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 decision.

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. [1993] 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 searching.

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, [1991] 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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