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2 1 1 1 I+11 Correctional Service Service correctionnel Canada Canada CONTRABAND CONTROL FINAL REPORT VOLUME II SUPPORTING DOCUMENTS CORRECTIONAL SERVICE OF CANADA 1 Cif natra.1

3 nottaelong to the Crown ;"".""*.--"----- CoWgint of Ibis docurnent does epee must be dotalned from tile autt'ior for?roper any 'intended use. deer du present dccument n'appartterinent du présent 1..es drciits État.Toute eisation contenu I pas document à el être approee pré,alablement par CONTRABAND CONTROL FINAL REPORT VOLUME SUPPORTING DOCUMENTS CORRECTIONAL SERVICE OF CANADA REPORT OF THE WORKING GROUP OCTOBER 1989 LIBRARY SOLICITOR GEKERAL GAMMA MAY MI Al Ble4JOTH?DitE SOLLICiTÈVRcRCANAM OTTOM (CUTI-R!LO-) K1A OK;

4 SUPPORTING DOCUMENTS TITLE PAGE 1. SUMMARY REPORT ON REGIONAL CONSULTATIONS 1 -definition -detection -cross-sex searching -enforcement -interventions -employee searches -specific issues and proposals 2. CONTRABAND CONTROL MEASURES 14 -Current Initiatives -area searches -scanner -frisk -urinalysis -strip -dry-cell -body cavity -New Initiatives -CSC/RCMP memorandum -dogs -electronic detection -random sampling -X-Ray 3. PROVINCIAL JURISDICTIONS 18 I -Summary of Policy and Practice -Newfoundland and Labrador -Nova Scotia -New Brunswick -Prince Edward Island -Quebec -Ontario -Manitoba -Saskatchewan -Alberta -British Columbia 4. INTERNATIONAL JURISDICTIONS 25 -Summary of Policy and Practice -Federal Bureau of Prisons -New South Wales

5 TITLE PAGE -New Zealand -Sweden -Norway -Holland -Germany -England 5. LEGAL ISSUES 29 -Personal Searches in the Penitentiary Context -Authority for Search -Privacy Interests -Search Procedures -Legal Justification for Inmate Searches -Cross Sex Issues -Employee Searches -Visitor Searches -Remedies for Illegal Searches -Conclusion 6. THE FEASABILITY AND THE LEGAL OBSTACLES TO REDUCING THE BURDEN OF PROOF IN PENITENTIARY DISCIPLINARY HEARINGS MALE EMPLOYEES IN PRISON FOR WOMEN 65 -Background -Issues -Perceptions of Female Offenders and Their Criminality -History of Prison For Women -Perceived and Actual Differences Between Male and Female Offenders -Needs of Female Offenders -Exchange of Service Agreements -CSC's Affirmative Action Program 8. AFFIRMATIVE ACTION PROGRAM STATISTICS 75 -Statistics on Employment of Female CX -Percentage of Female CX-COF 1 and 2 at Fiscal Year End -Percentage of Female CX-COF 3 and 4 and Female CX-LUF 1 at Fiscal Year End -Percentage of Female CX-COF 5 and 6 and Female CX-LUF 2 at Fiscal Year End -CX Officers Struck Off Strength -Female CX Officers Struck Off Stength -CX Officers Recruited -Percentage of Female CX Officers Recruited

6 DOCUMENT 1 SUMMARY REPORT ON REGIONAL CONSULTATIONS JUNE 1989 A. DEFINITION Serious Contraband There was strong general agreement that drugs (including alcohol), weapons and anything that supports the drug traffic in institutions are the most serious types of contraband. It was suggested that the more important issue is the use or intent of the contraband, and it is clear that anything linked to the trade in drugs is serious. Escape tools were also identified as - serious, depending on the level of security. Given that the current general definition covers everything that inmates are not allowed to have, it is difficult for institutions to clearly define what is considered less serious. They would like to concentrate efforts, and do so as much as possible, on items that jeopardize the safety of the public and the institution, however it was stated that we spend a great deal of time and money enforcing what was considered to be "nuisance" articles, such as unauthorized hobbycraft materials. In* Clarifying concerns about the use of contraband, it was pointed out that an authorized hobbycraft knife could be a formidable weapon, but is not considered contraband. The same article, in the hands of an inmate who is not authorized to have it, is contraband and can be treated as the most serious type of. contraband. Drug and Alcohol Use and Trafficking All participants reported a high level of use and traffic of drugs. In some regions, the results of the Mental Health Survey were considered to be low, even if we recall that the statistics included in the consultation paper did not include alcohol use. Most importantly, the use is known to be high, but it is impossible to prove or document. Where institutional representatives were able to provide estimates, these ranged from 15% up to 80%. It was suggested in one region that the closed nature of the institution means that even if the numbers of users were small, it is still a serious problem. It was confirmed that there is some difference in drug use between security levels, in that inmates in medium or minimum security used more, since they have increased contact with the outside. However, drug use in maximum security exists and is still considered a serious problem.

