground that, in the particular circumstances
of the case, to require the applicant to bend over naked
amounted to such an infringement of his security of the person,
being such a degrading process as it was, particularly in light of
the absence of evidence suggesting misconduct on the part of
the applicant, that it amounted to an unjustified violation of his
rights guaranteed by section 7 of the Charter; and further, or in
the alternative,
5. The Respondent either failed to address the issue of the
violation of the section 7 rights of the applicant and thus made
an error going to jurisdiction or, in the alternative, erred in
determining that no violation of the section 7 rights of the
applicant took place.
During the hearing of this application, counsel for
the applicant also raised the issue of the alleged
violation of section 8 of the Canadian Charter of
Rights and Freedoms. He noted that the applicant
had sought to raise this matter in his appearance
before the respondent Independent Chairperson,
when he represented himself as was the practice in
these disciplinary proceedings.
The respondent urges that the applicant does
not appear to be challenging the lawfulness of a
policy of requiring inmates to submit to strip
searches after contact visits, rather the only objec
tion is to the order to bend over for a visual rectal
search as part of the strip search practice. The
applicant has, however, submitted in its memoran
dum:
21. It is respectfully submitted that the legal authorization for
the conducting of searches by Correctional Officers is limited
to section 41(2)(c) of the Penitentiary Service Regulations
which empowers any member of the Correctional Service to
search "any inmate or inmates where a member considers such
action reasonable to detect the presence of contraband or
maintain the good order of the institution".
Penitentiary Service Regulations, section 41(2)(c)
22. It is respectfully submitted that section 41(2)(c) is ultra
vires the Constitution of Canada in as much as it is in violation
of section 7 and 8 of the Canadian Charter of Rights and
Freedoms and as such is of no force and effect.
The respondent notes that "doubt has been cast on
the validity of section 41(2)(c) of the Penitentiary
Service Regulations", but argues that "this is not
the appropriate vehicle in which to test this issue
as a declaration must be sought by way of action".
I agree with counsel for the respondent in this
regard. The notice of application indicates that the
applicant seeks only an order in the nature of
certiorari to quash the decision of the respondent.
It does not give notice that the applicant seeks a
declaration that paragraph 41(2)(c) of the Peni
tentiary Service Regulations [as am. by SOR/80-
462, s. 1; SOR/88-547, s. 1] is invalid. If declara-
tory relief were sought the Court's Rules require
that this be by action, not by an originating
motion, unless the respondent consents to proceed
ing and the parties place on the record an agreed
statement of all the facts on which the issues are to
be adjudicated,' circumstances which do not pre
vail in this case.
The applicant's prayer for relief and the facts
alleged in his affidavit do not put in issue the strip
searching of inmates in general, or even following
contact visits. It raises only the issue of the validity
of the order to "bend over" as part of the process
of a strip search, and only in so far as that relates
to the validity of the respondent's decision.
The following issues are accordingly raised by
this application:
a) Did the Chairperson err by refusing to consider the
application of the Charter in determining whether the order
was lawful?
b) Was the order to "bend over" authorized by law?
c) Was the order contrary to sections 7 and/or 8 of the
Canadian Charter of Rights and Freedoms and therefore
unlawful?
The regulatory framework
Before dealing with the issues it is convenient to
set out the regulations, directives and standing
orders which are relevant in this case.
Paragraphs 39(a) and 41(2)(c) of the Peniten
tiary Service Regulations, C.R.C., c. 1251 as
amended, provide as follows:
39. Every inmate is guilty of a disciplinary offence who
(a) disobeys or fails to obey a lawful order of a member,
41....
(2) Subject to subsection (3), [which reads: "No female
person shall be searched pursuant to subsection (2) except by a
female person".], any member may search
(c) any inmate or inmates, where a member considers such
action reasonable to detect the presence of contraband or to
maintain the good order of an institution .....
The Correctional Service of Canada Commis
sioner's Directive Number 571, dated 1987-03-01,
includes the following under the heading
"Searches of Persons":
Wilson v. Minister of Justice, [1985] 1 F.C. 586 (C.A.),
per Mahoney J.A., at p. 589.
5. Searches shall always be conducted with due regard for
privacy and for the dignity of the individual being searched.
7. When searching a person, one of the following methods may
be used and any one of these methods may include the search of
objects in his or her possession:
a. A frisk search is a hand search of a clothed person from
head to foot ...
b. A strip search is a visual search of a completely unclothed
person and requires the individual to bend over to allow a
visual inspection of cavity areas. It shall be conducted by a
staff member of the same sex and normally in the presence of
a witness. This witness shall also be of the same sex. Further
more, all clothing and possessions are to be searched;
c. A body cavity search is a strip search with a physical
examination of all body openings ....
Kingston. Penitentiary's Standing Order with
respect to searching inmates, Number 571-2 dated
October 31, 1987 contains a definition of "skin
search", which appears to relate to the "strip
search" included in the Commissioner's Directive
571, in the following terms:
Skin search: a skin search means the inmate shall be stripped of
his clothing, in private surroundings, and thoroughly searched.
