There was, however, a new development which had taken place between 1994 and 1998. In December, 1995, the CSC, as part of its National Drug Strategy, introduced a pilot project in several institutions to use an IONSCAN to test visitors' personal belongings for traces of illegal drugs, which would constitute evidence of recent contact with those drugs. Kent was the first institution in the Pacific Region to have the IONSCAN installed. These machines have subsequently introduced into other institutions and the IONSCAN has quickly become an important weapon in the on-going War on Drugs. A "hit" on the scanner by a visitor can result in a series of "administrative consequences" leading all the way to a complete suspension of visiting rights.

The IONSCAN is a device using ion mobility spectrometry to detect drug particles on items submitted for analysis by the scanner. The unit is installed at the front gate of the penitentiary, and like a metal detector, is classified as a non-intrusive search method. The search procedure is carried out by asking the visitor to wipe personal possessions with a cloth or by using the suction device on personal possessions. The first method is used more often because it can be done quickly. The sample is then given to the equipment operator for analysis and a test is run. The IONSCAN can detect traces of different drugs and a threshold limit is established for each drug, for example heroin, cocaine and THC. Institutional standing orders at Kent are modelled on similar documents developed in National Headquarters and first introduced in eastern Canada. The objective of the program as set out in the standing order is "to promote and further the safety of institution and public by detecting the use of illicit drugs, such as narcotics and other banned substances in order to dissuade offenders from using these drugs and/or trafficking in them." Other provisions set out the procedures to be adopted and the discretionary decisions which flow from a hit.

19. Staff may request visitors to submit to a search of their clothing, such as coats, raincoats or other outerwear, and/or their personal possessions:

(a) when visitors enter the Institution;

(b) visitors who refuse to submit to a search must not be allowed to enter the Institution and they will be asked to leave penitentiary property unless they are persons listed in Annex of Commissioner's Directive 575 (legal counsel for example). These persons will be allowed to communicate with their inmate clients by means of a non-contact visit and/or under the direct supervision of a staff member;

(c) if the drug level detected is not above the lower threshold, visitors may proceed with their regular visits;

(d) in all cases where the level detected is over the minimum threshold, the visitor will be requested to wait and during the day shift, the preventive security officer, the unit manager or the person designated by the institutional head and the V & C officer will be notified. During the evening shift, the correctional supervisor will be notified. In cases of this kind, one of the following decisions will be made:

(i) authorization to enter if the unit manager, the person delegated or the V & C staff (during the day shift), or the correctional supervisor (during the other shifts), are convinced that the visit will not present any risk to the safety of the institution. In such cases, visitors will have to provide a valid explanation for the positive finding and/or consent to a more complete search which will eliminate all suspicion;

(ii) refusal of a contact visit and authorization for a non-contact visit (on condition there is room in the V & C area)

(iii) the visitor is requested to leave the institutional premises . . .

(viii) in cases where the IONSCAN analysis indicates the presence of a banned substance in quantities above the threshold authorized, it is essential that the unit manager or authorized person, the correctional supervisor, IPSO or the V & C officers, question the visitor or visitors and consider each time, in an honest and thorough manner, the above possibilities in the order in which they are presented. A report must also be completed about each case. (Institutional Standing Order "Spectrometry using the IONSCAN")

If the IONSCAN has come to be seen by prison administrators as an important part of a front line defensive bulwark in the war against drugs, it has come to be seen by prisoners as the latest demonstration of the arbitrary exercise of discretionary authority. The prisoners' criticisms are founded on several bases. The IONSCAN is a highly sensitive piece of equipment, the reliability of which is subject to a number of variables including the procedures used by the person conducting the test. Prisoners argue that the institution claims a degree of reliability for the IONSCAN that is not warranted under the operating conditions that exist at the front gate. In a court challenge brought by two visitors to Leclerc Institution in Quebec, they argued that the standing order authorising the use of the IONSCAN gave excessive discretion to the authorities in view of the unreliability of the IONSCAN equipment as it was used at Leclerc Institution. The challenge was dismissed by the Federal Court on two grounds. The first was that there was a difference of opinion in the expert evidence submitted by the visitors and by the correctional service as to the reliability of the IONSCAN and therefore the applicants had not established a sufficient factual basis to argue that the IONSCAN constituted an "unreasonable search" within the section 8 of the Charter of Rights and Freedoms. The second basis was that for there to be an unreasonable search within the meaning of section 8, there must be a reasonable expectation of privacy of the person subject to the search. Following other Canadian court decisions dealing with the low expectation of privacy which prisoners had in a prison setting, the court held that visitors had no higher expectation of privacy than the prisoners they visited and in view of the existence of serious problems from the bringing of drugs into federal prisons and the significant interest which the Correctional Service of Canada had in preventing drug use and drug related violence, there was no reasonable expectation of privacy which could give rise to a breach of section 8 of the Charter ( Gagnon v. Leclerc Institution [1997] F.C.J. No. 1613 )

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