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The combined weight of this evidence compels the conclusion that the requirement to bend over adds nothing to the deterrence and detection of contraband by strip searches. Additionally, the Supreme Court of Canada in the Sue Rodriguez case, albeit in the context of s. 7 of the Charter, has held that:

Where deprivation of the right in question does little or nothing to enhance the state's interest (whatever it may be) it seems to me that a breach of fundamental justice will be made out, as the individual's rights will have been deprived for no valid purpose. ( Rodriguez v. A.G.B.C., [1994] 3 S.C.R. 519 at para. 147)

Extrapolating from this judgement, requiring Jason Gallant to bend over advances no correctional purpose. Indeed, the bend over requirement achieves quite the opposite. Mr. Gallant's grievance says it all. The requirement undermines a prisoner's dignity, self-respect, pride, and sense of being in control of the most intimate parts of his body. It also undermines the possibility of respectful relations between prisoners and correctional officers by symbolically demonstrating to prisoners that they are pariahs worthy of such degrading treatment.

The outrage expressed by Mr. Gallant finds some resonance in a judgement of the Supreme Court of Canada dealing with the power of police to demand and seize samples of hair and body fluids for DNA analysis. Mr. Justice Cory, in ruling that such samples obtained without specific statutory authorization amounted to conscriptive evidence, the admission of which would render a trial unfair, had these comments about the values at stake:

Canadians think of their bodies as the outward manifestation of themselves. It is considered to be uniquely important and uniquely theirs. Any invasion of the body is an invasion of the particular person. Indeed, it is the ultimate invasion of personal dignity and privacy. No doubt this approach was the basis for the assault and sexual assault provisions. The body was very rightly seen to be worthy of protection by means of criminal sanctions against those who assault others. The concept of fairness requires that searches carried out in the course of police investigations recognize the importance of the body.

Traditionally, the common law and Canadian society have recognized the fundamental importance of the innate dignity of the individual. There is little likelihood of maintaining any semblance of dignity where, without consent and in the absence of any statutory authorization, intrusive procedures are employed to take bodily substances. For example, can there be any respect demonstrated for an individual if against their will women and men accused of a crime can be compelled to provide samples of their pubic hair to the police? ( R. v. Stillman, [1997] 1 S.C.R. 607 at paras. 87-88)

As a prisoner, is Jason Gallant disentitled to think of his body as the outward manifestation of himself? Must he, for no legitimate correctional purpose, be prepared to suffer without complaint the "ultimate invasion of personal dignity and privacy"?

In considering how to answer these questions and many others this book raises, the framework of inquiry suggested by Nils Christie, an eminent Norwegian criminologist and philosopher, is very useful. In his book Crime Control as Industry, he has written:

Punishment can then be seen to reflect our understanding and our values, and is therefore regulated by standards people apply every day for what it is possible and what it is not possible to do to others . . . More than a tool for social engineering, the level and kind of punishment is a mirror of the standards that reign in a society. So the question for each and every one of us is: would it be in accordance with my general set of values to live in a state which represented me in this particular way? (Nils Christie, Crime Control as Industry: Towards Gulags, Western Style, 2d enlarged ed., [London: Routledge, 1994] at 185-86)

At a conference in Barcelona in 1995, Professor Christie described how such a question can be approached. He and I had taken a walk the day before along La Rambla and Passeig de Grŕcia, two of Barcelona's most elegant boulevards. La Rambla, lit at night by finely wrought iron lamps, is framed by tall trees whose branches arch to shelter those walking arm in arm beneath; Passeig de Gracia is the site of Antoni Gaudí's Casa Milá and Casa Batlló, both celebrations of the harmony of art and architecture. During the conference's keynote address, Professor Christie said Barcelonans are justifiably proud of the contributions they have made to expressing the human spirit. By contrast, Professor Christie pointed to the prison in Barcelona, which he had just visited. While no worse than many other overcrowded prisons in Europe, as an artifact of punishment it was at war with everything La Rambla and Passeig de Gracia represented. Barcelonans should be ashamed, he said, to tolerate within their city a place that so tortures the human spirit.

How well do the videotapes of the strip searches of Jason Gallant and Darryl Bates at Kent Institution mirror the standards that reign in Canadian society? The Charter of Rights and Freedoms provides the basis for what we hope is a just and peaceful society that respects human dignity and protects against the abuse of power. How well are these visions reflected when, on no reasonable grounds, two prisoners are asked to expose their rectums to correctional officers and when, on their refusal to do so, six officers tackle each of them, wrestling them to the ground and forcibly prying their legs apart for a visual inspection? Is this an image that mirrors the standards of decency we want in the Canada of the twenty-first century?

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Justice Peter Cory