From Untrammelled Discretion to a Charter-Driven Regime

Most of the prisoners I spoke to at Kent after the televising of the videotape from the prison for women were angered by the treatment visited on their sisters. They were well aware, however, that the humiliation and degradation they too experienced during strip searches did not register on the seismograph of public opinion. The issue of respect for human rights of all prisoners -- men and women -- engaged by the practice of strip searching, emerged in my study at Kent Institution and became the subject of a further round of intense scrutiny, albeit far less public than that which followed the events at the Prison for Women.

The scant recognition of prisoners' rights under the pre-1992 Penitentiary Act is nowhere better reflected than in the total absence of provisions addressing the power to search. It was left to the Penitentiary Service Regulations to fill the void; they did so by casting the power in the broadest possible terms, authorizing a staff member to search "any inmate or inmates, where a member considers such action reasonable to detect the presence of contraband or to maintain the good order of the institution" (S. 41(2)(c)).

The Correctional Law Review Working Group, established in 1983, recognized that the open-ended power to search allowed by the Regulations did not meet the standards and protections the Supreme Court of Canada had established in some of its first decisions on the Charter of Rights and Freedoms.

The Supreme Court of Canada has stated that the purpose of constitutionalizing the right to be secure against unreasonable search or seizure is to protect individuals from unjustified state intrusion upon a reasonable expectation of privacy. In effect, the court has established a minimum privacy threshold to be protected by the Charter. According to the Supreme Court of Canada, section 8 protects "persons not places" and the Charter then applies where there is a reasonable expectation of privacy, rather than being limited to the more narrow protection of property or privacy interests traditionally associated with a dwelling.

It is clear that while incarcerated a person does not have as great an expectation of privacy as he or she would have in a dwelling house or private office. Nevertheless an inmate retains an expectation of privacy based on what is reasonable in the circumstances. The test of what is reasonable in the circumstances is not necessarily limited by present penitentiary conditions, under which inmates retain little privacy. Such deprivations of privacy are arguably a "functional prerequisite to the institutionalizing operation, deriving from the social organization of prisons and not from the legal status of persons found in them" . . .

It should be remembered that today the right to privacy is recognized as fundamental in Canadian society, and protection of privacy is being accorded increased legal safeguards and protections. In line with this approach, every effort should be made to provide an inmate with as much privacy as possible.

A further reason for protecting an inmate's reasonable expectation of privacy relates to the statement of purpose and principles of corrections, which recognize the importance of a safe and healthful environment in encouraging offenders to prepare for successful reintegration into the community. A reasonable expectation of privacy is an element of the kind of institutional environment which is conducive to this goal. Moreover, social scientists studying the escalation of violence in prisons have suggested that dealing with this problem through increases in search and seizure may be counterproductive. Increases in search may lead to increased violence by interfering with whatever amount of privacy an inmate may reasonably expect. Without legal protection, an inmate's rights in this regard may be thoroughly eroded and at the expense, rather than the benefit, of prison security. (Working Paper No. 5 at 65-66)

In its decision in Hunter v. Southam (1984) 2 S.C.R. 145 the Supreme Court, having recognized that section 8 of the Charter was to protect individuals from unjustified state intrusions upon their privacy, set out the normal precognitions for a reasonable search. These are that, where it is feasible to obtain prior authorisation, such authorisation is necessary, usually in the form of a valid search warrant; the person granting the authorisation must be able to assess the conflicting interests of the state and the individual in a neutral and impartial manner; and that there must be objective, consistent standards identifying the point at which the interests of the state counter-prevail over the interests of the individual. In the context of subordinating the expectation of privacy to the needs of law enforcement, the standard is reasonable grounds to believe that there is evidence of an offence in the place to be searched, where such evidence is established upon oath. The Supreme Court recognized, however, "where state security is involved, or where the individual's interest is not simply his expectation of privacy, as, for instance, when the search threatens his bodily integrity, the relevant standard might well be a different one." Using Hunter v. Southam as a starting point, the Correctional Law Review articulated the nature of the Charter -driven inquiry required in the context of prison searches:

The issue then is the degree to which the safeguards and protections afforded individuals outside prison must be applied within prisons. This may be restated in terms of whether the protections provided by the Charter are limited either through the meaning of "unreasonable" in section 8 or through the limitation clause in section 1 of the Charter . . . . Section 8 wording indicates that everyone, including an inmate, has the right to be secure against unreasonable search or seizure. (at 68)

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