The Body Cavity Search on April 27, 1994

The CCRA authorizes a body cavity search only where the institutional head is satisfied that there are reasonable grounds to believe the prisoner is carrying weapons, drugs or other illegal objects in a body cavity, where a medical practitioner agrees to conduct the search and then only if the prisoner consents ( CCRA s. 52). The critical issue as identified by Madam Justice Arbour was whether the prisoners truly consented to the cavity searches which were carried out by Dr. Pearson. The evidence before the Inquiry showed that the prisoners who consented to the body cavity search received showers, a security gown and had their restraints removed. A member of the Citizens Advisory Committee testified that it was his understanding that the women who signed the consents did so in exchange for showers and that they were also given cigarettes. The two prisoners who testified before the Inquiry gave similar evidence. On this issue of the reality of the women’s consent, Madam Justice Arbour had this to say:

The absence of a culture respectful of individual rights is perhaps nowhere more disturbing than on this issue. A body cavity search is the most intrusive form of searching a person, short of surgical intervention. As a result, the law requires that it be performed only pursuant to a request in writing of the warden, that it be performed by a qualified medical practitioner, and the consent of the person subjected to the search must be obtained. The concept of informed, free and voluntary consent is well-established in law, particularly in criminal law. Threats or inducement held out by a person in authority would clearly vitiate the voluntariness requirement that is implicit in the notion of consent. Yet in this case, many CSC witnesses who testified on this issue expressed the opinion that an offer of cigarettes, shower, or the removal of restraints to follow the body cavity search did not affect the validity of the consent that was given. In some cases, it was felt that since the law provided the Correctional Service with the option of placing the inmate in a "dry cell," that is a cell without plumbing fixtures, in order to retrieve contraband which may have been secreted in a body cavity, and since the placement in a dry cell was not contingent on the consent of the inmate, any inducement to the body cavity search was acceptable as providing a better and quicker alternative . . .

There can and should be no ambiguity as to what the legal requirements of a valid consent are. In light of all the evidence presented in this case, I find it inconceivable that such a profound deficiency in the understanding of Correctional Service officials as to basic legal requirements could be remedied simply by the issuance of a more detailed directive from the commissioner, even if coupled with some training session. It seems to me that the imparting of the required legal culture can only come from the devising of a series of sanctions that bring home to officials the consequences of disregarding, even inadvertently, the basic mandates of the law . . .

This is therefore a case where the legal requirements were known, but very improperly understood and appreciated. Once again, this is an instance where the law is viewed as easily superseded by the "moral judgment" that an alternative is preferable, particularly if this is seen to be consistent with security concerns . . .

Even accepting the evidence of Dr. Pearson that the searches were actually performed on a blanket and not on the bare floors of the cell, to an outside observer, the circumstances under which these intrusive procedures were performed are appalling . . .

Since the consent of the inmate is required to a body cavity search, it follows that it cannot be performed on a "emergency" basis. Therefore, there should be no objection to providing the inmate with the right to seek legal advice prior to consenting to the search, and to require that, since the search is to be treated as a medical procedure, it be performed in suitable non-emergency medical surroundings. I see no need to recommend that it be performed in a hospital, however, it should be performed in an environment in which a doctor would feel comfortable performing consensual, non-emergency examination or intervention. A cement floor would not qualify. (Arbour at 93-95)

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