7 -2- Alcohol is considered serious, first because the behaviour of inmates under its influence is considered particularly 'unpredictable and dangerous, and second because inmates are combining alcohol with other relatively mild drugs to create a devastating mixture. Thus, any discussion of drugs should clearly include alcohol. Overall, the vast majority of security incidents are attributed to drug use and traffic, more so in the case of traffic. Participants were aware of high profit drug operations existing in the community whose sole purpose is to feed the federal institutional market. Participants pointed to the array of policy issues affected by this traffic, in that the entire institutional economy can be mobilized and controlled by those who smuggle and sell drugs. Inmate pay, canteen operations, personal effects, hobbycraft and inmate current and savings accounts are resources to be tapped by the drug traffickers. All these sources of funds taken together make up a multi-million dollar "budget" available for the drug trade, and specific examples of their use as such are easy to find..thus, policy changes in these areas can have, and have had, an impact on the drug traffic. There was some discussion of the issue of "soft" drugs, such as marijuana. Few participants were willing to suggest that these drugs were tolerated, though some said their use by inmates was not considered as dangerous as the use of other types. One manager did sense a certain tolerance, but said that charges for major offences are laid in all such cases. Of overriding concern was the trade in drugs. No matter how harmless a particular drug might be considered to be, the traffic in that drug is considered to be very dangerous. B. DETECTION Effectiveness of Current Techniques Based on the discussions at regional workshops, several conclusions can be developed. The routine use of frisk searches is not at all effective, for a variety of reasons. If inmates know when the searches are to take place, they will take precautions to avoid detection. In most cases, drugs are moved about the institutions in body cavities, which cannot be detected by frisk or even strip searches and the use of dry cells. Frisk searches are also not often conducted thoroughly, for a number of reasons. While there was some suggestion that the frisk searches are not being conducted thoroughly or frequently is due to the increased presence of women correctional officers, it was also pointed out

8 -3- that a properly conducted frisk search involving the touching of an inmate is confrontational in nature, no matter who carries it out. Such confrontation, which could occur constantly due to the requirements to conduct a large number of such searches each day, is avoided by a more casual or cursory approach to the search. As well, the timetable of institutional activities (i.e. meals, counts) demand fairly rapid mass movement. Thus, conducting thorough searches exiting shops, for example, would slow down such movement to a snail's pace and affect other activities in a major way. In medium security institutions, this is a particular problem. A important factor is the role of shop and school instructors, who are normally expected to conduct frisk searches on inmates leaving the shops. These employees are vulnerable, in the sense that they are often alone with large numbers of inmates, and they are expected to maintain effective working relationships with inmates, which makes the confrontational nature of frisk searches an especially difficult problem for them. As well, they can be under pressure to allow inmates to move quickly out of the shop areas to support the timetable for.meals or counts. The study team observed this reality in all the institutions it visited. At the same time, however, there was some reluctance to abandon routine frisk searches due to their deterrent effect. It was felt they can prevent the theft of institutional property and control the acquisition by inmates of ingredients for brew. On the other hand, if frisk searches are not conducted thoroughly, or not at all, as the Study Team observed, they will not achieve even the goal of deterrence. The use of staff knowledge and observation of inmates, combined with intelligence, was considered to be by far the most effective technique for detection. Most participants felt that the use of intelligence to target inmates or visitors for particular attention was most effective, and for them has achieved the greatest success. The acquisition of intelligence was achieved through the monitoring of visits, information from the community and from police, information provided by inmates, and so on. Participants felt that they could make more effective use of all types of searches, including personal and cell searches, by targeting inmates and visitors based on reliable, well-researched and analyzed intelligence and conducting random, unannounced searches. Recent decisions affecting budgets and deployment of staff have had and could in the future have a major impact on detection programs. It was stated very clearly that routine searches, especially at fixed check points, using a lot of staff were not possible anymore with the current numbers of staff available. Many institutions have had to resort to minimum manning, or cut

9 -4- posts, to either maintain their overtime budgets or deal with person-year reductions. One of the first activities to be abandoned under minimum manning is the conduct of routine frisk searches, and several institutions have had to cut posts at which frisk searches were routinely carried out. Given the general agreement that frisk searches do not discover much contraband, institutions may not have noticed any reduction in the effectiveness of detection. Of greater and even more universal concern is the fact that many Institutional Preventive Security Officer positions have been or will be eliminated in the process of person-year reductions. As stated earlier, intelligence is universally considered to be very valuable in the detection of contraband and trafficking. It also uses considerably less resources than routine frisk searches, while achieving considerably more success. Almost all participants agreed that, if the effective use of intelligence is to continue and to be improved, more resources are needed to acquire and analyze information. As well, the reduced complement of IPSO's are spending a great deal of time providing intelligence information to decision-making processes such as conditional release, which in most cases could be provided in a more cost-effective manner by Preventive Security clerks, who have also been reduced in number. Regarding deployment of officers under Unit Management, several institutions and regions expressed concern about the regular rotation of Visits and Correspondence and Admission and Discharge staff. If staff members are permanently assigned to these areas, they know the inmates and/or visitors well, and can participate in information sharing and other activities involving coordination with other staff or departments in the institution much better than if there was full rotation of staff. It was felt that these are two key areas in which valuable intelligence about drug use and trafficking can be obtained, and in which contraband interceptions are often made, and therefore that staff who are experienced and specialized in these areas should be retained. There was a general feeling that current approaches, the use of intelligence being the exception, are not very effective. One institution estimated they stop maybe 15-30% of the traffic, others felt the success of detection was much less, at around 5-10%. Participants did have various proposals to improve detection, to be discussed below, but in no case was it suggested to increase the routine use of frisk or other types of personal searches in the absence of other improvements that could be made.