A visual inspection of his person including mouth, feet, and all
other orifices shall be done. The inmate will be required to bend
over to give a full view of rectal and gential [sic] areas. The
searching officers shall not touch the inmate with the exception
of head hair. Two officers shall be present with a correctional
officer supervising.
While not relevant for this proceeding I note that
after the events giving rise to this application, in
July 1988, the Standing Order 571-2 was amended
at the end of the third sentence to include the
words "he will, however, not be required to spread
his buttocks." Kenneth Harvey Payne, who as
Warden of Kingston Penitentiary from September
1987 to January 1989, was responsible for prepa
ration of Standing Order 571-2 relating to
searches and search procedures, avers by affidavit:
The definitions were in accord with the definition of "strip
search" contained in paragraph 7(b) of the Commissioner's
Directive 571 and specified that the inmate being searched was
required to bend over to give a full view of rectal and genital
areas.
The Standing Order also provided:
5. Searching of inmates shall be carried out regularly and
systematically to prevent inmates from being in possession of
contraband.
6. Inmates shall be searched:
c. when arriving and leaving the visiting area.
8. ... In addition, the inmates returning from an open visit
will be skin searched in the Visits and Correspondence area.
I turn now to a consideration of the three issues
raised by this application, as stated above.
(a) Did the chairperson err by refusing to consider
the application of the Charter in determining
whether the order was lawful?
The applicant submits, in essence, that the
Independent Chairperson had jurisdiction to hear
a Charter defence raised by the applicant at his
original hearing, and that in failing to address the
Charter issues the Chairperson erred. The appli
cant argues that subsection 38.1(2) of the Peniten
tiary Service Regulations [as am. by SOR/80-209,
s. 3; SOR/85-640, s. 3] imposes upon the
Independent Chairperson the responsibility to hear
the accused's defence, and that nothing in subsec
tion 38.1(2) limits the availability of Charter
defences. A threshold question to be determined in
a charge laid pursuant to paragraph 39(a) of the
Regulations is, the applicant submits, the lawful
ness of the order, and it is accordingly argued that:
. the Independent Chairperson exceeded his jurisdiction in
finding the Applicant guilty without first addressing the issue
of the lawfulness of the order which was directed at the
Applicant.
The respondent argues that the applicant's
memorandum of law and argument was prepared
without the benefit of the transcript of the discipli
nary hearing, and that:
It is now clear from even the most cursory review of same that
the Independent Chairperson, in fact, very carefully examined
the only defence that the Applicant was advancing, namely that
of alleging that the order was unlawful.
On reading the transcript, submitted as an exhibit
to an affidavit filed on behalf of the respondent, I
find that the respondent's submission must be
accepted. Section 7 of the Charter was not men
tioned by the applicant during his disciplinary
hearing. He did mention section 8 of the Charter,
briefly, on one occasion, as he was discussing the
recommendations of the Law Reform Commission
with respect to strip searching. The applicant's
discussion of section 8, in its entirety, is recorded
as follows:
I brought that [Working Paper 30 of the Law Reform Commis
sion of Canada] in view of the descriptions that have been made
about the Canadian Charter of Rights, Section 8, regarding
strip searches, and what not, and it's all included there. Includ
ing the very explicit acts that were required by the police in
times of old, regarding the anal cavity and vaginal searches,
and so forth, so on.
At no time during the hearing did the applicant
himself advance the argument that the section of
the Penitentiary Service Regulations authorizing
the search breached his rights pursuant to section
7 and/or section 8 of the Charter. While the
applicant presented his case competently, his argu
ments were limited to his general submission that
the order to "bend over" was unlawful since noth
ing in the Penitentiary Service Regulations sanc
tioned such an order.
It seems apparent from the transcript that when
the disciplinary hearing commenced, the applicant
was not aware of the Commissioner's Directive
Number 571 and the specific reference in para
graph 7.b of that directive to the requirement in
the course of a strip search for the person being
searched "to bend over to allow a visual inspection
of cavity areas". When that was clarified the
applicant further argued that Commissioner's
Directives do not have the force of law. The appli
cant's own summary of his argument, and the
portion of the Independent Chairperson's response
and reasons for convicting the applicant of the
disciplinary offence in question have been tran
scribed as follows:
MR. WARRINER: I think my point was that the officer didn't
have the lawful authority to make a lawful order towards me in
that respect. And on that point, I think, you would find this in
the Martins Related Criminal Statutes. It is a case that brings
it right to that point regarding the lawfulness or the unlawful-
ness of an order pertaining to a Commissioner's directive.
CHAIRMAN: Okay, but what I'm saying to you is that you
probably have an argument to make. I've listened to your
argument, but then I've also read the Penitentiary Services
Regulations, the Commissioner's directive, and Robertson
Yoemans, the case that I've cited to you. And based on those
three things taken together, I've come to the conclusion that, in
fact, it is a lawful search that they asked to perform on you,
and that the officer did have authority to ask you to bend over
so that he could do a cavity inspection, or whatever it's called in
the Commissioner's directives. And I'm saying principally it's
because of this decision by Gibson that says that this type of
procedure is lawful at Kent Institution, based on a policy that
they would do this after all open visits, and that's exactly what
happened here.
