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June 1998: The Biega Case

There was a fifth case on the docket of June 24, 1998, that revealed a level of disrespect for the dignity of prisoners and raised very significant legal issues and once more illustrated the contribution that legal counsel can make to the fairness of prison disciplinary hearings. Mark Biega was charged with possession of contraband in the form of a plastic balloon containing a small quantity of marijuana. On May 24, 1998, during an open visit the staff observed him unzipping his pants and placing something down them. At the conclusion of the visit, Mr. Biega was subjected to a strip search that revealed nothing. He was then taken to segregation where, in accordance with normal procedures, he was again asked to strip before being placed in the observation/dry cell. Again nothing was found upon his person. His placement in the dry cell was authorized by the acting deputy warden. The written authorisation that was given to Mr. Biega stated:

This memorandum is to inform you that based on reasonable grounds, I have authorized your placement in a dry cell. The reasonable grounds are based on personal observations by V and C staff. You were observed attempting to secrete an unknown substance into a body cavity by unzipping your pants and placing your hands into your pants. These observations are substantiated by a video tape of the incident. (Memorandum from acting deputy warden to Mark Biega, Kent Institution, May 24, 1998)

The plumbing arrangements in the observation/dry cell are such that the water can be turned off to the toilet and there is a recovery bowl for the collection of anything passed by the prisoner. The purpose of this arrangement is to wait out the prisoner and if he does not voluntarily give up the item, to recover, in a non-intrusive and non-violent way, anything swallowed or secreted. The only other legal way to recover an item secreted within a prisoner's body cavity is to obtain an authorisation for a body cavity search. Under s. 52 of the CCRA the institutional head may authorize a body cavity search where there are reasonable grounds to believe that an inmate is carrying contraband in a body cavity and that a body cavity search is necessary in order to find or seize the contraband. However, there are two further requirements for such a search; first, it must be conducted by a qualified medical practitioner and second, the consent of the prisoner must be obtained.

After Mr. Biega was placed in the dry cell two officers observed him from their position outside the door. Several hours later, one of the officers observed Mr. Biega reaching into his pants at which point Mr. Biega was asked to come out of the dry cell and ordered to submit to a third strip search. On this occasions, however, in addition to being told to take off all his clothes, he was asked to bend over. What happened thereafter was the subject of quite divergent accounts. The officer who filed the offence report against Mr. Biega, in his observation report, stated:

Inmate Biega was being skin frisked in the upper J-Unit common area due to his suspicious behaviour during a dry cell. Inmate Biega was given several direct orders by this writer and COI Spenser but would not comply. Force was used to bend Inmate Biega over. At this time Inmate Biega resisted and was placed on the floor where restraints were applied. At this time a small white, rubber package was seen sitting on Inmate Biega's buttcheeks. The package was seized and placed in the evidence locker by this writer. (Officer's Observation Report, May 24, 1998)

Five other officers also filed observation reports. According to Officer Wells:

Inmate Biega was ordered several times (probably close to 10 times) to bend over and would not comply. Officers Hobson, Savant, Spenser, Brent and Ramsey as well as myself then approached the inmate and he was told that if he didn't bend over he would be assisted by the officers. When COI Spenser approached Inmate Biega he started to resist and then he was taken down on the floor and placed in arm and leg restraints. A white balloon was removed from the inmate's buttocks area by Officer Savant . . . at no time was anything more than minimal force used on Inmate Biega. (Officer's Observation Report, May 24, 1998)

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