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Balancing Prisoners' Dignity and Staff Safety

The events stemming from the March exceptional search -- the Hanson grievance and lawsuit, the suspension of the ERT leader and the national investigation -- generated a great deal of discussion both at Kent and in Ottawa on the legality of the search procedures. There was no issue as to the lawful justification for conducting the search; there can hardly be more compelling grounds than a reasonably grounded belief that a gun and ammunition are in the possession of prisoners in a maximum security institution. Neither were there procedural irregularities in the advance written authorization or the post-search report sent to Regional Headquarters. The issue was whether the strip search had been carried out in conformity with the law and with the policy expressed in the Commissioner's Directive that "searches shall always be conducted with due regard for privacy and for the dignity of the individual being searched" (C.D. 571, January 24, 1997, para. 4, replaced by C.D. 566-7 , October 17, 2001, para. 2).

The case made by the unit managers was that s. 46 of the CCR Regulations, while providing that a strip 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," specifically provides for an exception where "in the case of a strip search, the search is an emergency." The situation in March was such an emergency, and the exceptional measures taken could therefore be justified. Mark Noon-Ward forcibly made the point that if the RCMP or another police ERT were required to conduct strip searches of suspects where it was believed one might have a loaded firearm, they would ridicule the suggestion that the search team consist of no more than two persons. Indeed, a police ERT would ridicule the idea that they go into such a situation without weapons. For only two officers to conduct a strip search of a prisoner who might have a gun on his person or within close reach would seriously compromise the safety of staff. Surely, said Officer Noon-Ward, in a case where there was a conflict between protecting the safety of staff and preserving the privacy and dignity of prisoners, the CCRA would support preference being given to staff safety. This is not an argument lightly dismissed. Each member of the six-person ERT was assigned specific responsibilities. Conducting the strip search in each prisoner's cell was problematic both because there was not enough room for all team members and because the metal in the door frames would not permit the effective operation of the metal scanner. Having the prisoner proceed naked to the common area not only enabled the ERT to assume full control of the situation but, by virtue of the proximity of the armed officer in the control bubble, ensured maximum protection for staff if the prisoner offered resistance.

What then does the law say in response to the Kent administrators' argument that it is justifiable to use more than two officers to conduct a strip search where the safety of staff requires their presence? Section 46 has, as the Kent administrators pointed out, a built-in exception; however, it is very specific. It provides for an exemption from the requirement that a strip search be carried out of sight of every other person except for one staff member of the same sex, where the search is an emergency "as described in subsection 49(4)". When we go to s. 49(4) what we find is one of the more torturous sections of the CCRA . It is instructive to review the section to understand the difficulties a staff member might face in trying to interpret this provision without some legal help. It provides:

49(4) Where a staff member

(a) satisfies the requirements of paragraph (3)(a), and

(b) believes on reasonable grounds that the delay that would be necessary in order to comply with paragraph (3)(b) or with the gender requirement of subsection (3) would result in danger to human life or safety or in loss or destruction of the evidence, the staff member may conduct the strip search without complying with paragraph (3)(b) or the gender requirement of subsection (3).

In order to fully understand this section, the reader is required to go back to s. 49(3). The net result of this set of provisions is the following: where a staff member believes on reasonable grounds that an inmate is carrying contraband or carrying evidence relating to a disciplinary or criminal offence, and that a strip search is necessary to find the contraband or evidence, and furthermore believes on reasonable grounds that delaying the search to comply either with the normal requirement of obtaining the prior authorization of the institutional head or the requirement that the search be conducted by a staff member as the same gender as the prisoner, would result in danger to human life or safety or in loss or destruction of the evidence, then the staff member can conduct the search without complying with one or both of these two requirements. The language of ss. 49(4)(b) clearly makes reference to "danger to human life or safety" but the section specifically limits the exemption from the normal requirements of the law to (a) not having to obtain the prior authorization of warden and (b) not having to have a staff member of the same gender conduct the search. The subsection says nothing about dispensing with the requirement that the strip search be carried out in a private area that is out of sight of every other person except for one other staff member.

A strong argument can be made that the Act should not be interpreted to justify the presence of more than two officers even for reasons of the protection of staff safety. Since the Act has specifically addressed this whole issue of emergency and has provided for some exceptions but not others, the intent of the legislature was to limit the exceptions to precisely those enumerated in the Act and no others. This kind of argument could be supported by another principle of legal interpretation that where a statute authorizes the power to search, because it is an intrusion into individual liberty and privacy, the provision should be interpreted strictly in favour of the protection of those rights guaranteed by the Charter. Using these legal principles the searches conducted at Kent in March 1998 which were carried out by more than two staff members were illegal searches.

Legal interpretation, however, rarely proceeds along a single track. There is another line of argument that would consider the relationship between section 46 of the CCR Regulations and the general principles set out in s. 4 of the CCRA itself. Two of those principles are:

4 (a) That the protection of society be the paramount consideration in the corrections process;

(d) That the Service use the least restrictive measures consistent with the protection of the public, staff members and offenders.

Using these provisions, an argument can be made that an integral part of "protection of society" as "the paramount consideration" is the protection of staff safety and therefore even if more than two staff members were used in a strip search, if their presence was required to protect staff safety and was "the least restrictive measure" consistent with that protection, then the search provisions should be interpreted in a manner which achieves that purpose. Some support for this argument can be found in the most recent decision of the Supreme Court of Canada which address the governing principles of statutory interpretation. In Re Rizzo and Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 Mr. Justice Iacobucci, in the context of a case in which the plain language of the provisions of a statute would seem to disentitle certain categories of employees from benefits in the event of a bankruptcy, had this to say about the applicable principles:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scene of the Act, the object of the Act, and the intention of Parliament . . .

It is a well established principle of statute interpretation that the legislature does not intend to produce absurd consequences . . . An interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment.

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