It is clear to me from a careful review of the
transcript that the applicant was given ample op
portunity to answer the charges and raise a
defence, and moreover, that the Independent
Chairperson addressed the issue of the lawfulness
of the order as questioned by the applicant. The
applicant did not raise the issue of the applicability
of the Charter to his situation during the course of
the disciplinary hearing, and accordingly I con
clude that the Chairperson did not err by failing to
address Charter issues, as alleged.
In light of this conclusion, I find it unnecessary
to review the authorities cited by counsel which
deal with the responsibility of an administrative
tribunal to consider Charter issues. For the record
I do note that my colleague Mr. Justice Teitel-
baum decided, subsequent to the hearing in this
matter, that an independent chairperson of
another similar disciplinary tribunal had authority
and responsibility to consider a Charter defence to
a disciplinary charge. 2
(b) Was the order to "bend over" authorized by
law?
The second of the applicant's grounds for this
application states:
There is nothing prescribed by law, entitling a prison official to
order an inmate not merely to remove his clothing but to bend
over to touch his toes while nude.....
The applicant elaborates, in his memorandum of
fact and law:
21. It is respectfully submitted that the legal authorization for
the conducting of searches by Correctional Officers is limited
to section 41(2)(c) of the Penitentiary Service Regulations
which empowers any member of the Correctional Service to
search "any inmate or inmates where a member considers such
2 Hanna v. Matsqui Institution Disciplinary Court (not yet
reported, July 13, 1990, F.C.T.D., Court File No. T-1479-90).
action reasonable to detect the presence of contraband or
maintain the good order of the institution".
23. It is respectfully submitted that the Commissioner's Direc
tives, number 571, (dated March 1, 1987) defines a strip search
as a "visual search of a completely unclothed person and
requires the individual to bend over to allow a visual inspection
of cavity areas".
24. It is respectfully submitted that the Commissioner's Direc
tives do not have the force of law.
The respondent, "for the purposes of this pro
ceeding and in the first instance", does not dispute
the proposition that Commissioner's Directives
"and presumably the Penitentiary's Standing
Orders" do not have the force of law, a position
implicitly recognizing jurisprudence that has dis
cussed the status of Commissioner's Directives.'
The Directive and Standing Order that here pro
vided for the strip search are not considered law
but merely administrative or internal policy for
operations of the Correctional Service. In another
case I commented on this view, as follows: 4
It may be that upon reflection the Supreme Court or the
Court of Appeal itself will qualify this application of Mar-
tineau, 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 initiatives are
taken as outlined by a variety of documents and instruments
purporting to be under general statutes and regulations, as the
Government of Canada's Regulatory Reform Program itself
implicitly acknowledges. There is 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. 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.
3 See: Strayer J. in Weatherall v. Canada (Attorney Gener
al), [1988] 1 F.C. 369 (T.D.), at p. 413; and Weatherall v.
Canada (Attorney General), [1989] 1 F.C. 18 (C.A.) per Stone
J.A., at pp. 31-36. See also: Pigeon J. in Martineau et al. v.
Matsqui Institution Inmate Disciplinary Board [Martineau
No. 1], [1978] 1 S.C.R. 118, at p. 129 and also, Martineau v.
Matsqui Institution Displinary Board [Martineau No. 2],
[1980] 1 S.C.R. 602, at pp. 631-632.
4 Jackson v. Joyceville Penitentiary, [1990] 3 F.C. 55 (T.D.),
at p. 91.
Paragraph 41(2)(c) of the Regulations confers a
broad power upon any member of the Correctional
Service to search an inmate or inmates where a
staff member considers that to do so is reasonable
to detect the presence of contraband or to main
tain the good order of an institution. No limits are
set out for the exercise of this authority, except
that it be for the purposes included in the Regula
tion. On a literal reading, in my view, the Regula
tion does not require the searching officer, as
opposed to some other member in authority, to
consider a search reasonable for the purposes set
out. The facts giving rise to this application clearly
indicate that the search here was a matter of
routine within the Standing Order for Kingston
Penitentiary, following a contact visit, a situation
which the affidavit evidence of Mr. Payne,
Warden at the time of the search, as noted below,
clearly indicates was one where he considered the
process necessary, for reasons that he states, to
detect the presence of contraband. While no defi
nition and no specific procedure for a "search" is
set out in the Regulations, I conclude that the
Commissioner, responsible for the administration
of the Correctional Service and of penitentiaries,
was free to establish definitions and procedures for
searches for the general purposes described in
paragraph 41(2)(c). Provided that the policy and
guidelines established do not extend to matters or
purposes beyond the Act and Regulations then
they are within the authority for searching inmates
as provided in paragraph 41(2)(c).
Aside from considerations arising in relation to
the Charter, which I address in relation to the final
issue here raised, I follow the conclusion of Mr.
Justice Gibson of this Court in Robertson v.