10 -5- Urinalysis with Random Sampling Those participants who had been involved with urinalysis programs, either in the Service or elsewhere, were very supportive of the introduction of random sampling. In the regional discussions, however, it became apparent that the introduction of random sampling must clearly identify it as a demand reduction technique and tie it to a well-defined program of incentives and disincentives. There was concern that urinalysis will only detect users, who, it is felt, are the victims in the institutional drug trade. However, the possibility that demand could be reduced and the market for drugs consequently reduced or eliminated had a great deal of attraction, as did the notion that the program should be tied to appropriate sanctions and treatment. There was a strong concern that inmates could successfully challenge the legality of the program, which will be confirmed or removed with the upcoming decision in the Jackson case. Participants felt that inmates would initially resist the introduction of random sampling, especially at maximum security. Those who offered such opinions also felt that such resistance could be dealt with and overcome. At lower levels of Security, perhaps inmates would have too-much to lose, in terms of freedom of movement and contact with the outside, to fight random sampling seriously. However, there was also the suggestion that inmates who wish to avoid the violence caused by drug traffic would tacitly welcome random sampling. The real source of resistance, by inmates and management, is the fact that in the current situation we cannot clearly or consistently prove who is using drugs. This allows the inmates to avoid detection and the consequences, whereas random sampling would provide an unchallengeable and constant ability to detect drug use, and inmates would have no means to avoid the consequences. The absence of such a powerful detection tool also allows management to avoid the potential dangers of confrontation with drug traffickers and users, by giving the benefit of the doubt or by dealing differently with different inmates. The results of a random sampling program would provide such a clear picture of drug use patterns in the institution that consistent and concerted action by management would not only be possible, it would be mandatory. There is not strong consensus in any region at the operational level on random sampling, although some regions and institutions are very receptive to the idea. In addition to the above issues, there are concerns that it would be a very expensive program, that we already know who the users and traffickers are and do not need urinalysis to tell us, that urinalysis would not stop hardcore addicts, that it is more important to prevent the importation of drugs into institutions and that it will bring

11 -6- increased pressure to submit staff to random drug testing. However, there is a strong implication from discussions on the effectiveness of current detection and.of incentives and disincentives that the Service requires a reliable means of determining the level and type of drug use, and identifying those inmates involved, in order to implement any effective program aimed at reducing demand for drugs and controlling the traffic in drugs. Clearly, the Service does not presently have this capability. Use of New or Improved Techniques for Detection Most regions would like to use drug detection dogs, especially for deterrence at visits or for area searches. Those who have used dogs at family days, a key time when drugs are introduced to institutions, notice a lot of visitors returning to their cars when they see the dog. Institutions would probably prefer to be able to use such dogs on a dedicated basis to screen visits or search areas. A great deal more development and analysis of intelligence was suggested, through monitoring of telephone calls, correspondence and visits; training of IPSO's and other staff; development of information from inmates at time of release; a more systematic method of information exchange with outside police forces and with case management staff; use of the Offender Management System to track visitors at different institutions, visitor prohibitions, problem inmates, etc. Particular concern was expressed about vocational instructors or supervisors and kitchen staff, who are especially vulnerable and who are relied on to prevent the removal of weapons and items used in brewing alcohol from their work areas. More training and support for these staff was suggested. C. CROSS-SEX SEARCHING Without exception, participants reported that inmate complaints about female officers conducting frisk searches on male inmates were very few. There was, however, an expressed desire for a clear decision in this area, given the case of inmate Bourque and the various rumours circulating about the issue. When an inmate refuses to submit to such a search, which is rare, he is usually ordered to do so and if he continues to refuse is charged with a disciplinary offence. In only one or two institutions is a different approach used, which is to agree to find a male officer to do the search and make the inmate wait a fairly long time to be'searched. In these cases, it is felt that the level of confrontation is minimal, and the inmate still discovers that his refusal is causing him a problem, in that he must wait a long time to get through check points.

12 -7- In one region only, despite the low number of complaints, institutional representatives felt that inmates and their legal representatives would use the Conway case or other means to try to get rid of female correctional officers. Legal aid lawyers in this region are also, in the same vein, promoting public support for hiring male officers at Prison for Women, as well as a Charter challenge against the presence of women in living units. No institutions have changed their staff deployment practices to reduce the personal searches conducted by female officers, except of course in the case of strip searches. This latter policy has caused no problems, but if female offiders obtain promotions to A&D Officer positions, which in some institutions personally conduct strip searches on inmates, there will be a problem. There is some concern about officers conducting hospital escorts or, to a lesser degree, about those assigned to segregation, since inmate privacy is significantly lower in these cases. In general, the reaction to a suggestion that male officers conduct the frisk searches where there is more than one officer on the post was received very negatively. Participants felt that current deployment practices would make such a policy, or a policy that female officers could not do frisks at any time, either extremely difficult if not impossible. Theài were very concerned about objections from both male and female staff and from the union, and questioned the need for such a change in an area that, in their perception, is not causing a problem. It was suggested that inmates will accept a "reasonable" approach, though it is not clear that consensus could be achieved on what would constitute such an approach. There were some interesting and thoughtful comments emerging from this discussion. Looking at the question the other way, it was suggested that, if the Service decided to dramatically increase frisk searches, the inmate reaction would be extremely negative, more because of the increased number of frisks than whether male or female officers were conducting them. This echoes the earlier discussion about the confrontational nature of personal searches. As well, it was pointed out that, on a post with several officers, the most junior officers conduct the frisk searches. If the officers were of the same level, which under current rostering practices never occurs, such a policy would not be a problem. This could imply that conducting frisk searches is not considered a high level duty, and also reminds us that female correctional officers are still predominantly in the junior positions. With this line of reasoning, it is logical to suggest that if frisk searches by opposite sex officers were banned, opposite sex officers should only be employed in senior or supervisory positions.

