At the time of the Weatherall decision the Penitentiary
Act and the Penitentiary Service Regulations
did not contain the sort of criteria articulated by Mr. Justice Strayer.
While these were set out to some extent in the Commissioners Directive,
because directives did not have the force of law, Mr. Justice Strayer
held they did not constitute the necessary legal regulatory scheme required
by s. 8. As I have explained, the CCRA
and the CCR Regulations do now contain
a detailed regulatory scheme, indeed a scheme informed by the Weatherall
In the particular context of the challenges mounted in Weatherall,
Mr. Justice Strayer found that cross-gender frisk searching did not constitute
an unreasonable search within the meaning of s. 8 "given the inevitable
loss of privacy which is explicit in the prison situation, the order and
security requirements of the institution, the relatively minor intrusion
on personal integrity, and the benefit of providing employment opportunities
for women." (at 417) However, his Lordship found that a strip search of
male prisoner by a female officer in a non-emergency situation was an
unreasonable search and that unannounced cross-gender viewing by guards
for security reasons was also unreasonable. His Lordship stated:
In assessing the interests of both the inmates in
the institution I have come to this conclusion because the evidence does
not satisfy me that it is necessary, either for security reasons or for
the effective employment of female officers, that they view inmates in
their cells where such viewing is neither scheduled nor proceeded at least
by a minimal warning. (at 418)
The prisoners launched an appeal of the Federal Court decision to the
Supreme Court of Canada limited to the issue of frisk searches, counts
and winds conducted by female officers on male prisoners. This appeal
represented the first occasion in which the Supreme Court had to deal
with the reasonable expectation of privacy test in the prison context.
In contrast to the careful and detailed analysis that the Supreme Court
had provided in other contexts, its decision in Weatherall
can only be characterized as dismissive of prisoners' rights to privacy.
Imprisonment necessarily entails surveillance, searching
and scrutiny. A prison cell is expected to be exposed and to require observation.
The frisk search, the count and the wind are all practices necessary in
a penitentiary for the security of the institution, the public and indeed
the prisoners themselves. A substantially reduced level of privacy is
present in this setting and a prisoner thus cannot hold a reasonable expectation
of privacy with respect to these practices. This conclusion is unaffected
by the fact that the practices at times may be conducted by female guards.
There being no reasonable expectation of privacy, Section 8 of the Charter
is not called into play.  2 S.C.R. 872 at 877.
As the Weatherall case made its way up
through the court hierarchy, another case came before the Federal Court
which involved a challenge to the practice of strip searching, including
visual inspection of body cavities, unconnected to the issue of cross-gender
In Warriner v. Kingston
Penitentiary, Mr. Warriner, after a contact visit with his wife,
was asked to submit to a strip search. He removed his clothing and did
everything expected of him until he was directed to bend over and touch
his toes, so that his anal cavity was exposed for inspection. This he
refused to do. He was then taken to segregation, where he was asked to
submit to a second strip search. He co-operated but again refused to bend
over. The pattern of Mr. Warriner's co-operation and refusal at this point
replicates the facts in Mr. Gallant's case. However, those facts then
quickly diverge. Mr. Warriner, following his refusal to bend over, was
placed in a segregation cell and charged with the disciplinary offence
of failing to obey a lawful order. After conviction by an Independent
Chairperson, Mr. Warriner appealed to the Federal Court, arguing that
the order to bend over constituted an unreasonable search contrary to
s. 8 of the Charter. Mr. Warriner argued
that the bend over procedure was by design and effect degrading and humiliating.
Correctional authorities, in justifying the reasonableness of strip-search
procedures, relied principally on the need for this technique in controlling
the flow of contraband, including drugs and weapons, into penitentiaries.
In his affidavit, Warden Payne of Kingston Penitentiary set out the reasons
he believed a skin frisk, including a visual rectal search, was necessary
for all prisoners returning from an open visit.
Inmates have a strong desire to obtain mood-altering
drugs, and these drugs often make them more physically violent and dangerous.
I am familiar with Dr. Donald George Workman's study on the relationship
between aggression and the taking of certain drugs, and I can confirm
from my experience that what he has documented is fact. Drug-induced violent
events are a major problem in the penitentiary. An example may be useful.
When I was Warden at Collins Bay Institution, a medium security institution,
I was aware of at least two deaths there that were drug initiated and
drug related. In one case, a young inmate paid with his life for failing
to give up ten Valium.
Open contact visits, while undoubtedly important
in rehabilitating, also present a major opportunity for smuggling contraband
into a penitentiary . . . It is regrettably not uncommon for an inmate
and his family to have pressure put on them to smuggle in contraband for
other inmates. Naturally, the selected "mule" tends to be someone who
one would not normally suspect of concealing contraband.
Inmates are most ingenious when it comes to introducing
contraband into an institution and known incidents include everything
from condoms and balloons full of drugs to an actual working small calibre
(.22) handgun, rectally packed. It is imperative, I believe, that the
management of an institution retain the right to at least put up a barrier
against inmates easily introducing contraband into the institution in
order to protect the lives and safety of both staff and inmates. (Warriner
v. Kingston Penitentiary,  2 F.C. 88 at 106-7)
Dr. Workman, in his affidavit, referred to research he had conducted
at Millhaven in 1975 which found a significant increase in violent tendencies
in prisoners receiving minor tranquillizers and other medications.
We have found the majority of inmates are more interested
in mood-altering drugs than the average patient in the private sector.
I believe it is paramount to control the use of such drugs, either prescribed
or otherwise, within the institution, and it is especially paramount to
attempt to prevent any illicit trafficking in such drugs. When we couple
the results of our study with the fact that inmates on the whole are more
aggressive and violent than the average citizen in the general population,
the above measures are absolutely essential. It is my considered opinion
that, for the safety of inmates and staff, it is essential that prison
authorities conduct complete skin searches after contact visits including
the requirement that inmates bend at the waist, touching their toes so
as to expose their anal cavity. (at 107)
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