Yeomans 5 that a search within subsection 41(2) of
the Regulations may lawfully include a "skin
frisk" or strip search which includes a "thorough
examination of body and body cavities".
In Robertson, Mr. Justice Gibson was called
upon to consider the arguments that orders to skin
frisk were inconsistent with subsection 41(2) of the
Penitentiary Service Regulations, or alternatively
that if they were consistent, doing skin frisks on a
routine and universal basis was unlawful because
5 [1982] 1 F.C. 53 (T.D.), particularly at p. 60.
of the lack of reasonable and probable grounds on
the part of the member of the Penitentiary Service
directing the search. Noting that following the
decision of Mr. Justice Cattanach in Gunn v.
Yeomans, 6 subsection 41(2) of the Regulations
was amended (on June 20, 1980) to remove incon
sistency between standing orders of various institu
tions of the Penitentiary Service and the Regula
tion as it originally provided, Gibson J. found
relevant to the case before him the words of Mr.
Justice Cattanach in Gunn regarding the efficacy
of skin frisking in the light of its declared purpose:
The plaintiff in his testimony expressed the belief that skin
frisking was deliberately imposed to degrade and humiliate
inmates and not for any other purpose. If that were so the
Standing Order directed to be rigidly enforced by Mr. Caros
would be unlawful as effecting an ulterior purpose.
It is not my function to substitute my opinion for that of the
institutional head as to the most effective methods to ensure the
safety and security of the institution for which he was respon
sible. Skin frisking is an accepted procedure throughout the
Penitentiary Service and I must, therefore, accept the premise
that it is the most effective method of search for contraband
not required to be conducted by medical personnel and accept
ing that premise, as I have, it follows that it was not invoked for
any ulterior purpose.'
Mr. Justice Gibson concluded:
With this view I agree.
In the result, therefore, based on the whole of the evidence
and especially the evidence of John Dowsett, Warden and
Institutional Head of Kent Institution, an experienced and
competent administrator with respect to security matters gener
ally and in particular in maximum security federal penitentiar
ies, I am of opinion that since 20 June 1980 skin frisks of
inmates at Kent Institution after open visits are lawful.
His orders [i.e., Warden Dowsett's] for skin frisks are within
his authority as a member of the Penitentiary Service and in
accordance with section 41(2) of the Penitentiary Service
Regulations.
Further, it follows that there is no basis for the submission
that section 41(2) is ultra vires based on the point of lack of
reasonable and probable grounds for believing on the part of a
member of the Penitentiary Service at the time skin frisks are
ordered that such skin searches are necessary to detect the
presence of contraband or to maintain the good order of Kent
Institution. s
6 [1981] 2 F.C. 99 (T.D.).
Idem, at pp. 107-108.
Supra, note. 5, at p. 60.
Following the decision of this Court in Robert-
son v. Yeomans, supra, and on my own reading of
paragraph 41(2)(c) of the Regulations, I find that
the order to "bend over" as an incident of the strip
search required of the applicant, Warriner, follow
ing a contact visit in the visiting area of the
institution, was authorized by law. The order was
made pursuant to institutional Standing Orders
and the Commissioner's Directive, which though
they were not in themselves law in the formal
sense, were within the scope of paragraph 41(2)(c)
of the Regulations.
(c) Was the order contrary to sections 7 and/or 8
of the Canadian Charter of Rights and Free
doms, and therefore unlawful?
The applicant submits that the order which the
applicant refused to follow was not a lawful order
as it was contrary to the rights and freedoms
guaranteed in section 7 and in section 8 of the
Canadian Charter of Rights and Freedoms. The
respondent submits that, following Mr. Justice
Strayer's reasons in Weatherall, supra, section 7 is
not applicable to this case, and that visual rectal
searches are not unreasonable, in the circum
stances here, within section 8 of the Charter. I
propose to consider the arguments in relation to
each of sections 7 and 8, in turn.
Section 7 of the Charter
The applicant submits that the order which the
applicant refused to follow was not a lawful order,
as it was contrary to the rights and freedoms
contained in section 7 of the Canadian Charter of
Rights and Freedoms. There are three distinct
elements of rights within section 7, the applicant
argues, namely the right to life, to liberty and to
security of the person, and if the actions com
plained of have the effect of depriving the
individual of one of these rights, and that depriva
tion is not in accordance with the principles of
fundamental justice, then such actions are con
trary to section 7 of the Charter. Here it is urged
that security of the person protected by section 7 is
violated by an order that physically interferes with
bodily integrity, the first object of a person's
individuality and freedom, with resulting humilia
tion, degradation and psychological trauma
imposed by the state.
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.
