location: publications / books / Justice Behind the Walls / Sector 5 / Chapter 4 The Power to Search and the Protection of Privacy / Balancing Prisoners Dignity and Staff Safety

Applying the principles of Rizzo Shoes it could be argued that to interpret the CCR Regulations so that no more than two officers could be present for strip search even when staff safety required the presence of more officers, would lead to a "ridiculous consequence", would be "extremely unreasonable" and would be "incompatible with other provisions or the objective of" the CCRA.

Even if, applying these principles, it can be argued that the provisions of s. 46 of the CCR Regulations should be interpreted to allow for the presence of more than two staff during a strip search where this is necessary to ensure the safety of staff members, it would still be necessary for the correctional authorities to demonstrate, in accordance with s. 4(d) of the CCRA that the Service had used "the least restrictive measures consistent with the protection of . . . staff members". The same onus would be on the institution to show that the protection of staff safety prevented the search being carried out "in a private area" as required by s. 46 of the CCR Regulations. In making any assessment of what the least restrictive measures would be, a relevant consideration would be the need to consider the dignity of the prisoner. The need for this flows not just from its requirement in the Commissioner's Directive on searches and its affirmation in the Mission Statement, but also because it is a value which the Supreme Court of Canada has stated must be taken into account in assessing whether a search is "reasonable" as required by s. 8 of the Charter.

Using this framework of analysis, could the Kent authorities demonstrate that the manner in which the strip searches were conducted during the emergency search in March 1998, which did not take place in a private area and involved more than two officers, were the least restrictive measures consistent with staff safety, having due regard for the dignity of the prisoners being searched.

The strongest case the institution could muster would be for the searches carried out by the Emergency Response Team in F and G unit. This was the highest risk area where the gun was most likely to be found and where, at least in the case of G unit, there was most likely to be prisoner resistance. Officer Noon-Ward's rationale for having the prisoner strip in his cell and then be taken to the end of the range to be strip searched and scanned with a metal detector was compelling; there was not enough room to complete this procedure either in or at the door of the cell and, in any event, the close proximity of the steel doors of the cell would not allow an accurate reading with the metal scanner. Furthermore, conducting the search at the end of the range in sight of the officer in the control bubble meant that there was an armed officer so that maximum control of the situation was ensured.

There are, however, further questions which have to be asked in determining whether the procedures adopted were the least restrictive measures. Going through the search procedures in order; a prisoner was first asked to strip naked in his cell while the cell door remained closed; this was observed by Officer Noon-Ward as the leader of the team; the cell door was then opened and the prisoner was asked to step out, naked, and was then handcuffed behind his back and escorted down the range. I asked Officer Noon-Ward why, after the prisoner had taken off all his clothes in his cell and had stepped out of the cell, he could not at that point have been given a pair of shorts or a towel and then be taken down the range under escort. That measure would be more consistent with protecting the dignity of the prisoner by not subjecting him to walking down the range naked. Officer Noon-Ward's response was that once the procedure was underway it was important that the prisoner be moved to the end of the range as quickly as possible, without interruption. Stopping the procedure even for the purpose of allowing the prisoner to put on his shorts or giving him some other item such as a towel could constitute a danger, because the prisoner could reach back into his cell for a weapon, including the loaded gun, and due to the narrowness of the space at the door of the cell, the officers would not have full control of the situation. Accepting this concern of Officer Noon-Ward, I would argue that it could be addressed by having the prisoner step completely out of the cell, having one of the members of the ERT stand in the doorway to prevent the prisoner going back in and, only at that point, give the prisoner a pair of shorts or some other covering.

Moving to the next part of the procedure; the prisoner was escorted down the range to the open area in front of the control bubble where he was required to go through the strip search drill of opening his mouth, running his fingers through his hair, lifting the souls of his feet, opening his hands and lifting his genitals; this was followed by his being scanned by an officer holding the metal scanning device. The question that has to be answered is whether this procedure could have been done in a more private area and whether it required the presence of all six members of the Emergency Response Team, plus the officer using the metal scanner and several additional officers observing the situation. Officer Noon-Ward's answer was that the ERT procedures required the presence of all members of the team because each was assigned special responsibilities and these procedures were designed to ensure maximum control of the situation. Furthermore, it was necessary that the procedures be carried out in a space in full view of the control bubble where the armed officer could observe the procedure and take whatever measures were required in the event of prisoner resistance.

However, this is not a sufficient answer to the question because standard operating procedures of the ERT are not necessarily the least restrictive measure to address the particular circumstances of this search. Conducting the strip search in full view of the officer in the bubble is a compelling argument to ensure maximum control, but it has to be remembered that at this stage of the search, the prisoner was naked (even under my suggested modifications, he would be wearing only a pair of shorts or a cover provided by the institution). The question that requires to be answered is whether, under these circumstances, the protection of staff safety requires the presence of a large number of officers to observe the strip search. Would it be reasonable to believe that a prisoner, fearing that the subsequent search of his cell would reveal the gun or ammunition, would resist violently while being strip searched, requiring the presence of more than the two officers specified in the CCR Regulations to conduct the strip search? Even if this question is answered positively, are there other measures which could have been taken to allow for the physical presence of more than two officers but restricting the sight of a naked prisoner being searched to no more than two officers.

Such a procedure is not only possible but provision for it had been made almost a decade earlier. In 1987, following the large influx of female correctional officers and to protect the privacy of prisoners when strip searches were conducted in an area where female officers were on duty, a privacy screen had been constructed both in the Segregation Unit and in all other units at Kent. This consisted of a floor to ceiling curtain that can be moved into place along a track; the bottom four feet of the curtain is opaque and the top is transparent. Prior to a prisoner being required to strip, the screen could be moved into place. However, before March 1998 the screens had never been used at Kent. Prisoners brought into the Segregation Unit, for example, were required to strip in the open area adjacent to the control bubble in the presence of at least three and often many more officers.

Page 2 of 3