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, [1990] 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 over.

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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