The respondent urges that the decision of Stray-
er J. in Weatherall, supra, be followed and that in
light of his reasoning section 7 is not applicable
here. On an earlier occasion, I was reluctant to
accept the argument that section 7 of the Charter
has no application at all to issues which arise in
relation to searches, a matter clearly within section
8, and in Jackson, supra, I commented:
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 circumstances 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
proceedings were for failure to obey the order to provide a
specimen, but those proceedings were a direct consequence of
the requirement of a search. Disciplinary proceedings affect the
liberty of the plaintiff, 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. 9
Here, however, the principle circumstances of
the case do not much differ from those in Spear-
man v. Disciplinary Tribunal of Collins Bay Peni
tentiary [see Weatherall v. Canada (Attorney
General), [1988] 1 F.C. 369 (T.D.)], also dealt
with by Strayer J. at the same time and in his
decision in Weatherall. Spearman was an inmate
who had been disciplined for failure to obey an
order to submit to a frisk search by a female
custodian, and who sought certiorari to quash the
decision of the independent tribunal which convict
ed him. In this case, as in Spearman, the discipli
nary process was invoked after failure to obey an
order that there be a routine search of the person
of an inmate. It would be artificial to dissociate
9 Jackson, supra, note 4, at pp. 100-101.
the failure to obey such an order from the search
process of which it was an integral part.
I conclude, as did Strayer J. and for the reasons
he set out, that it is unlikely that the framers of
the Charter intended to preclude by section 7
searches of a nature not precluded by section 8. As
Mr. Justice Strayer stated in Weatherall: 10
It is tempting to accept the arguments on behalf of the inmates
that there is some abstract right of "privacy" which must be
protected somewhere in the Charter. But what is in issue here is
a particular form of intrusion on privacy, namely through
searches by officers for the purpose of maintaining security in d
prison institutions. The plaintiffs and applicant did not serious
ly dispute the necessity for body searches and surveillance of
cells. We are not dealing with intrusions stemming from idle
curiosity or officious excess of authority. We are dealing with
purposeful inspections of persons and premises in the interest of
security and such actions must, I think, be taken to be within
the meaning of a "search" as specifically dealt with by the
framers of the Charter in the particular language of section 8.
To be sure, as held in the Hunter["] case, it is a particular kind
of privacy interest which section 8 recognizes and protects from
a particular form of intrusion. A regime is established for
testing that particular kind of intrusion and I think by implica
tion other tests under the Charter are thereby precluded.
Thus, I accept the respondent's argument that
section 7 of the Charter is not applicable in this
case.
Section 8 of the Charter
Section 8 of the Charter provides that:
8. Everyone has the right to be secure against unreasonable
search and seizure.
The applicant submits that the order which the
applicant refused to follow was contrary to the
rights and freedoms contained in section 8 of the
Charter. The respondent, on the other hand,
argues that:
The affidavits of Dr. Workman and Mr. Payne illustrate why it
is essential, at least at Kingston Penitentiary, that strip
searches be conducted in the way that they are for the safety of
inmates and staff.
The respondent submits, accordingly, that visual
rectal searches are not unreasonable within section
8 of the Charter. But if this search process is found
10 Supra, note 3, (T.D.), at p. 390.
" Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145.
objectionable, then the respondent relies, in the
alternative, upon section 1 of the Charter.
It will be useful, at this juncture, to review the
evidence provided in affidavits by Dr. Workman
and Mr. Payne. Neither was cross-examined on his
affidavit and no evidence was adduced in rebuttal
so that their evidence is uncontested in this matter.
Kenneth Harvey Payne was Warden of Kings-
ton Penitentiary during the period September,
1987 to January, 1989. Prior to that he was
Warden for a period of more than eight years at
Joyceville Penitentiary and Collins Bay Institution.
While Warden at Kingston Penitentiary, he devel
oped Standing Order No. 571-2 entitled "Search-
ing Inmates", for the purpose of outlining the
institutional procedures for the searching of
inmates at the Penitentiary, and in order to ensure
that institutional procedures were in compliance
with Commissioner's Directive No. 571. He states
in his affidavit that:
10. It was my considered opinion at the time and it remains my
opinion that it is necessary for the safety of inmates and staff
that all inmates returning from an open visit may be subject to
a skin frisk (also known as a "strip search" or a "skin search"),
and as part of that search be subject to a visual rectal search in
order to ensure that contraband is not brought into the Peniten
tiary for the reasons that follow.
11. Kingston Penitentiary is a multi-level (maximum security)
institution housing approximately 500 inmates and it houses
some of the most volatile and violent convicts in the Canadian
prison system. The crimes for which these people stand convict
ed include murder, assault, rape, and child molestation. Violent
incidents are not routine at Kingston Penitentiary, but they are
unfortunately far from rare.
12. Inmates have a strong desire to obtain mood altering drugs,
and these drugs often make them more physically violent and
dangerous. I am familiar with Dr. Donald George Workman's
study on the relationship between aggression and the taking of
certain drugs, and I can confirm from my experience that what
he has documented is fact. Drug-induced violent events are a
major problem in a penitentiary. An example may be useful.
When I was Warden at Collins Bay Institution, a medium-
security institution, I was aware of at least two deaths there
that were drug initiated and drug related. In one case, a young
inmate paid with his life for failing to give up ten Valium.
13. Open contact visits, while undoubtedly important in
rehabilitating, also present a major opportunity for smuggling
contraband into a penitentiary. This is especially true at Kings-
ton Penitentiary, where the Visits and Correspondence Unit is
far removed from the buildings where the inmates are housed.