13 -8- D. ENFORCEMENT Experience with Outside Courts and Police With some exceptions, it was generally agreed that the most successful investigations and prosecutions involving police forces, Crown Attorneys and courts were based on very localised and personalised relations between institutional staff and the outside agencies. As well, the attention paid by these outside agencies often depends on the resources available in these agencies to pursue cases dealing with contraband. It was emphasized that good cooperation was usually received when the institution calls the police. The protracted length of cases and the sometimes lenient sentences are problematic. There is a reluctance in some regions on the part of Crown Attorneys to pursue cases under the Penitentiary Service Regulations, and most cases in outside court are based on the Narcotic Control Act or Food and Drug Act. The exceptions involve two rather different approaches. Ontario institutions continue to be quite satisfied with the formal arrangement with the Ontario Provincial Police Pen Squad, except that Warkworth Institution is not served by the Pen Squad. Institutional staff have been able to meet Crown Attorneys to impress upon them the seriousness of drug use and trafficking. In another approach, and in the absence of formal arrangements, Bowden and Stony Mountain take all cases of inmates in possession of drugs to outside court, including in the case of Bowden, preparing the case and laying the charges. The results have been fairly good -at Bowden in the last three years all such cases have resulted in consecutive sentences of up to 6 months for inmates. This success is also based on a significant level of work carried out by the institution's two IPSO's, and other regions suggested that similar efforts were needed on CSC's part to pursue such cases. Many participants felt that institutions near large urban centres find it particularly difficult to gain the attention and support of police and Crown Attorneys, who are dealing with significant drug problems in the community, while the agencies in rural areas were more willing to deal with contraband cases. Given all the difficulties, most institutions are probably still using internal sanctions to deal with inmates. Participants felt it was more effective to charge visitors in outside courts. Participants felt that one worthwhile initiative was enrolling all ipso's in the Criminal Intelligence Service Canada, which allows for more effective information sharing with police forces.

14 -9- CSC/RCMP Memorandum of Understandinq Ontario region, as stated above, is very happy with the Pen Squad and does not want any new arrangements to affect it. Warkworth Institution may very well benefit from an MOU with the RCMP. Quebec region has similar concerns about existing relationships, though it would welcome additional help in dealing with drug trafficking. The Atlantic and Prairie regions would welcome the agreement, viewing it as most helpful to pursue those who run the drug traffic, follow up on cases in the community and perhaps assist with cases involving staff. Discussions are underway on the feasibility of conducting a pilot project at Abbotsford. Other Enforcement Issues There were indications that CSC itself needs more resources to analyze our intelligence information and provide the police with appropriate information with which to pursue cases. As well, some institutions would like to gain a better understanding of how to present cases to Crown Attorneys, and would like to improve the Crowns' understanding of conditions within institutions. E. INTERVENTIONS Interventions With Inmates Participants identified a large number of individual incentives which they felt were most effective with inmates. These included: private family visits, transfers to lower security, open visits, temporary absences, parole, participation in programs, improved or increased leisure counselling and activities, urinalysis, drug education, personal effects, fines, participation in socials, single cell accommodation, canteen accounts. A number of general comments were very pertinent. Institutional representatives consider it most important to take immediate action, and that something that is far in the future has little impact. Thus, affecting the MS release date early in the sentence has little impact, although it might if the inmate is approaching that date. There was little discussion of earned remission, and when it was mentioned, the indications were that it was of little impact unless the inmate was nearing the release date. It was also considered important to achieve better information sharing with the National Parole Board, since institutions feel that TA's or day parole should be cancelled if an offender is caught using drugs, and that the Board does not appear to take into account some of CSC's sanctions as indicative of an offender's readiness or lack thereof for conditional release.

15 -10- There was not much discussion of punitive dissociation or segregation, except in terms of how it is imposed. One Warden requires inmates to serve such sentences on weekends, thereby maintaining their participation in work or programs during the week and affecting their participation in weekend socials and leisure activities. There was some reluctance to adopt a program of automatic sanctions. It was suggested that incentives and disincentives should be tailored to the needs of the individual inmate, tied to the Case Management Strategies, and that institutions should have flexibility to consider individual cases differently. On the other hand, one participant questioned whether we should give offenders second and third chances, or whether the behaviour should be dealt with more quickly. In another vein, it was suggested that the most effective approach to incentives and disincentives is that in which sanctions are integrated and could involve all parts of the institutional program and all staff, the incentives and sanctions are highly publicized to inmates, the inmate is aware of the potential and actual consequences of behaviour and, if necessary, incentives and sanctions could "travel" from institution to institution. This would also require a systematic approach across the region and across the country, to ensure that inmates receive the same treatment and understand that the issue is taken equally seriously in all parts of the Service. There is a certain level of frustration with the disciplinary system and with involuntary transfers. In the case of discipline, not all ICP's recognize the seriousness of drug use and traffic and do not sanction these offences very heavily. Many ICP's are demanding very concrete evidence, in line with the Commissioner's Directive setting a standard of proof of "beyond a reasonable doubt". This type of concrete evidence is also being demanded in some regions for involuntary transfers, or institutions are expected to confine involuntary transfers to only those cases where assaults or other security incidents have occurred. Especially in cases of drug trafficking, all that usually can be submitted as evidence is based on strong suspicions. With the increasing involvement of lawyers in such discipline and transfer cases, especially on behalf of the more powerful drug traffickers, institutions are facing an enormous challenge to enforce institutional and CSC rules, not to mention the federal laws and regulations, about the use and trafficking of drugs.

