Urinalysis and The Loss of Liberty

Behaviour committed by a prisoner or a parolee can give rise to severe consequences affecting liberty where the same behaviour, committed by a free person, would give rise to no such consequences, although it might result in the loss of a friendship, reputation or even employment. By far the clearest example of the different legal regime governing and sanctioning the lives of prisoners is the provision which makes it a disciplinary offence for prisoners to take an intoxicant into their bodies or failing or refusing to provide a urine sample when demanded. A prisoner who tests positive on a urinalysis may find himself placed in segregation, charged with the disciplinary offence of taking an intoxicant and, if convicted, receive a further sentence of segregation and/or a heavy fine. The positive analysis may jeopardize the chances of transfer to lower security, trigger a transfer to higher security or undermine the prospects for conditional release. A parolee who tests positive may have his parole suspended resulting in his return to an institution and if the matter is referred to the Parole Board, have his parole revoked with the result that he faces months and in some cases years of further incarceration. These are not hypothetical scenarios but consequences which are real and which affect the lives of hundreds of prisoners and parolees across the country. During the course of my research, as a result of the Correctional Service’s drug strategy, more prisoners and parolees faced these consequences than ever before. What triggered these consequences in every case was the fact that a prisoner or parolee had received a positive urine analysis for drugs. It is critical to bear in mind that this is not a case where a prisoner has been caught in the act of possessing or trafficking drugs but rather than he has at some point used drugs as determined by the urine analysis procedure. It is not exaggeration to say that years of liberty hinge upon urinalysis if you are a prisoner or a parolee.

Because a positive urine analysis is fraught with such consequences for prisoners, the CCRA and the CCR Regulations mandate a procedure setting out the circumstances in which a prisoner must give such a sample and establishes a process for its collection and testing. The issue in many disciplinary hearings is whether these criteria and procedures have been complied with. Underpinning the reliance upon urine analysis for disciplinary or other purposes is a certificate by an approved laboratory that conducts the test that the sample is a positive one for a specified drug. Section 69 of the CCR Regulations provides that "a certificate . . . that states that the result of a urine analysis test is positive establishes, in the absence of evidence to the contrary, that the inmate who provided the sample has committed the offence," the offence being taking an intoxicant into the inmate’s body contrary to s. 40(k) of the CCRA.

There are three bases upon which a demand can be made on a prisoner to provide a urine sample which, if the test result is positive, will support a disciplinary offence of taking an intoxicant or, where the prisoner fails or refuses to provide the sample, will ground a disciplinary charge under s. 40 (l). Sections 54 and 55 of the CCRA authorize a staff member to demand that an inmate submit to a urinalysis:

(a) where the staff member believes on reasonable grounds that the inmate has committed or is committing the disciplinary offence referred to in paragraph 40 (k) [taking an intoxicant] and that a urine sample is necessary to provide evidence of the offence, and the staff member obtains the prior authorisation of the institutional head;

(b) as part of a prescribed random selection urinalysis program, conducted without individualised grounds on a periodic basis and in accordance with any Commissioner’s Directives that the regulations may provide for; or

(c) where urinalysis is a prescribed requirement for participation in:

(i) a prescribed program or activity involving contact with the community, or
(ii) a prescribed substance abuse treatment program.

During the course of my research the random selection urinalysis -- under which prisoners’ names are randomly selected for testing by a centralised computing system in Ottawa -- was the subject of a court challenge. The B.C. Supreme Court, in a decision affirmed by the Court of Appeal ruled that the procedures constituted neither an unreasonable diminution of prisoners’ liberties nor an unreasonable invasion of privacy under ss. 7 or 8 of the Charter of Rights and Freedoms. ( Fieldhouse v. Canada (1995) 40 C.R. (4th) 263 )

The provisions that were most often the subject of dispute in disciplinary court were those dealing with "reasonable grounds" for a demand for urinalysis. The procedures governing the demand and the collection of the sample are quite complicated and understanding the legislative scheme is not helped by the fact that the requirements are fragmented between the CCRA, the CCR Regulations, the Commissioner’s Directives and Guidelines annexed to the Directives. The starting point for a reasonable grounds demand is section 54 of the CCRA which states that a staff member may demand that an inmate submit to urinalysis if three requirements are met; a staff member believes on reasonable grounds that the inmate has committed or is committing the disciplinary offence of taking an intoxicant; believes on reasonable grounds that a urine sample is necessary to provide evidence of the offence; and has obtained the prior authorisation of the institutional head. Under 62(1) of the CCR Regulations, the powers of the institutional head may be exercised by the urinalysis program co-ordinator. The next step in the process is outlined in s. 56 of the CCRA. It requires that where a demand is made, the person making the demand shall forthwith inform the prisoner of the basis of the demand and the consequences of non-compliance. This requires the person making the demand to inform the prisoner of all the grounds on which they believe that the prisoner has committed or is committed a section 40 (k) offence. Section 57 provides that a prisoner who is required to submit to a "reasonable grounds" demand shall be given an opportunity to make representations to the institutional head or the urinalysis program co-ordinator before submitting the urine sample. Section 62 of the CCR Regulations provides that where a prisoner makes representations objecting to the demand for a urinalysis, the institutional head or the urinalysis program co-ordinator shall review the demand for the sample and the prisoners objections, to determine whether there are reasonable grounds on which to require the sample and where they determine that there are reasonable grounds, direct the prisoner to provide the sample. The guidelines to the Commissioner’s Directives provide that a prisoner shall be given up to two hours to submit any objections concerning the sample requirement. Section 66 of the CCR Regulations also provides that the prisoner shall be given up to two hours to provide a sample from the time of the demand, to allow for those situations where the prisoner is simply unable to generate enough urine at the time of the demand.

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