14. It is regrettably not uncommon for an inmate and his
family to have pressure put on them to smuggle in contraband
for other inmates. Naturally, the selected "mule" tends to be
someone who one would not normally suspect of concealing
contraband.
15. Inmates are most ingenious when it comes to introducing
contraband into an institution and known incidents include
everything from condoms and balloons full of drugs to an
actual working small calibre (.22 calibre) handgun, rectally
packed. It is imperative, I believe, that management of an
institution retain the right to at least put up a barrier against
inmates easily introducing contraband into the institution in
order to protect the lives and safety of both staff and inmates.
Dr. Donald George Workman is a medical
doctor, who has worked since 1971 as the Institu
tion Physician at Millhaven Institution, a max
imum security penitentiary. His sworn affidavit
includes the following:
6. Contact visits present a major opportunity to pass drugs to
inmates. Often an "innocent" inmate is used as a mule to get
drugs for others. This is a regrettable, but true, fact. I have
found over the years that frequently inmates who receive
psychotropic drugs, such as diazepam (Valium) are often more
physically violent and dangerous than those who are not receiv
ing these substances.
7. I became so concerned about this issue that I, in conjunction
with a Mr. Cunningham who was a medical student at the time
and had been employed at Millhaven Institution for two sum
mers as a research assistant, did a study on the relationship
between prison aggression and the use of minor tranquillizers
and other medications. This study found up to a fifteen fold
increase in violent tendencies in inmates receiving such drugs.
Annexed hereto as Exhibit "A" to this my Affidavit is a true
copy of the paper that Mr. (now Dr.) Cunningham and I wrote
and that was published by the Canadian Family Physician in
1975.
8. Subsequent studies support the results of our study regard
ing drugs and violence and the use of drugs continues to be a
problem in the institution. We have found the majority of
inmates are more interested in mood altering drugs than the
average patient in the private sector. I believe it is paramount
to control the use of such drugs either prescribed or otherwise
within the institution, and it is especially paramount to attempt
to prevent any illicit trafficking in such drugs. When we couple
the results of our study with the fact that inmates on a whole
are more aggressive and violent than the average citizen in the
general population, the above measures are absolutely essential.
9. It is my considered opinion that, for the safety of inmates
and staff, it is essential that prison authorities conduct com
plete skin searches after contact visits including requiring that
inmates bend at the waist, touching their toes so as to expose
their anal cavity. If this practice is not continued, I believe we
could expect an increase in violent incidents in Canadian
penitentiaries.
I note once again, that this application concerns
the order by custodial officers to "bend over", it is
not concerned with the validity of paragraph
41(2)(c) of the Regulations in so far as it purports
to authorize strip searches in general. The
"search" with which we are here concerned is
accordingly a kind of "sub-species", or a particular
phase, of the more general strip search — the
requirement that the individual bend over to allow
a visual inspection of the anal cavity.
At no stage in this proceeding has the respond
ent suggested that the requirement of "bending
over" during a strip search does not constitute a
search within the meaning of section 8 of the
Charter, and I take it, therefore, that this matter is
not at issue. For the record I find that the require
ment that a completely unclothed person bend over
to allow a visual inspection of body cavity areas
constitutes a search within the meaning of
section 8.
Is the search required in the circumstances of
this case one that is unreasonable within the mean
ing of that qualifying term as used in section 8 of
the Charter? In R. v. Collins, 12 Mr. Justice Lamer
(as he then was), 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 this case concern all
three aspects of these criteria of reasonableness.
Two of these aspects I propose to deal with
summarily. Whether the search was authorized by
law was raised as a separate ground for this
application and has already been dealt with. I have
already concluded that the search here objected to,
i.e., the visual examination of the anal cavity area
exposed by the inmate, when stripped of his
clothes, bending over to touch his toes, is author-
2 [l987] 1 S.C.R. 265, at p. 278.
ized by paragraph 41(2)(c) of the Regulations. In
my view, the search was authorized by law.
On another aspect, there is really no issue here
about whether the manner in which this search
was carried out was reasonable, since Warriner
refused to comply with the request that he "bend
over", and the visual inspection of his anal cavity
area never took place. In the circumstances, not
surprisingly, neither the applicant nor the respond
ent made any submissions about the manner in
which the intended cavity area search was carried
out.
I turn to the third aspect of the test enunciated
by Mr. Justice Lamer, the reasonableness of the
law itself. The applicant submits, relying primarily
on the decisions of this Court and the Federal
Court of Appeal in Weatherall, that:
... a law authorizing the conducting of searches which
requires an inmate to undress and bend over in a manner to
expose his anal cavity for inspection when any Correctional
Officer is of the opinion that such a search is necessary to
detect contraband or to maintain the good order of the institu
tion is unreasonable.
