There are a cluster of legal issues that arise from these events. They are in chronological sequence: (1) the lawful justification for the third strip-search, including the requirement that Mr. Biega bend over and spread his cheeks; (2) the legality of the removal of the bag of marijuana from Mr. Biega's buttocks; and (3), if there was an illegal search, the effect of this on the disciplinary charge of possession of contraband drugs.

Because of the significance of these issues, Prisoners' Legal Services requested lawyer Peter Benning to represent Mr. Biega. At Mr. Biega's first appearance on June 3, the case was set down for hearing for June 24, that being the first date on which all the officers would be available to give evidence. Mr. Benning agreed to appear on that date. However, when the case was called on the 24th, the institutional advisor, correctional supervisor Demers (who was sitting in for the regular advisor who was on annual leave), discovered that Officer Savant, who was the charging officer, was not in the institution; the reason for his absence was his participation in a national games tournament in Winnipeg, where representatives of the Correctional Service of Canada were competing along with police and fire fighting forces. Mr. Benning was reluctant to agree to an adjournment of the case, given that the hearing date had been set specifically for the convenience of the institutional witnesses and the institution had an obligation to ensure that they were available; he had made arrangements within his own calendar to accommodate the hearing date and expected no less of the institution. The institutional advisor agreed to proceed since there were other witnessing officers who were available to testify.

Officer Wells was called to testify and expanded on the statement in his observation report, which he had written immediately after the events took place, by stating that when Mr. Biega was being told to bend over and was refusing, Officer Helgasson noticed that there was something hanging down from Mr. Biega's buttocks. He also testified that after Mr. Biega was taken to the ground and placed in restraints, the plastic bag was clearly visible sitting in the crack of Mr. Biega's buttocks "like a golf ball on a mound." Mr. Benning, in cross examination, asked why none of the officer's reports, including Mr. Wells's and Mr. Helgasson's, had made no mention of seeing something hanging down from Mr. Biega's buttocks prior to his being placed in restraints, given that it would appear to be a significant factor to be included in a summary of the facts filed contemporaneously with the event. He also asked the officer how he could explain, given that there were seven officers involved in the struggle with Mr. Biega, why the plastic balloon would not have fallen to the floor rather than remain sitting between Mr. Biega's buttocks like a "golf ball on a mound."

In the course of his evidence, Officer Wells testified that Officer Savant, the officer who filed the offence report, after taking custody of the balloon, had placed it in the evidence locker. This balloon, at the beginning of the hearing, had been recovered by the institutional advisor from the evidence locker and was available in the courtroom. Mr. Benning asked Officer Wells whether there was anything to distinguish the balloon on the table from other balloons that the officer had seen at Kent Institution that were used for the purposes of transporting drugs. The officer agreed that there was nothing distinctive about this balloon. In response to a further question, he acknowledged that the last time he saw the balloon was when Officer Savant had placed it in his pocket. He assumed that because the balloon was retrieved from the evidence locker that it was the same balloon.

This last line of questioning turned out to be fatal to the institution's case. It is a necessary element in proving a case of possession of contraband, both in criminal and disciplinary proceedings, to establish "continuity" in the handling of the evidence seized. This is generally done by the officer who seizes the evidence placing it in an envelope or other container which is then sealed and signed by the officer with identifying marks indicating the time and place it was seized. The sealed envelope or container is then placed in a contraband locker, the keys of which are retained both by the officer and a supervisor. The obvious purpose of this requirement of continuity is to ensure that evidence is not tampered with or confused with other evidence relating to other cases and other accused persons. In Mr. Biega's case, Officer Wells was not able to provide that evidence of continuity since he had no personal knowledge of what had happened to the seized balloon from the time when he saw it placed in Officer Savant's pocket. Two other officers were called to give evidence to see if they could shed any light on the issue of continuity but both of them, like Officer Wells, had not seen what Officer Savant had done with the balloon once he left the segregation unit. Mr. Benning therefore submitted that in the absence of any proof of continuity, the case against Mr. Biega should be dismissed. Mr. Routley accepted that submission and found Mr. Biega not guilty.

