Mr. Benning's argument would have then addressed the second issue which related to the seizure of the balloon from Mr. Biega's buttocks. Mr. Benning would have argued that if Mr. Biega's version of events was accepted as credible, the search carried out by the officers went beyond a strip search and trespassed into the definition of a body cavity search for which there was no lawful authorisation. Under the CCRA a "body cavity search" is defined as "the physical probing of a body cavity," and as I have explained, can only be carried out by a qualified medical practitioner and with the consent of the prisoner. Mr. Biega's evidence would have been that the officers forcibly spread his legs and inserted their fingers into his buttocks area and removed the balloon. Mr. Benning would have further argued that Mr. Biega's evidence was to some extent corroborated by some of the officer's observation reports that stated that the balloon was "removed from Mr. Biega's buttocks." It would have been suggested that the account given by Mr. Wells that the balloon was in clear view and was sitting on Mr. Biega's buttocks like a "golf ball on a mound" was not believable. This issue would of course been entirely dependent upon the Independent Chairperson's assessment of the credibility of the witnesses and the "air of reality" of the alternative scenarios suggested by that evidence.

The final part of Mr. Benning's argument would have been that, on the assumption that either the strip search and/or the body cavity search were unlawful, they would constitute an unreasonable search and seizure within the meaning of section 8 in the Charter of Rights and Freedoms and that the evidence seized as the result of such unlawful and unconstitutional conduct ought not to be admitted as evidence at the disciplinary hearing. This part of the argument in itself raises a whole series of difficult legal questions which have not yet been authoritatively determined by the courts, although some of the issues have been dealt with in a related case dealing with the admissibility of illegally attained evidence before the Parole Board. In the case of Mooring v. Canada [1996] 1 S.C.R. 75 (S.C.C.), the Supreme Court of Canada held that the National Parole Board was not "a court of competent jurisdiction" for the purpose of excluding relevant evidence under section 24(2) of the Charter. Section 24 provides:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1) the court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

The majority of the Supreme Court in finding that the Parole Board was not a court of competent jurisdiction took into account the differences between traditional court proceedings and the Board's proceedings, in particular, that the legal rules of proof and evidence did not apply; the Board lacked the power to issue subpoenas, evidence was not presented under oath; and the Board Members may have no legal training. Furthermore, the Board acted on information, not evidence, and acted in an inquisitorial capacity without contending parties; the state's interests were not represented by counsel and the parolee was not faced with a formal case to meet. Lastly, neither the Board nor its proceedings were designed to engage in the balancing of factors required by section 24(2); the concerns about a fair trial and the repute of the administration of justice which were the primary factors in a section 24(2), were overborne at parole hearings by the overriding interest in the protection of society.

Applying this analysis to hearings before the Independent Chairperson of the Disciplinary Board, it could be argued that serious disciplinary proceedings are closer to a traditional court than those of the Parole Board. The Disciplinary Board acts on evidence, not information, the prisoner is faced with a case to meet, and issues of fairness of the trial and the administration of justice are very much an issue. On the other hand, the Disciplinary Board, like the Parole Board, cannot issue subpoenas and evidence is not given under oath. Therefore, applying the Mooring analysis it is not clear where the Supreme Court would settle on this issue. It would certainly be open to an independent chairperson, in the absence of any binding court decision, to make a finding that the Disciplinary Board was a court of competent jurisdiction for the purpose of excluding evidence under section 24(2).

However, a determination that the Disciplinary Board was or was not a court of competent jurisdiction is not the end of the analysis. In Mooring the Supreme Court held that even though the Parole Board was not a court of competent jurisdiction, it was bound by a duty of fairness when deciding upon the rights or privileges of individuals. In determining whether it would be fair to consider a particular piece of information the Board will often be guided by decisions of the courts regarding the exclusion of relevant evidence. In addition, decisions concerning s. 24(2) of the Charter will also be relevant though not determinative. The same considerations would apply to decisions of the Disciplinary Board even if found not to be a court of competent jurisdiction within section 24(2). Therefore, regardless of whether the Disciplinary Board was a court of competent jurisdiction within the meaning of section 24(2) of the Charter, the final stage of the analysis in Mr. Biega's case would turn to a consideration of how criminal courts would deal with the admissibility of evidence seized through an unconstitutional search in circumstances analogous to those in Mr. Biega's case.

