Neither Mr. Payne nor Dr. Workman were cross-examined on their affidavits,
and Mr. Warriner did not present any evidence that rebutted their conclusions.
Mr. Justice MacKay concluded that the skin search, including the visual
rectal search, "was based on reasons related to the safety of inmates
and staff and to the good order of the institution, and that it was not
an unreasonable search contrary to Section 8 of the Canadian
Charter of Rights and Freedoms " (at 113).
Where does this finding leave the merits of Jason Gallant's grievance?
In light of the Warriner decision, the
demand made of Mr. Gallant that he submit to a strip search, including
the requirement that he bend over, would appear to be constitutional.
However, this conclusion requires more careful examination. The evidence
of Warden Payne and Dr. Workman in Warriner
was that the requirement to bend over was necessary to deter and detect
the introduction of contraband, particularly drugs, into institutions.
In the absence of any competing evidence, Mr. Justice McKay accepted this
necessity, and it was a major premise in his conclusion that the strip-search
procedure, including the "bend over" rule, constituted a reasonable search
under s. 8.
There are three distinct steps in the institution's argument. The first
is that the introduction and distribution of drugs within a prison has
a negative effect on the safety of prisoners and staff, the peaceful management
of the institution, and the promotion of rehabilitative programs. This
step is clearly supported by the evidence in Warriner. In the course of
my own research, the events of "Deadly July" at Kent Institution illustrate
the dangers that drugs can introduce into the life of a penitentiary.
The next step in the institutional argument is that a strip search,
including the requirement to bend over, is a reasonable strategy to deter
and detect the possession of contraband. This requires an assessment first
of whether the occasions on which a prisoner is required to submit to
a strip search are reasonably related to opportunities to obtain contraband,
and second, whether it is reasonable to believe that the strip-search
procedure will reveal evidence of contraband. On the first question, the
CCRA specifically limits the circumstances
in which routine strip searches are authorized to those situations "in
which the inmate has been in a place where there was a likelihood of access
to contraband that is capable of being hidden on or in the body, or when
the inmate is entering or leaving a segregation area" (s. 48). The factual
context of Warriner -- an open visit in
which the prisoner and visitor sit in close proximity and may have physical
contact -- is a clear example of a situation where the opportunity to
obtain contraband exists.
The second question requires an assessment of the means -- strip-search
procedures -- as directed to the ends -- the detection of contraband.
In the Jason Gallant case, this assessment must be focussed on the bending
over requirement of the strip search. The question can be posed in this
way: is it reasonable that requiring a prisoner to bend over to allow
a visual inspection of a body cavity will reveal contraband concealed
in that cavity? The search for an answer is not for the squeamish, requiring
as it does an examination of the way prisoners and their visitors "suitcase"
drugs within their bodies. The principal method is to place drugs in condoms
or balloons and insert these into the rectum or vagina. Requiring a prisoner
to bend over, even if this is accompanied with an order to "spread them,"
will not reveal a suitcased package except where it has been hastily inserted
or where circumstances have not provided the opportunity to insert the
package fully. That the bend over requirement as implemented in Canadian
penitentiaries is not reasonably related to the detection of contraband
is confirmed by several pieces of evidence. First, in the Jackson
case, Mr. Justice MacKay summarized the evidence of Mr. R. Harvey, the
CSC's Director of Custody and Control:
Despite internal intelligence, searches by detectives,
frisking and even skin or nude searches, especially related to pre-release
programs and major visitor occasions, it seems little contraband is actually
found and forfeited. Harvey indicated that those responsible for safety
and security in the Institutions believe that most drugs are transported
by inmates themselves and by family members and other outsiders, in body
cavities, principally the anus and vagina, hidden so as not to be detected
by visual search. ( Jackson v. Joyceville
Penitentiary,  3 F.C. 55 at 18)
The second piece of evidence is reflected in the long-standing correctional
practice at Kent of not requiring prisoners to bend over as part of strip-search
procedures. This represented a judgement by line staff that the bend over
rule was futile, since contraband was not going to be discovered except
in the most exceptional circumstances. Most correctional officers at Kent,
like most prisoners, saw the requirement as degrading, and therefore to
be avoided if it did not serve any useful purpose. The practice at Kent
was consistent with both the letter and the spirit of the law, since s.
45 of the CCR Regulations is cast in permissive
terms: "the person being searched shall undress completely in front of
the staff member and may be required to . . . bend over." According to
my conversations with staff, the change in practice at Kent after March
1998 did not bring with it any confidence that more contraband would be
discovered, nor was it. From the time the bend over rule was reinstated
until the completion of my research, there was no instance in which drugs
or other contraband was discovered as the result of a prisoner's bending
The final piece in the evidentiary answer to whether requiring a prisoner
to bend over is a reasonable means to detect contraband, is to be found
in the answer that correctional authorities have themselves given in another
related context. In the last chapter, when examining the use made of the
IONSCAN and drug dogs, I related several cases in which prison visitors
who had been refused entry to the prison because of a positive 'hit',
protested their innocence and volunteered to submit to full strip searches
to prove that they were not carrying drugs. In one case, when the visitor's
lawyer used this willingness to submit to the strip search as evidence
that she had nothing to hide, the answer given by the Chairperson of the
Visits Review Board was that this was not necessarily evidence of innocence
because "if the drugs are secreted in a body cavity,
a strip search will not reveal the drugs."
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