Although Mr. Biega was not unhappy to be found not guilty, the outcome of this case was unsatisfactory from everyone's perspective. Mr. Demers, the institutional advisor, was understandably embarrassed in presenting a case which had been scheduled at the convenience of the institution, where the institution's principal witness was not available for reasons that were known to the institution when the date for the hearing was originally set. Mr. Demers had not been at that initial hearing and because he was just acting as the advisor for the hearing on the 24th in the absence of the regular advisor, he had not reviewed the case and had not been aware of the critical relevance of the evidence of Mr. Savant. Although Mr. Demers, because he was present at the hearing, was aware of the reasons why Mr. Biega was acquitted, other staff who heard about the acquittal saw it as yet another example of the Independent Chairperson leaning over backwards to protect prisoners from the consequences of wrong-doing. From their perspective, Mr. Biega had been caught red-handed trying to smuggle drugs back into the institution and yet he was leaving the courtroom having been found not guilty because of the fancy technical arguments of his lawyer. Although things looked a little better from Mr. Biega's perspective -- he had after all been found not guilty and had thus avoided a likely sentence of thirty days in segregation -- there was also some disappointment. He had wanted the legality of the search tested and the case dismissed because of the manner in which he had been treated, which he believed to be a violation of his rights. He had hoped that such a ruling would protect other prisoners from experiencing the same indignity. Neither he nor Mr. Benning had expected that the case would be disposed of through a failure to prove the continuity of the evidence. They both expected that Mr. Savant would testify and that his evidence would have established the necessary continuity. The essential thrust of the defence that Mr. Benning had prepared was addressed to the legalities of the searches conducted by the officers and that any evidence obtained through such illegal means should be excluded from consideration by the Independent Chairperson.

This argument raised the three legal issues I have set out earlier. On the first issue of the legality of the strip search to which Mr. Biega was subjected after he was in the dry cell, the argument would have been that there was no legal justification for this search. Under section 49(3) CCRA, a strip search is only authorized if a staff member "believes on reasonable grounds that an inmate is carrying contraband or carrying evidence relating to a disciplinary or criminal offence, and that a strip search is necessary to find the contraband or evidence." Because the first strip search in the visiting area (followed by a second strip search when Mr. Biega was taken to segregation) had not revealed any contraband, authorisation had been given to place him in a dry cell for the very purpose of recovering whatever it was he was believed to have secreted in his body. The acts of Mr. Biega that had triggered the order that he submit to a third strip search was that he was seen to have placed his hands in his pants; this was no more than what he was observed to have done in the visiting area. It was not alleged that Mr. Biega was attempting to destroy the evidence. Continuing his observation in the dry cell until the evidence was either given up or recovered would have satisfied the institution's legitimate interest in recovering that evidence without resorting to more intrusive search measures. Seizing the drugs through a strip search was certainly more convenient in that it avoided the need for staff to observe Mr. Biega and it would have been Mr. Benning's contention that it was convenience rather than anything else that prompted the third strip search. Administrative convenience is not, however, one of the bases upon which the CCRA authorizes a strip search.

It will be recalled from Mr. Biega's account of what happened that when he was told to bend over and spread his cheeks, he asked the officers to show him where in the Rules and Regulations he was required to do this given that he had not been asked to do so on any of the two previous strip searches. Had the officers taken the time to respond to this request, they would have been able to point to section 45 of the CCR Regulations which provide this description of what is entailed in a strip search.

A strip search shall consist of a visual inspection of the person by a staff member, in the course of which inspection the person being searched shall undress completely in front of the staff members and may be required to open the person's mouth, display the sole's of their feet, run their fingers through their hair, present open hands and arms, bend over or otherwise enable the staff member to perform the visual inspection.

This is a very specific description and clearly envisages the "bend over" routine but says nothing about requiring the person to spread their buttocks. If the officers had ordered Mr. Biega to do more than bend over, this would not be a lawful order. (The 'bend over' requirement and the ethical and constitutional issues it raises is the subject of further analysis in Sector 5, Chapter 4.)

Page 3 of 4