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The general scheme proposed by the Correctional Law Review -- defining different types of searches and linking both the criteria and procedures for each type of search to the degree of intrusiveness involved -- has been incorporated into the CCRA. However, the strong recommendation of the C.L.R. that all the search provisions be placed in the legislation itself and not left to regulations, was not followed. As in the case of the provisions dealing with the disciplinary process, the provisions for search are divided between the Act and the Regulations in a manner which has little to commend it from a perspective of either the staffs' or prisoners' understanding of the scheme as a whole. As a result, an examination of the search powers of the CCRA requires a splicing together of the Act and the Regulations, an exercise that could have been easily avoided.

In Appendix C you will find the main provisions in the CCRA, the Regulations and the Commissioner's Directives that comprise the code on prison searches. As you will quickly discover, they take some digesting. In accordance with the C.L.R.'s recommendations, the CCRA distinguishes both between routine administrative and investigative searches and also between types of searches based upon the degree of intrusiveness. Thus, s. 46 of the CCRA distinguishes between "non-intrusive searches", "frisk searches", "strip searches", "body cavity searches" and "urinalysis"; sections 49 and 53 provide for emergency and exceptional searches. The "prescribed manner" for carrying out the various kinds of searches is covered by the CCR Regulations. The particular provisions of the legislative regime implicated by events at Kent in 1998 were s. 53 of the CCRA and ss. 45 and 46 of the CCR Regulations . Section 53, which deals with exceptional powers of search, provides:

(1) Where the institutional head is satisfied that there are reasonable grounds to believe that

(a) there exists, because of contraband, a clear and substantial danger to human life or safety or to the security of the penitentiary, and

(b) a frisk search or strip search of all the inmates in the penitentiary or any part thereof is necessary in order to seize the contraband and avert the danger, the institutional head may authorize in writing such a search, subject to subsection (2).

(2) A strip search authorized under subsection (1) shall be conducted in each case by a staff member of the same sex as the inmate.

Sections 45 and 46 of the CCR Regulations set out the prescribed manner for carrying out strip searches:

45. A strip search shall consist of a visual inspection of the person by a staff member, in the course of which inspection the person being searched shall undress completely in front of the staff member and may be required to open the person's mouth, display the soles of their feet, run their fingers through their hair, present open hands and arms, bend over or otherwise enable a staff member to perform a visual inspection.

46. A strip search and a body cavity search shall be carried out in a private area that is out of sight of every other person except for one staff member of the same sex as the person being searched, which staff member is required to be present as a witness unless, in the case of a strip search, the search is an emergency as described in subsection 49(4) of the Act.

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