The Supreme Court of Canada's jurisprudence on s. 24 has established that the factors to be considered in assessing the admissibility of evidence fall into three broad categories: (1) factors concerning the effect of admission on the fairness of the trial; (2) factors concerning the seriousness of the violation; and (3) factors concerning the effect of exclusion on the reputation of the administration of justice ( R. v. Collins, [1987] 1 S.C.R. 265 and R. v. Stillman, [1997] 1 S.C.R. 607 ). Regarding the first factor, the fairness of the trial, the Supreme Court has drawn a distinction between conscriptive and non-conscriptive evidence. Generally speaking, evidence of drugs obtained through an illegal search has been regarded as non-conscriptive evidence, which rarely affects the adjudicative fairness of a trial. In Mr. Biega's case, the s. 24(2) analysis would therefore hinge primarily upon the consideration of the second and third factors. In considering the seriousness of the violation, the relevant questions the courts have identified are: was the violation deliberate, wilful or flagrant, or was it committed in good faith? Was the violation motivated by urgency or necessity to preserve evidence? Were other investigative techniques available? If the Independent Chairperson found that the search constituted a body cavity search, it would be difficult not to conclude that the violation was a flagrant one given that both of the requirements set out in the CCRA, that the search be conducted by an authorized medical practitioner and that the prisoner's assent be obtained, were flouted by the officers. Although the evidence would show that Mr. Biega placed his hand in his pants, there was no indication that the further search was necessitated by a need to preserve evidence; as to other investigative measures, the confinement of Mr. Biega in the dry cell was such a technique, that had been specifically authorized and which would have ultimately yielded up the evidence. On the third factor of the effects of exclusion of evidence on the administration of justice, the following statement from Mr. Justice Sopinka in R. v. Kokesch [1990] 3 S.C.R. 3 would be particularly relevant.

The offences with which the appellant is charged or serious offences, though narcotic offences involving marijuana are generally regarded as less serious than those involving "hard" drugs such as cocaine and heroin. The appellant would seem to be plainly guilty and the impugned evidence is required for a conviction. It cannot be denied that the administration of justice would suffer some degree of disrepute from the exclusion of this evidence.

However, I have concluded, not without reluctance, that the administration of justice would suffer far greater disrepute from the admission of this evidence than from its exclusion. This court must not be seen to condone deliberate unlawful conduct designed to subvert both the legal and constitutional limits of police power to intrude on individual privacy. (at 34-35)

I have set out these arguments at some length to demonstrate not so much that they would have been successful, either before the Independent Chairperson or on a subsequent appeal to the courts, but to highlight the way in which the activities of prison officers and the process of prison discipline raise important issues of public policy regarding the integrity of the administration of justice and the relevance of a principled framework of jurisprudential analysis. In Mr. Biega's case, instead of that principled framework being brought to bear in a way which would inform the prison community at Kent about the scope and limits of staff powers, thereby encouraging a culture of legality, the acquittal that was entered (because of the failure of the institution to properly present its case), was interpreted by staff as a demonstration of the illegitimacy of the disciplinary court proceedings by its focus on technicalities, thereby allowing prisoners to escape responsibility for their offences.

Consider how a disciplinary process reformed along the lines I have suggested, would have dealt with the Biega case. The institutional staff member charged with responsibility for disciplinary hearings, having been given appropriate legal training, would be alive to the importance of demonstrating continuity of evidence and would have ensured that Mr. Savant was available on the hearing date. Upon being advised that Mr. Benning would be representing Mr. Biega, some preliminary discussion would have taken place to determine whether legal arguments would be made regarding the legality of the searches and admissibility of evidence. In light of that discussion, further instructions from National Headquarters' legal department might have involved the assignment of a Department of Justice lawyer to represent the institution at the hearing. At the very least, the seriousness of the issue would have certainly warranted preparation of written legal argument and a reserved decision with fully developed reasons. Any appeal from that decision to the courts would then be based upon a proper evidentiary record and the Independent Chairperson's analysis of the relevant legal principles.

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