16 Interventions With Visitors -11- Most participants felt that the best response in cases where visitors are caught bringing contraband into institutions is to charge them in outside court. However, to some this is a moot point, since visitors are so rarely caught. Visitors are only searched on the basis of a reasonable and probable grounds to believe that they have contraband in their possession, and thus they are usually apprehended on the basis of intelligence. The Pacific region is able to take advantage of a system whereby they can gain information on visitors who have been barred from provincial institutions for drug possession or trafficking, so that they can be prepared in case these same individuals attempt to import drugs into federal institutions. There is some concern about what should be done when visitors refuse to be searched, in that legal opinions have indicated that there is nothing to stop the visitor from approaching the institution after one such refusal and gaining entrance if they submit to a search at that point in time. There are other problems related to visitors, due to the need to maintain family relationships. Although it would be normal to deny access to the institution to a visitor who has a criminal conviction, the practice in at least one region is allow visits by members of the inmate's family even if they do have a criminal record, unless their conviction is related to an offence committed at the institution'involved. However, institutional representatives could envision situations where the criminal record of the visitor is highly indicative of involvement in criminal activity such as trafficking drugs into institutions. F. EMPLOYEE SEARCHES Since the issue involved here is the conduct of strip searches, it was interesting to note that such searches have so rarely been conducted within the Service. Most participants had never heard of such searches being conducted, let alone ordered or participated in them. There was strong consensus that, in serious cases where staff are suspected of importing drugs, the police should be called in early and a careful investigation should be conducted. Consensus on a change in the current policy or law was not apparent. Participants in one region strongly felt that the policy should be changed to call in police in all cases, while retaining the Warden's authority to order a search in emergencies, and that staff should not search one another. Most other regions wished to retain the current policy, although the question was often raised that, if suspicion is so strong, there was no reason not to involve the police, and ultimately, if a search is deemed necessary, to have the police conduct it.

17 G. SPECIFIC ISSUES AND PROPOSAIS Most participants suggested specific proposals, or identified issues that they felt should be addressed in this study, in the following areas: Detection There was support for random sampling urinalysis, although as described above there is also a great deal of caution about it. Institutional authorities are concerned about the use of dry cells, and wonder how long an inmate can be left under such conditions. There was virtual unanimous agreement that more resources and training are required for preventive security, and as well issues such as the classification level of IPSO's, reporting and recording of information and coordination of intelligence should be addressed. There is also a need to improve and clarify line staff understanding of search powers and authority. Also in support of preventive security, many participants oppose the notion of rotating V&C and A&D staff. It was also suggested.that the high cost and apparent ineffectiveness of searches be addressed, and that perhaps a pilot project involving the reduction or elimination of frisk searches could be conducted. En forcément There was only limited attention to the notion of increasing the penalty for importation of contraband, and perhaps placing it in the Criminal Code. It was often suggested that training for all correctional staff should focus on the handling of evidence, search policy and practices, presentations to the ICP and to outside courts and on the proper use of the officer's notebook. Interventions Clear information on guidelines and sanctions should be available within the Service. On the operation of the disciplinary system, there should be more education and liaison with ICP's to explain the seriousness of drug use and trafficking. Some institutions would like to have more legal advice and assistance in dealing with disciplinary court and with involuntary transfers. One specific proposal that was repeatedly made was to change the standard of proof in CD 580 -Discipline of Inmates from "beyond reasonable doubt" to "balance of probabilities", since staff were experiencing significant difficulty in meeting the former standard. It was also suggested to remove the word "calculated" from the offence identified in PSR 39(k).

18 -13- 'In dealing with drug use, it was suggested that more education and treatment programs are required. By way of prevention, to reduce the market, a serious examination of canteen operations was suggested. Kent Institution has removed the canteen from inmate control, while others have dealt with the problem by decentralizihg the canteen and strictly monitoring its financial operation. To reduce access to manufactured weapons, one participant bluntly suggested that metal shops should not be operated in maximum security institutions. Others suggested a serious review of personal effects, indicating that perhaps the level and type of effects should be more standardized between institutions. Participants at virtually all the workshops also felt that the visit program is an important and integral part of an incentive and disincentive program. It should be noted that there is confusion in the field at this time with respect to the policy regarding private family visits. There are various perceptions, interpretations and actual implementation of changes which are this stage only ideas under review.

