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Visit Review and the National Drug Strategy

My observations of the visit review boards at Kent Institution provide further evidence of the powerful influence of prison customary law and its continuing persistence even in the face of competing principles set out in the CCRA. Prior to the CCRA, the usual consequence of being found in possession of drugs or under the influence of drugs, was a loss of open visits, over and above any formal disciplinary sanction imposed following a conviction in disciplinary court. Under the legal framework of the CCRA and the Regulations, restrictions on a prisoner's entitlement to open visiting cannot be justified solely by reference to a conviction of a drug-related disciplinary or criminal offence. The burden is on the institution to demonstrate that a suspension or restriction of the prisoner's right to visit is justified by reference to a risk which the prisoner or visitor would pose to the security of the penitentiary or the safety of any person and that no less restrictive alternatives are adequate to control the risk. This means that a prisoner who is found guilty of using drugs through a positive urinalysis, cannot for that reason alone have his visiting rights suspended or his open visits restricted to screened visits, unless the institution can show a rational connection between the visits the prisoner is receiving and his drug use. If the evidence is that the prisoner is receiving his drugs from other prisoners within the institution and not through his visits, then that rational connection cannot be shown and no restrictions are justified. That at least is the law according to the CCRA ; customary law is quite another thing.

Although there were cases I observed at Kent where the visit review boards correctly drew the distinction between the prisoner's drug use and the risk posed by open visits and acknowledged that restrictions on visiting were required to be justified by preventive rather than punitive objectives, there were many other cases where these distinctions were not reflected in the decisions. The prevalence of the punitive based customary law holding sway over the risk prevention basis of the CCRA increased with the announcement of the CSC Drug Strategy with its zero tolerance policies. Even though no amendments were made to the CCRA regarding visiting, and the policy documents announcing the drug strategy from National Headquarters did not suggest that visiting should be used in a punitive way as part of the War against Drugs, the interpretation of the mandate at the institutional level was in many cases a punitive one.

The National Drug Strategy was implemented through Commissioner's Directive 585 . The Directive pays particular attention to the importance of "administrative consequences" to be applied in pursuit of the policies of zero tolerance. Relevant provisions of CD 585 provide:

12. Administrative consequences shall be based on consideration of a persons' safety, institutional security and/or operational requirements. They are intended to manage the risk presented by the inmate and may be applied where there is a clear link to the use and/or trafficking of drugs.

13. Administrative consequences are not the same as disciplinary sanctions and shall not be used for purposes of punishment.

14. The institutional head or designate will decide which measures shall be applied. Determination shall be based on a review of the inmates' risk and needs as outlined in the Correctional Plan.

15. Intelligence information may be part of reasonable grounds for either administrative or disciplinary actions if the institutional head is satisfied that the source of the information is reliable and that the information is accurate. Intelligence about drug involvement shall not be limited to drug use, but shall include related activities such as drug dealing, muscling, extortion, the financing and facilitating in any way the introduction of drugs into an institution.

16. If an inmate has been charged or convicted of a drug-related offence in the institution or where there are reasonable grounds to believe that the inmate has been involved in drug-related activities, a reassessment of risks and needs shall be completed and a number of administrative consequences shall be considered. These consequences may include but are not limited to the following: . . .

(d) the restriction of open visits and/or other community contact including general social events, visits from family or volunteers;

(e) the restriction of private family visits;

(f) the denial of all visits

17. It is incumbent on the inmate to demonstrate to the institutional head or delegate that he or she is no longer involved in drug or alcohol activities and does not continue to constitute a risk to the security of the institution. This may include conclusive evidence of abstinence from drugs and alcohol, if available through urinalysis testing during a specified review period, and any other initiative on the inmate's part to resolve safety and/or security concerns.

18. All administrative decisions shall be reviewed thereafter on a periodic basis not to exceed 90 days. (CD 585 January 2, 1996) (now CD 585 2007-05-08 paras. 15-21)

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