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The relevant legal question which needed to be answered to justify restrictions on open visiting between Mr. Whitmore and Mrs. Whitmore, was whether the institutional head believed on reasonable grounds that a barrier was necessary for the security of the penitentiary or the safety or any person and no less restrictive measure is available (section 90(1) CCRA Regulations ). To go beyond limiting visiting to screened visits and justify a suspension of all visiting, it is necessary that the institutional head have reasonable grounds to believe that "during the course of the visit, the inmate or visitor would jeopardize the security of the penitentiary or the safety of any person or plan to commit a criminal offence and that restrictions on the manner in which the visit takes place would not be adequate to control the risk." (Section 91(1) of the Regulations) As in the Jones case, the reasons given by the Kent visit review board and in the various levels of responses to Mr. Whitmore's grievance did not provide a reason beyond the conclusionary statement that Mrs. Whitmore's visiting presents an unacceptable risk to the security of the Institution. If the history of Mrs. Whitmore's hits on the IONSCAN can be taken to demonstrate that she was either using or was in close association with those who were using cocaine, absent grounds to believe that she is involved in the introduction of this or any other drug into the Institution, how does her use of drugs outside of the Institution establish reasonable grounds to believe that a visit without a barrier would pose a risk to the security of the Institution? The Commissioner's Directive on the National Drug Strategy indeed requires as a prerequisite to administrative consequences that there be "a clean link to the use and/or trafficking of drugs" ( CD 585 , para 12). Nowhere in the documentation was there any effort to make this clear link between Mrs. Whitmore's involvement with cocaine as demonstrated by the hits on the IONSCAN and the use of or trafficking in cocaine by her husband as a result of her activities at visits.

But even if the series of hits, in the context of other recent hits, established a threshold of reasonable grounds to believe that Mrs. Whitmore may be involved in the introduction of drugs, the least restrictive measure to manage this risk would be allowing an open visit under direct supervision of a V & C officer to ensure that no drugs were passed. While this could control the risk, there is an operational problem in choosing this as the least restrictive measure; because at any one time there are usually only two V & C officers on duty, requiring that one of them at all times have the Whitmores under constant observation would seriously interfere with their responsibilities towards other visitors. Let it therefore be acknowledged that a screened visit was the least restrictive measure to manage the risk. If this risk must be evaluated on a visit by visit basis and the risk is heightened by a positive hit on the IONSCAN, what is the justification under the IONSCAN policy for turning the visitor away where there is such a positive hit. Surely however high Mrs. Whitmore registers on the IONSCAN, she poses no risk to the security of the Institution if she is behind a screen visiting Mr. Whitmore. The only exception could be if she was actually under the influence of drugs and her behaviour was likely to be disruptive even in the context of a screened visit.

It is clear therefore that the IONSCAN policy which authorizes a visitor being turned away from a visit if they register a positive hit cannot be justified as the least restrictive measure to manage the risk that drugs might be introduced into the Institution; it is directed at sanctioning the visitor's association with drugs outside of prison. That is not a legitimate ground under the CCRA or the Regulations for restricting visits. A positive hit on the IONSCAN in association with other sources of information could constitute reasonable grounds to believe that a visitor may be introducing drugs into the Institution, but the positive hit in itself is not such reasonable grounds.

There is a similar break in the chain of legal reasoning necessary to justify the imposition of a requirement that a visitor provide a series (whether three or six) of clean consecutive passes through the IONSCAN in order to have their open visitor status restored. Where a visitor, such as Mrs. Whitmore, has a history of positive hits, while it may provide some evidence that she is associated with the drug culture, it does not necessarily elevate the risk that she poses of introducing drugs into the Institution through visits. It does suggest that she may have a drug problem and indeed this was something she readily acknowledged through her willingness to engage in counselling with the Institutional chaplain. If it can be argued that her risk is elevated by a positive hit that may justify the imposition of a screened visit on that occasion, that does not provide a justification for requiring that she give a series of clean passes before she can return to open visiting status. That measure is clearly designed to deter her drug use rather than manage the only risk that is relevant under the CCRA, which is the risk that she may introduce drugs into the Institution or encourage her husband's use of drugs. Nowhere in the written documentation was there any substantiation of either of these risks.

The final administrative measure taken against Mrs. Whitmore, the complete suspension of her visits for thirty days is even more difficult to justify legally under the CCRA. Consider again the facts; between August, 1997 and March, 1998 Mrs. Whitmore had 24 positive hits on the IONSCAN which led to the imposition of the requirement that she give three and then six clean consecutive passes before being allowed to resume open visits. She then completed two months of open visiting with no positive hits. In late May she gave two positive hits for cocaine which resulted in complete suspension of all her visiting for thirty days. This might make sense if the purpose of the decision is to "up the ante" as part of progressive discipline, in which the sanction for the next offence is a step above the sanction for the last offence (the theory behind sentencing in both criminal courts and the disciplinary courts), however, this is not the basis for restricting visits authorized in the CCRA nor in the Commissioner's Directive; that basis is unequivocally the prevention of risk to the safety or security of the Institution which requires establishing a clear link between the visit and the introduction or use of drugs. On this preventive basis and on the Institution's own prior argument that the management of her risk required that she be placed on screened visits until she gave six clean consecutive passes through the IONSCAN, why did her registering two positive hits at the end of May, 1998 suddenly elevate her risk so as to require complete suspension of all her visits. The written notification to Mrs. Whitmore advising of the suspension provides no reasons beyond the mere assertion that it is necessary because she "presents and unacceptable risk to the security of this Institution". In my judgement the imposition of a thirty day suspension on Mrs. Whitmore's visiting with her husband was not in accordance with the law because it was not the least restrictive measure available to manage the risk her visits presented.

The visit review board's interpretation of "the least restrictive measure" was reflected in another case where drugs were not involved. In this case, Mr. Chow at the termination of his private family visit was searched in accordance with normal procedures, and was found to be in possession of a number of items that included a chocolate bar, a bottle of tobasco sauce, a garlic clove, a bottle of A-1 steak sauce and 2 packets of cigarettes. The food items were part of his private family visit food parcel which prisoners order directly from a local super market and under the rules are not to be brought back into the institution; the two packets of cigarettes were not issued by the institution and it was alleged, therefore, that they had been brought in by his visitor. Under institutional rules, prisoners may only purchase cigarettes from the institutional canteen and may not obtain packets or cartons from their visitors. Mr. Chow had been charged with possession of unauthorized items. At the visit review board, V & C staff stated that Mr. Chow had been told on previous occasions that he could not receive cigarettes from his visitor but he might not have known that he was not allowed to bring back food items into the institution from a PFV. The V & C staff further reported that at the end of the visit Mr. Chow claimed that there was a misunderstanding about the time when the visit was supposed to terminate, had been very disrespectful to staff, and had left the family visiting trailer in a mess. They recommended that, in accordance with previous precedents established by the visit review board, that Mr. Chow's private family visiting be suspended for three months; furthermore, that for the same period he should be placed on screened visits. There was some further discussion that in previous cases the decision had been made to suspend all visiting for three months. The decision of the acting unit manager was that suspending private family visits and placing Mr. Chow on screened visits for three months was the least restrictive alternative.

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