While the CSC officially claims a high level of reliability for the IONSCAN, there were several occasions at Kent Institution were I was informed by officers at the front gate that the IONSCAN was not being employed that day because it was not working properly and therefore could not be relied upon. However, quite apart from the reliability issue, there was a second level of prisoner criticism directed to the manner in which a positive "hit" was interpreted and the consequences which flowed from it. Not only was there significant variation in the practice at Kent but very different policies applied from one institution to another. At Kent, a visitor who registers a hit on the scanner may be denied a visit altogether or allowed to proceed to a screened visit. That determination is made by a correctional supervisor and prisoners maintain that different supervisors were more or less likely to turn a visitor away. Once a visitor had registered a series of hits on the scanner, the visitor's right to enter the institution would be reviewed by the visit review board. The practice of the visit review board in these cases where the visiting had previously been on an open visit basis, was to impose screened visits until such time as the visitor on three consecutive visits made clean passes through the IONSCAN. If during one of those passes a positive hit was registered, the screened status would be maintained until the visitor made six consecutive clean passes. If during that period a further hit was registered, then the visitor's right to enter the institution would be suspended for a period of at least 30 days. At other institutions the practice was far less flexible. In some cases after a second hit on the IONSCAN, a visitor would be barred from entering the prison for any kind of visit for periods of up to 3 months. In the absence of any national standards, the presence of the IONSCAN at the front gate of an institution had become a new site for the development of customary practices that varied from institution to institution.

On one level it is not difficult to understand the logic behind the Kent customary practice of going from open visits to screened visits, then requiring initially 3 clean passes, subsequently 6 clean passes and, if there is still a positive hit, a suspension of all visits. That logic is one of progressive discipline. The only problem with it is that the CCRA, and even the National Drug Strategy, are quite clear that restrictions and suspensions of visits cannot be imposed as a disciplinary measure, but only as a preventive measure. Paragraph 12 of the Commissioner's Directive on the National Drug Strategy clearly states that administrative consequences "are intended to manage the risk presented by the inmate and may be applied when there is a clear link to the use and/or trafficking of drugs". (CD 585, para. 12) If visitors, through a series of positive hits on the IONSCAN, demonstrate that they are in contact with drugs on a continuing basis and they are visiting a prisoner who either has a drug problem or is suspected of involvement in the introduction of drugs into the institution, then there is "a clear link to the use and/or trafficking of drugs within the institution". But this is only the first stage in the analysis. The law requires that the least restrictive measure be taken to manage the risk. If it is believed that there is a risk of a visitor introducing drugs into the Institution, placing that visitor on screened visits where they have no personal contact with any prisoner, effectively manages that risk without the need for the more draconian measure of suspending any type of visit. The conflict between the administrative practice based upon progressive discipline and the legal regime established by the CCRA and Regulations was reflected in a series of decisions involving Mr. Whitmore and his wife.

Mr. Whitmore had a long running set of grievances regarding the way in which the visit review board at Kent dealt with his visiting rights. In my account of "Deadly July", I described the deep resentment expressed by Mr. Whitmore to the segregation review board regarding the impact of his segregation in July, 1997 on his visits with his wife and son. The immediate impact of segregation was to cause all of his visits to be screened visits; but whereas some of the other prisoners had their open visiting status restored by the visit review board several weeks after their initial segregation, Mr. Whitmore's visits remained screened because he was the subject of a Special Handling Unit review. It was part of Kent's customary law that any prisoner subject to such a review was automatically placed on screened visits, without any individual assessment of whether an open visit with all or particular visitors would pose a risk to safety or security. The rationale for the rule was that prisoners at the SHU were placed on screened visits and therefore those who were being considered for placement in the SHU should be placed on the same regime; this is the same rationale that was given to justify placing such prisoners on a 3 on 1 status. Following the decision not to proceed with a SHU application against Mr. Whitmore, he had been returned to open visit status and resumed visits with his wife and son. Between August, 1997 and March, 1998, Mrs. Whitmore registered hits on the IONSCAN on 24 occasions; on 22 of these, she exceeded the threshold level for cocaine, on one occasion for heroin and on a third for THC. On 15 of the 24 hits, after being interviewed by a correctional supervisor, she was denied any visit; on one occasion following an interview she was allowed an open visit due to the IONSCAN reading being just over the permitted limit for cocaine; on two other occasions, following the interview, she was allowed screened visits again due to the fact that the reading was just over the limit for cocaine and THC; on a fourth occasion, although she was well over the limit for cocaine, she was allowed a visit because it was a chapel visit for drug and marital counselling with the prison chaplain. On five occasions, after exceeding the limit for cocaine, she left the institution before she could be interviewed by a correctional supervisor.

In November, 1997 Mrs. Whitmore was advised by the visit review board that because of the number of positive hits, her visits to Mr. Whitmore would be screened until she provided three clean consecutive passes through the IONSCAN. When she failed to do that she was further advised that she would remain on screened visits until she provided six consecutive clean passes. It was at this point in January, 1998, that Mr. Whitmore initiated a grievance in which he asked to see a written statement of policy authorising the imposition of six clean passes before open visits could be reinstated. He asserted that according to his understanding of what he had seen written about the IONSCAN, the only sanctions authorized for a positive hit were the refusal of that particular visit or that the visit take place behind screens; he had not seen anywhere authorization for requiring a visitor to give six clean passes before their opening visitor status could be restored. At the first level of the grievance procedure, warden of Kent Institution, in denying the grievance wrote to Mr. Whitmore as follows:

Your wife has a long and definite pattern of indicating on the IONSCAN. It was pointed out to you that she is not hitting at just over the threshold but in some cases at three times the threshold. This clearly indicates that your wife has been in direct contact with illegal substances.

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