19 -14- DOCUMENT 2 CONTRABAND CONTROL MEASURES CURRENT The following describes the types of searches currently authorized, CSC's policy for each search, and the relative degree of intrusiveness and effectiveness of each type of search. AREA SEARCHES Area searches are conducted on a periodic, unannounced basis to determine if contraband has been hidden within the area being searched. Such searches are normally conducted in specific sections of the institution, although general searches are also used when required, and do. not necessarily include personal searches. Area searches are conducted on a random basis at any time, after special events involving large numbers of visitors, or when institutional staff have reason to believe that contraband is present. These searches are not intrusive on the person, and are quite effective at detecting the presence of contraband in certain areas. They do not assist in determining how contraband enters the institution, or who is responsible. SCANNER DEVICE Walk-through metal detectors are used to detect metal contraband, and of course require no contact with the body. A hand-held scanner device search consists of using a metal detector along the body, down the front and rear of the body, and around the legs and arms. This search may also include the use of the device on personal possessions. Usually, no contact between a body and a hand-held scanner device is necessary. All staff are permitted to conduct such searches, regardless of the sex of the person being searched. Since no touching is involved, scanners are not considered personal searches, and are therefore not intrusive. They are quite effective at detecting metal objects. FRISK SEARCH (OR PAT DOWN) A frisk search is a hand search of a clothed person from head to foot, down the front and rear of the body, around the legs and inside clothing folds, pockets and footwear. This search may include a search by hand-held scanning devices. If necessary, a frisk search may require the person being searched to raise, lower, or open outer garments of clothing to permit a visual inspection. Such searches are done by all staff, regardless of the sex of the person being searched, except that in the case of visitors and female inmates, only staff who are of the same sex are permitted to conduct the search. Inmates may be searched

20 -15- where a staff member considers it necessary to detect contraband or to maintain the good order of the institution. Visitors may be frisk searched when there is reason to believe they have contraband in their possession, and staff or contract employees conducting the search must be of the same sex. In the case of staff members, searches may only - be authorized by the Director, who must have reason to believe the staff member has contraband in his/her possession. Policy is silent on whether the staff member conducting the search should be of the same sex. Frisk searches are somewhat intrusive on the person. The large number of searches and few results reported suggest that it is not successful at detecting much contraband, although it may have a deterrent effect. URINALYSIS The urinalysis program is currently operating at Joyceville, Pittsburgh and Prison for Women. Inmates, who staff have reason to believe have ingested intoxicants, are asked to submit samples. CSC staff who have been trained in testing procedures are responsible for collecting and testing urine samples. Tests with positive results are sent to an independent laboratory for confirmation of findings. The program could be expanded to other institutions and other regions, using independent laboratories for both initial and confirmation tests. CSC staff would continue to collect, store, document and transmit samples. The condition for requesting inmates to provide samples would continue to be that staff have reasonable and probable grounds to believe an inmate has ingested intoxicants. Urine testing is considered less intrusive than body cavity or strip searches. Given proven testing methods, it is effective at detecting specific types of intoxicants. STRIP SEARCH A strip search is a visual search of a completely unclothed person and requires the individual to bend over to allow a visual inspection of body cavity areas. All clothing and possessions are also to be searched. Strip searches of inmates may be authorized when a member considers it necessary to detect contraband or maintain the good order of the institution. The search is to be conducted by a member of the same sex and normally in the presence of a witness who is also of the same sex, except in "urgent circumstances", when a male inmate may be strip searched by a female member. In the case of female inmates, no such exception exists. Visitors may be strip searched when there is reason to believe they have contraband in their possession, and staff or contract employees conducting the search must be of the saine sex. Strip searches of staff members may only be authorized by the Director, who has reason to believe the staff member has contraband in his/her possession. Strip searches are highly intrusive on the person. The 1987 report

21 Lectislative Solutions for the Reduction of Contraband Related violence in Canadian Penitentiaries stated that the strip search has "relatively low effectiveness is detecting contraband hidden deep in a body cavity"; and concluded that, with respect to visitors, "the effectiveness of strip searches is low, while the potential for embarrassment to the Service (due to the intrusive nature of the search) is high." DRY-CELL A dry-cell consists of a room without any commodities that an inmate so confined could use to get rid of any contraband. The inmate, who is only wearing an institutional smock, is under constant supervision for the period s/he remains in the cell. The dry-cell is used when an inmate, who is suspected of concealing contraband in his/her body, refuses to submit to another method of search. Although no touching is involved, such searches are degrading, even if not intrusive. They are only effective if close supervision can be done, and often require from hours to days to provide any results. BODY CAVITY SEARCH A body cavity search is a strip search with a physical examination of all body cavities. This search is to be conducted by a physician in the prebence of a witness who is of the same sex as the individual being searched. These searches require the consent of the individual and the approval of the Director of the penitentiary. When such a search is conducted on a visitor, consent and approval must be written. Body cavity searches are highly intrusive on the person, as evidenced by the requirement for consent and the expressed reluctance of medical professionals to carry them out. Given the requirement for consent, it is unlikely that the technique detects contraband often. 1 NEW INITIATIVES The following describes contraband control techniques that are in the process of development and includes discussion of possible policy, implementation, intrusiveness and effectiveness. CSC/RCMP MEMORANDUM OF UNDERSTANDING This agreement will allow for the assignment of RCMP drug enforcement officers to work in conjunction with CSC staff to develop and coordinate programs aimed at drug use, possession and trafficking in institutions. The majority of the work under the agreement will be in intelligence collection, collation and distribution between institutions and the community. The agreement applies only to illicit drugs, the use and trafficking