I note again that the facts established in this
application are not as broadly based as that sub
mission implies, for here the strip search was
initiated in accord with the institution's standing
orders, immediately after a contact visit by the
applicant with his wife, and, to repeat again, there
was no objection to the search by the applicant,
who was co-operative, and removed his clothing,
until he was ordered to bend over, which order he
refused. The applicant argues that:
(a) the order interferes with an individual's
reasonable expectation of privacy; and
(b) the nature of the belief relied upon or
required to institute a lawful search determines
whether the manner in which the search was
carried out was reasonable, and here there was
no evidence of any belief on the part of the
officers concerned that Warriner was carrying
contraband on his person.
The applicant argues, relying on Hunter et al. v.
Southam Inc.," that "a warrantless search is
prima fade unreasonable". On this point I am
content to adopt the conclusion reached by Mr.
Justice Strayer in Weatherall 14 who, in holding
that searches of inmates do not require warrants,
commented:
While the Supreme Court in Hunter et al. v. Southam Inc., a
case also involving a search of an office, held the search to be
unreasonable because the prior authorization was not adequate,
it also recognized that prior authorization is not an absolute
requirement. In the first place, the Court emphasized that the
guarantee in section 8 from unreasonable search and seizure
only protects a reasonable expectation. It said that in a particu
lar situation an assessment must be made as to whether the
individual's interest in being left alone is outweighed by the
government's interest in intruding on privacy. Further, it was
recognized that "it may not be reasonable in every instance to
insist on prior authorization" but that "where it is feasible to
obtain prior authorization ... such authorization is a pre-condi
tion for a valid search and seizure". Thus there is an element of
relativity which must enter into any decision here as to the
prerequisites for the particular situation of a skin search of an
inmate in a correctional institution.
Pointing to the urgency of searches of inmates,
Mr. Justice Strayer continued [at page 393]:
Prisoners are mobile, and the evidence of prison officers
indicated that with the passage of any appreciable time or the
movement of inmates, even under surveillance, they are often
able to get rid of contraband ... Further, it is not reasonable to
equate the expectation of privacy in a home or office with that
in a prison.
I do not accept the applicant's argument that a
warrantless search of a prison inmate is "prima
facie unreasonable".
I accept that the search here in issue, i.e., the
requirement to bend over to permit visual inspec
tion of the anal cavity area, does interfere with the
privacy of the inmate concerned. But as noted by
Strayer J., and in a number of other decisions
concerning search processes imposed on prison
inmates, the reasonable expectation of privacy that
an inmate of a maximum security institution may
have is very different from that of a person outside
11 Supra, note 11.
14 Weatherall, (T.D.), supra, note 3, at pp. 392-393.
prison. 15 Searches of various kinds and inspection
of individual inmates is the order of the day within
maximum security institutions, for safety of
inmates and staff and for good order of the institu
tion and the control of contraband within the
prison setting.
I also accept the view of Mr. Justice Gibson in
Robertson v. Yeomans,' 6 that a strip seârch
including the order to bend over for visual exami
nation of the anal cavity area, instituted as part of
a routine search procedure following an open or
contact visit, on the belief of the Warden that such
searches are essential for the safety and good order
of the institution does not require a coincidental
belief on the part of the searching officers that
contraband is concealed on the person of the
inmate searched. Paragraph 41(2)(c) of the Regu
lations, as amended in 1980, in effect at the time
of Gibson J.'s decision remains in effect. While
that paragraph was found by Strayer J. to be
unconstitutional in his decision in Weatherall,"
without internal standards or conditions limiting
its application, that decision was varied on appeal.
The Court of Appeal limited the result of Strayer
J.'s order to situations involving so-called cross-
gender searches, where a male inmate was strip
searched in the presence of a female custodial
officer. In the course of his reasons, for the Court
of Appeal, Mr. Justice Stone stated: 18
In my view, in deciding the point we ought not to overlook
these peculiarities of prison life and the special problems they
present to prison administrators discharging their responsibility
for "safety and security" of the institution. They suggest to me
that these administrators are entitled to some deference in
adopting and applying policies and practices required for the
maintenance of order and security, and for the safety and
protection of inmates and staff alike. This is not to suggest that
the authorities and staff should have a completely free hand in
these matters and so abuse their powers. The authority con
tained in paragraph 41(2)(c) is limited to situations where a
member considers that the action is "reasonable" either to
detect contraband or to maintain the good order of the Institu-
15 Weatherall, (T.D.) supra, note 3, at p. 394; and see Stone
J.A. in the Court of Appeal, Weatherall, supra, note 3, at pp.
37-43 and cases therein cited.
16 Supra, note 5.
17 Supra, note 3, (T.D.).
18 Supra, note 3, (F.C.A.), at pp. 42-43.
tion. In my opinion, such searches must always be bona fide.
They cannot be used with the intent of intimidating, humiliat
ing or harassing inmates or of inflicting punishment. A mean
ingful post-search review process should also be available so
that any abuses may be detected at an early opportunity.
The respondent refers to cases supporting its
position that searches of the type refused by War-
riner do not violate section 8 of the Charter. In Re
Maltby et al. and Attorney-General of Saskatch-
ewan et al. 19 the Court upheld routine strip
searches after contact visits as applied within a
provincial institution to inmates held on remand
pending trial, and held that these did not violate
provisions of the Charter. Similarly, in Soenen v.
