The following cases, drawn from my observations of the visit review
board at Kent and the files of Prisoners' Legal Services, illustrate the
influence of the National Drug Strategy on institutional visiting decisions
and the very broad interpretation which the visit review board gave to
the concept of risk under prison customary law, compared to a legal analysis
derived from the framework of the CCRA.
Mr. Jones was transferred from Mission Institution to Kent following
allegations of drug involvement. Prior to the transfer, his right to have
open visits with his visitor, Ms. Wilson, was suspended for six months.
The visit review board at Kent upheld that suspension and it was that
decision which Prisoners' Legal Services sought to have reviewed. The
facts giving rise to the suspension and the argument presented by Prisoners'
Legal Services are set out in a letter of May 2, 1996, written by Ms.
On December 20, 1995, Ms. Wilson attended at Mission
Institution to visit Mr. Jones. She was asked to submit to a strip search,
to which she consented. She was advised that the basis for this request
was that the Institution had informant information indicating that she
would be bringing drugs into the Institution. No contraband was found
during that search. Ms. Wilson further advises that she was not asked
to submit to a body cavity search, nor were the R.C.M.P. involved in any
Prior to leaving the Institution, Bull, the drug detector dog, examined
her purse and her vehicle. Apparently, Bull indicated an interest in her
compact case contained within her purse and in the contents of her vehicle's
glove box. In addition to two (2) boxes of condoms and a small bottle
of talcum powder, which Mission Institution later described to Ms. Jones
as "drug paraphernalia", the glove box also contained sundry other cosmetic
items, such as a toothbrush, toothpaste, nail polish and hand cream. Ms.
Wilson advises that it was initially her understanding that her visits
had been suspended because of her alleged possession of "drug paraphernalia",
but she has subsequently been advised that, as a result of the dog's reaction
to her cosmetic items, that it had been concluded those items had been
recently contaminated by narcotics.
Section 71 of the Corrections and Conditional
Release Act indicates that prisoners are entitled to have reasonable
contact with visitors, "subject to such reasonable limits as are prescribed
for protecting the security of the penitentiary of the safety of persons".
Section 91 of the Regulations indicates that a visit may be refused or
suspended where there are reasonable grounds to believe "that, during
the course of the visit the inmate or visit would jeopardize the
security of the penitentiary of the safety of any person or plan or commit
a criminal offence; and that restrictions on the manner in which the visit
takes place would not be adequate to control the risk". It further states
that where a refusal or suspension is authorized, it may continue for
as long as the risk continues.
In my submission, there is no evidence to substantiate a conclusion
that Ms. Wilson presents a continuing risk, during
the course of her visits, to jeopardize the security of the penitentiary
or the safety of any other person.
Even if one was to accept the interpretation of Bull's reactions as
totally infallible, which I submit is not reasonable to do, this would
only indicate that the items contained in Ms. Wilson's purse and vehicle
glove box had recently been in the near proximity of narcotics. In an
effort to identify precisely which narcotics Bull indicates an interest,
I contacted [the IPSO] who advised Bull has been trained to respond to
methamphetamine, any cannabis product, cocaine and any of its derivatives
and heroin and any of its derivatives, including codeine, which, of course,
is a legal drug available either "over-the-counter" or, in its stronger
form, by prescription. When Bull indicates an interest in an odour, there
is no way to determine from which of the above substances it originated
and, in particular, whether it was an illegal or legal substance.
It is noted that those items in which Bull indicated an interest are
not ones to which only Ms. Wilson has access. In fact, she advises that
her teenage daughter and friend were the ones who placed the condoms in
the glove box. Further, the items in question were located beyond the
institutional check point, which clearly indicates that Ms. Wilson had
no intention, nor made any effort, to bring them into the Institution.
Even if one accepts the premise that the items in Ms. Wilson's purse
or vehicle had been in near proximity to one of the target substances,
where is the evidence that she in fact was in possession of such a substance,
that she brought it to the Institution and that she intended (or intends
in the future) to introduce such a substance in the Institution? I submit
that no such evidence to that effect has been presented.
In the absence of such evidence, I further submit that there were no
reasonable grounds to initially conclude that during the course of a visit,
Ms. Wilson would jeopardise the security of the penitentiary or the safety
of any person, nor that she presents any continuing risk to do so now.
I trust that you will conclude similarly and restore her visiting privileges
forthwith. (Letter from Prisoners' Legal Services to Kent Visit Review
Board, May 2, 1996)
There was no formal written response to this letter but the decision
of the visit review board was that the suspension of all visits was to
be maintained until the expiry of the six month period and that thereafter
any visits would be on a screened basis pending a further review. The
issue was not pursued by Prisoners' Legal Services because Mr. Jones was
released from prison on his statuary release date.
The letter from Prisoners' Legal Services raises a number of issues
regarding the visit review process. The letter articulates the legal criteria
for suspension of visits and argues that on the facts of this case, the
institution had not justified the suspension; by contrast, in neither
the original decision by the Mission visit review board imposing the suspension,
nor in the subsequent decision of the Kent board to maintain it, was there
any equivalent reasoned argument for the suspension. Even if the institution
believed that the evidence had demonstrated that the visitor posed a risk
of introducing drugs into the institution, there were no reasons given
to justify complete suspension of visits rather than requiring that the
visits be screened. Yet, CD 770 specifically states that "suspension of
visiting rights can only be imposed where the security of the penitentiary
is at significant risk, and there is no less restrictive alternative available".
(CD 770, para. 20) Given that during a screened visit the visitor has
no physical contact with the prisoner and therefore there is no opportunity
to pass drugs, why is not a screened visit a less restrictive alternative
to a complete suspension of visits, unless of course the purpose is a
punitive one disguised as an "administrative consequence"?
Both of these issues raised by the Jones case, were recurring themes
during my observations of the Kent visit review board in the summer of
1998. These observations revealed most of the same problematic features
that I had initially observed in 1994. For example, at the meeting of
the visit review board on June 16, 1998, a number of prisoners who had
been transferred from Matsqui Institution had their applications for open
visits deferred because their IPSO files had not yet been received at
Kent. Because the assumption was that most transfers from Matsqui were
drug related, the visit review board would not authorize open visits until
these files had been reviewed. Mr. Culbert, the Kent IPSO who sat on the
visit review board, advised me that, as in 1994, it usually took about
a month to have the files transferred and on some occasions it was even
longer. Meanwhile, the transferred prisoner, regardless of his visiting
status at Matsqui, was restricted to screened visits until the IPSO files
could be reviewed. In 1998, as in 1994, there was no less resort to emergency
transfers from Matsqui to Kent but there was no more sense of urgency
in expediting the transfer of files required to make crucial decisions
regarding a prisoner's visiting rights. As in 1994, the information contained
in the preventive security files was often determinative of the outcome
of the case. The IPSO's assessment of that information and his assertion
that it was based upon reliable sources was accepted uncritically by the
board as the factual underpinnings for the decision. As in 1994, the discussion
of most cases took place in the absence of the prisoner and therefore
without the benefit of the prisoner's or his visitor's explanation of
what were often disputed facts. In several cases where, following a suspension
or restriction of visits, a visitor had written to the visit review board
with their explanation of an alleged event, that explanation was summarily
dismissed on the basis of information in the preventive security files.
In the rare case in which a prisoner was present and made representations
it made no difference to the ultimate result.
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