22 -17- of which is a large part of the contraband problem. DETECTION BY DOGS CSC could make expanded use of dogs to detect drugs and firearms, both dangerous types of contraband, in all institutions. Dogs can serve to conduct effective and relatively quick general area searches, reduce the number of staff required to conduct area searches and protect informants. It should be noted that dogs would only be used for area searches, and as such, are not intrusive on the person. ELECTRONIC DETECTION The National Research Council is developing the Trace Narcotics Detector, an electronic device that can be portable, on behalf of CSC and other law enforcement agencies. A pilot project is scheduled to begin at Leclerc Institution in , however, operational/commercial use of such devices for CSC purposes is at least five years away. The detector operates similarly to mental detectors, and therefore is not an intrusive form of search. RANDOM SAMPLING The use of random sampling would eliminate staff discretion in the identification of who must submit a sample through the use of random selection by computer. The use of random sampling to determine who will give a sample encourages offenders to avoid alcohol or drug use so that they can avoid the consequences of testing positive. Random sampling will also assist the Service to measure the true level of drug and alcohol abuse among offenders, and to identify those offenders who require substance abuse treatment programs. While urinalysis is a form of personal search, random sampling can remove the-arbitrary nature associated with testing of individuals. X-RAY An X-Ray search involves using an X-ray device to detect an illegal object which may have been concealed within a person's body. This search is to be conducted by a practitioner or a qualified technician and requires the written consent of the person who is to be searched. This is a highly intrusive form of search. Its effectiveness depends on the skill of the practitioner and on the methods used to conceal the contraband in the body, some of which are not easily detected.

23 -18- DOCUMENT 3 PROVINCIAL JURISDICTIONS SUMMARY Provisions within the provinces which define contraband and which govern search procedures are found within both regulations and policy directives. Definitions are general by nature and include the concept of prior authorization. The majority of definitions state that contraband is an item which an inmate is not authorized to possess by the institutional head. All provinces prohibit cross gender strip searches. Although some provinces authorize cross gender strip searches in an emergency, it was the general opinion that proper rostering should prevent this situation from occurring. The majority of provinces authorize female officers to frisk search male inmates. Those provinces which do not allow routine cross gender frisk searches also provide for the frisk search of male inmates by female officers in an emergency situation or when a male officer is not available. In many provinces cross gender guarding is a practice which is not regulated by formal policy within regulations or directives, although many provinces are currently in the process of developing policy in this area. All provinces report the successful deployment of female officers in male institutions, although it should be pointed out that in many jurisdictions, women make up 10% or less of total corrections officers. Restrictions within the institution are those which are required in order to respect the dignity of inmates. Provinces are divided on the deployment of male officers within female institutions. There are very few female correction centres within the Maritime provinces and male officers are not employed within these facilities. The provinces have casual female officers on standby when required to search a female prisoner held within a provincial jail and female inmates are transferred to a correction facility as soon as possible. Ontario and Quebec both employ male officers within their female institutions with no restrictions on movement within the facility. In order to respect the dignity of the inmates, male officers are required to knock before looking in a cell window in Quebec, and Ontario cells have been equipped with modesty barriers around the toilet. Male officers perform frisk searches on female inmates only in an emergency situation, however, the number of female officers available reduces the likelihood of this occurring

24 -19- The western provinces do not deploy male officers in contact positions within female institutions. Although British Columbia's Royal Commission on the Incarceration of Female Offenders (Proudfoot Commission) was conducted in 1978, the response from this province indicated that the report still influenced policy decisions in this area despite the passage of time. The Proudfoot Commission was largely initiated in response to allegations of sexual abuse and misconduct by male officers against female inmates at the BC Lakeside Correctional Centre for women. Even though many of the allegations were not substantiated, the investigation revealed the vulnerability of male officers and resulted in the province removing male officers from contact posts at the centre. NEWFOUNDLAND AND LABRADOR Policy which governs searches is found within Regulations and Directives. Regulations provide that " The Superintendent shall:...ensure that female prisoners are kept in immediate care and charge of a female officer". Directives state that "No inmate shall be searched by an officer unless that officer is of the saine gender as the inmate". No distinction is made as to types of searches. and "Only the Superintendent or Assistant Superintendent may authorize the search of an officer or employee". The Regulations also state that " a prisoner shall not:...give, receive, attempt to give or receive or have in his possession any article not permitted by the Superintendent". Contraband is defined in Directives as: " anything in the possession of an inmate, visitor, or other person, which that person should not have in his/her possession while on institution property and the possession of which is in violation of Prison Regulations". Female Correctional Officers in Male Institutions There are 4 female officers out of the 180 Correctional Officers who staff the six correction centres. There are no restrictions placed on posts and female officers are allowed in living units. Although female officers are currently unable to perform searches, this policy is being reviewed and it is anticipated that the revised policy will give authorization for female officers to perform frisk searches on male inmates. Male Correctional Officers in Female Institutions In the one female correction centre all 12 officers are female. It is the policy of the province that females being detained within jails will be searched by a female officer who is called

25 -20- upon as required. NOVA SCOTIA Provincial Regulations provide that " No inmate or visitor shall be searched by a person of the opposite sex unless the person is a health care professional or the person is an employee who has reasonable cause to believe that an immediate frisk search is necessary because the inmate or visitor may be concealing contraband that may be dangerous or harmful to any person or property". Regulations also state that "the Superintendent shall ensure that a written record is made of every inmate search to include name of inmate, reason for search, description of any property seized or damaged in conduct of search". Contraband is defined within the Regulations as meaning " unauthorized property as defined in the policies and procedures". Policy and Procedures then define contraband as " Any substance or item which prisoners are not authorized to have in their possession". Female Correctional Officers in Male Institutions There are 13 adult facilities within this province which are staffed by 324 officers. All of these facilities house male inmates with the exception of the Halifax Correctional Facility which also has a 24 bed unit to-accommodate female inmates. There is no cross supervision in any of the centres with the exception of Cape Breton Correction Centre where there are 3 female officers. These female officers are restricted from the maximum security unit due to the presence of open toilets and showers. The province has not experienced any difficulties with female officers performing searches using either a scanner or when they have been required to perform a frisk search. A formal policy is currently being developed on cross-gender employment within adult facilities. Male Officers in Female institutions Halifax Corrections Centre employs 10 female and no male officers in its female unit. NEW BRUNSWICK Provincial policy states that there is to be no cross gender routine searches including frisk searches. This has not created a problem even in emergency situations, as rostering ensures that a female officer is never alone with a male inmate. Female Officers in Male Institutions Female officers make up approximately 5% of the total Correctional Officer complement. There are 9 female o ficers in

