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This is consistent with the fundamental principle that an inmate retains rights except for those necessarily limited by incarceration. The fact of being imprisoned cannot alone be enough to alter the individual's right to privacy, dignity and personal security. The question then becomes whether a particular search or seizure, or search or seizure provision, intrudes on an inmate's reasonable expectation of privacy.

It is obvious that the state would have a great deal of difficulty in operating a secure prison system if all search and seizure protections of open society, such as a requirement for a search warrant, were to be imposed before every search of an inmate. There is a strong need for the state's conduct in the prison context to be regulated under a different, more flexible standard. (Working Paper No. 5 at 68)

That a more flexible standard was constitutionally permissible was examined by the Supreme Court of Canada four years after Hunter in a case which involved a s. 8 challenge to the powers of Customs Officers to search at the border under the Customs Act. In the Simmons case the Supreme Court, while recognizing that the Hunter safeguard should "not be lightly rejected", held, in the context of customs searches, that it was appropriate to relax the Hunter standards. The Court ruled that the degree of personal privacy reasonably to be expected at customs was lower than in most other situations; therefore the provisions of the Customs Act, which permitted routine questioning by custom's officers, searches of luggage, frisk or pat searches and the requirement to remove in private articles of clothing as would permit investigation of suspicious bodily bulges, were not unreasonable within the meaning of section 8 of the Charter. The significance of the Simmons case was that the Court recognized that in determining whether particular legislative provisions complied with section 8, there was a sliding scale of reasonableness which corresponded with the degree of intrusion that particular searches involved. Thus, a routine search of luggage or passing through a scanning device was at one end of the spectrum, involving little in the way of intrusion; however, a strip search was considerably more intrusive on personal dignity and at the far end of the spectrum lay a body cavity search. Depending upon where a particular search lay on this spectrum of intrusion, the requirements for prior authorisation and threshold standards to justify the search must be proportionate to the degree of intrusion ( R. v. Simmons, [1988] 2 S.C.R. 495 ) .

In the case of the strip search in issue in Simmons, the Customs Act required that the customs officer have cause to suppose that the person searched had goods subject to duty or prohibited goods, secreted about his or her person; it also provided that before any person can be searched, the person may require the officer to take him or her before a police magistrate or Justice of the Peace or before the chief customs officer, who shall, if he or she sees no reasonable cause for search, discharge the person. These provisions, although falling short of the Hunter v. Southam safeguards, were held by the Supreme Court to be reasonable and consistent with s. 8 of the Charter, having regard to both the lower expectation of privacy at border crossings and the degree of intrusiveness of the search.

The Correctional Law Review suggested that the Simmons approach to border searches provided a useful precedent for constructing an analytical framework for prison searches:

The sliding scale of reasonableness adopted in the border search cases shows that there exists a "middle ground" between, on the one hand, saddling the government with an unrealistically high standard of proof, such as individualised reasonable grounds to believe, and on the other, allowing officials unfettered discretion to conduct searches. The sliding scale of reasonableness that balances the interests of the state and the individual and that recognizes how these interests change in varying circumstances has been adopted in the proposed procedures for search of inmates.

A major consideration in relying on a sliding scale of reasonableness is the precise type of search at issue. There is a basic distinction between "investigative" searches and "administrative" or routine searches or inspections. Investigative searches are those which most closely resemble a criminal law enforcement search. They are based upon reasonable grounds to believe or suspect that an offence has been committed. An investigative search is one which would be performed, for example, where there is reason to believe a particular inmate is concealing contraband in a particular place.

Administrative searches, on the other hand, are based on ongoing general institutional security needs and are performed on a routine basis. They are not based on grounds of suspicion or belief that an offence has been committed, nor are they directed at a particular inmate. An administrative search may consist, for example, of a personal search performed on a routine basis on every inmate entering or re-entering an institution in order to prevent the introduction of contraband. It is this type of search for which a more flexible standard may be necessary. ( Working Paper No. 5 at 67-71)

In reviewing the pre-1992 Penitentiary Service Regulations, the C.L.R. noted that section 41(2)(c), by virtue of "the extraordinarily broad discretion" it confers, "coupled with a weak and vague test . . . creates great potential for abuse", a problem "further exacerbated by the lack of post-search accountability mechanisms, such as reporting requirements. ( Working Paper No. 5, pp. 72-3) To replace the over-broad and under-controlled provisions of the Penitentiary Service Regulations, the C.L.R. in its proposals for new correctional legislation set out specific criteria for different kinds of searches, depending upon the degree of intrusiveness, requirements for prior authorisation for other than routine and administrative searches, coupled with requirements that receipts be given when things are seized and that reports be filled out when more intrusive types of searches are conducted. The C.L.R. also proposed that the search revisions be set out in the legislation itself, rather than be left to regulations. They gave as the rationale:

Searches performed in the course of administering and enforcing legislative schemes as diverse as the Criminal Code and the Migratory Birds Convention Act are provided for in the relevant legislation, and the search of inmates in penitentiaries should not constitute an exception to this rule. The security element in penitentiaries does not provide a convincing reason for exemption as the Criminal Code and the Official Secrets Act, as well as other federal statutes, involve matters deemed critical to public safety and security, and yet contain detailed search provisions. Rules governing search and seizure should be rationally set out in the legislation itself, as in the case of all other federal search powers. ( Working Paper No. 5 at 73)

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