Director of Edmonton Remand Centre, Attorney
General of Alberta and Solicitor General of
Alberta 20 the Court upheld, as not violating sec
tion 8, strip searches involving a visual examina
tion of the rectal area imposed on inmates of a
provincial remand centre held awaiting trial. Mr.
Justice McDonald commented: 21
I find that this practice cannot be said to be cruel treatment,
even assuming it is unusual. Nor does it constitute an unreason
able search that would infringe s. 8 of the Charter. In my view
a visual search of the rectum of a person just arrested, in the
absence of reasonable and probable cause to believe that an
object has been concealed anally might be unreasonable and a
violation of a reasonable expectation of privacy; but such a
search is not unreasonable and is not a violation of a reasonable
expectation of privacy in the case of a pretrial detainee in a
detention facility, provided that the visual search is conducted
bona fide in a search for weapons or contraband and not for the
purpose of punishment. Such searches may be made in the
absence of reasonable and probable cause to believe that the
prisoner being searched has concealed an object in his
body-cavity.
I return to the affidavit evidence in the matter
before the Court, sworn by Mr. Payne and Dr.
Workman, which is substantially reproduced ear
lier in these reasons. I note again that neither of
the affiants was examined in relation to his affida-
19 (1982), 143 D.L.R. (3d) 649 (Sask. Q.B.); affd (1984), 10
D.L.R. (4th) 745 (Sask. C.A.).
20 (1983), 48 A.R. 31 (Q.B.).
21 1d., at p. 42.
vit and no evidence before me questioned or rebut
ted their conclusions or beliefs. Dr. Workman
refers to a study he completed on the relationship
between violence and the use of drugs in a peniten
tiary setting, his experience in dealing with inmate
patients who are in receipt of drugs, and his opin
ion that for the safety of inmates and staff "it is
essential that prison authorities conduct complete
skin searches after contact visits including requir
ing that inmates bend at the waist, touching their
toes so as to expose their anal cavity". Payne's
affidavit speaks of his experience, states his opin
ion that it is necessary for the safety of inmates
and staff that all inmates returning from an open
visit be subject to a skin frisk (i.e., a strip search)
and as part of that search be subject to a visual
rectal search to ensure that contraband is not
brought into the prison. Payne states reasons in
support of his opinion, reasons based on his experi
ence and observation of prison life. In light of this
uncontradicted evidence I conclude that the search
here required, and questioned in this application,
was based on reasons related to the safety of
inmates and staff and to the good order of the
institution, and that it was not an unreasonable
search contrary to section 8 of the Canadian
Charter of Rights and Freedoms.
The order to bend over to permit visual inspec
tion of the anal cavity area, as a part of a strip
search, instituted as a matter of routine following
an open contact visit of an inmate, in light of the
reasons underlying the establishment of that rou
tine, does not constitute an unreasonable search
prohibited by section 8 of the Charter. Having so
concluded, there is no need to consider the argu
ment advanced at the hearing on behalf of the
applicant that the search could not be warranted
on the basis of section 1 of the Charter.
Conclusions:
I sum up my conclusions on the matters argued.
On the facts averred by affidavit and on exami
nation of the transcript of the disciplinary hearing
conducted by the respondent Independent Chair
person, the Chairperson did not err by refusing to
consider the application of the Canadian Charter
of Rights and Freedoms in determining whether
the order directed to the applicant was lawful.
Charter arguments and defences were not
advanced by the applicant at the hearing in any
way that required the Chairperson to address
them.
On the facts averred and in light of the relief
here claimed, the search in question was limited to
the requirement to bend over to permit visual
inspection of the anal cavity area as an incident in
the course of a strip search or skin frisk, following
an open contact visit by the inmate Warriner, in a
maximum security institution. The search was in
accord with a Commissioner's Directive and
Standing Orders of the institution.
While Commissioner's Directives and Standing
Orders of a penitentiary are not technically con
sidered law, they are for internal administration,
guidance and regulation of the penitentiary within
the Correctional Service. The Directive and Stand
ing Order here concerned do not extend beyond,
and are not inconsistent with, the broad purposes
of paragraph 42(1)(c) of the Regulations and are
authorized by that paragraph; thus, they are
authorized by law, as was the order to bend over
which was issued in accord with Standing Orders
and the Directive.
While the order necessarily infringed upon
privacy of the inmate, it was an integral part of the
search process; issues arising from that order and
the search may give rise to questions whether the
search was valid in light of section 8 of the Charter
but they do not also give rise to questions arising in
light of section 7 of the Charter, which is not
applicable in these circumstances.
The order, made as an integral part of a strip
search or skin frisk which I have found was
authorized by law, did not violate the applicant's
freedom from unreasonable search, as protected by
section 8 of the Charter. In the circumstances of
prison life as identified in the affidavit of the then
Warden of the Penitentiary the search here
ordered was not unreasonable in the situation pre
sented by the facts in this case.
Since neither section 7 nor section 8 of the
Charter is here infringed, there is no need to
consider argument directed to section 1 of the
Charter.
In the result, the application is dismissed, with
costs.
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