26 -21- Saint John where showers and toilets are protected. Female officers are restricted from posts in the Admission /Discharge area where routine strip searches occur. In small institutions there are no female officers as there is not enough staff to roster both gender officers at the same time. In the five small jails, there are no female officers as prisoners are transferred to Saint John immediately as the jail facilities do not provide for any privacy in the shower and toilet areas. Male Officers in Female Institutions If a female prisoner cannot be transferred to Saint John, female casual standbys are available on call. PRINCE EDWARD ISLAND There are 2 correction facilities, one of which has 80 beds housing inmates serving sentences, whereas the second holds lockups, remands etc. All inmates upon admission and all prisoners who have been off the jail property are strip searched. All prisoners leaving the contact visit area are frisked while visitors are searched by a scanner. Female Officers in Male Institutions Out of the staff complement, there are 5 female guards. Female officers are deployed in both facilities with no restrictions on posts. Although they are not allowed to do strip searches they can perform frisk searches. There have been female guards deployed in the province for 10 years with no difficulties. Male Officers in Female Institutions The corrections centre houses a 4 bed female unit staffed by female guards. Male guards and inmates are not allowed within this unit and casual female staff are available to complement female staff if required. QUEBEC Strip searches are performed by officers of the same gender. Opposite gender frisk searchs are authorized only if the same gender officer is not available. All visitors are searched and access is forbidden if the visitor refuses. If an employee refuses to be searched access to the institution is forbidden and the assistance of the police can be requested by the warden. Contraband is defined in policy as "An object that an inmate has in his possession that is forbidden by law, a regulation, or by

27 -22- policy either general in appliction or specific to the establishment where the inmate is incarcerated". Tanguay Out of 80 officers, 10 are male with no restrictions on posts or areas within the institution. Male officers are paired with another officer but there is no requirement that the second officer be female. Although inmates are routinely frisk searched upon leaving certain shops, male officers do not perform frisk searches except in an emergency situation and do not perform or witness strip searches. The only requirement for male officers within living units is prior to looking in a cell window they are to knock on the door in order to respect privacy rights. There have been only two complaints from inmates concerning male officers in the past ten years, with both of these incidents involving a guard not knocking on the cell door prior to looking in the window. ONTARIO Policy states that both gender officers are to be assigned equally to au. posts except where the duties of a post would invade the personal dignity and modesty of inmates. The invasion of inmate privacy is defined as "direct staff supervision and/or physical contact with inmates of the opposite sex who are in states of total nudity or substantial undress". Same gender supervision occurs for example, in shower areas. Only the primary officer performing a strip search need be of same sex as the inmate, provided that the physical layout of the institution allows for the protection of personal dignity and modesty of the inmates. Except for an emergency situation, only female officers perform frisk searches on female inmates however, both male and female officers may perform frisk searches on male inmates. Vanier Centre for Women This facility houses 78 female adults and 40 male Young Offenders. Out of 63 officers approximately 20 are male who are rotated throughout all posts inclusive of living units. Rostering provides that female guards are always available to do both frisk and strip searches, with frisk searches automatically being performed after every visit and strip searches performed periodically. Inmates returning from a pass are automatically frisk searched if they are a minimum security inmate and are frequently dry celled if they are classified as medium security. Periodic strip and frisk searches are performed on inmates returning from work programs. Male officers are allowed to

28 -23- witness strip searches but they must place themselves where they can view the female officer performing the search, but are unable to view the inmate. An all purpose search report is completed for every search whether it be on a person or of a place. Two officers are located in every unit with one remaining in the control booth and the other walking though the unit. Male officers are rotated throughout all posts and are not allowed to open up cells without a back up. All cell units have.modesty barriers around the toilet. When cross gender guarding was first introduced, inmates requested that male officers call out before walking through the units, but now accept the policy of male guards not announcing their presence. MANITOBA This province does not have a specific policy on cross gender searches and guarding. Strip searches of male inmates are normally performed by two male officers, however, should two male officers be unavailable, one male officer will perform the search and the female officer would observe. This situation occurs rarely, due to the large number of male officers who are available. Female Officers in Male Institutions There are fulltime female officers and another 25 part-time out of a total of 1026 officers. There are no restrictions on posts for female officers. Male Officers in Female Institutions Although competitions are open to both sexes, fet:i males apply and it has been found that the female candidates are generally better qualified. There is one male supervisor at Portage Jail for women who has no restrictions placed on his movements, however, it is expected that he will use his discretion. Situations have occured in small institutions where female inmates in a remand unit have been supervised by male officers but the facilities are self-contained in order to ensure that there is a degree of privacy. SASKATCHEWAN Female officers perform frisk searches on male inmates but not strip searches. Female Officers in Male Institutions There are restrictions for female officers, in that they are not

29 -24- allowed in admitting or remand areas or single person posts located within the camps. Male Officers in Female Institutions Male officers are posted outside of the one female correction facility, and only female officers are authorized within the centre. ALBERTA Contraband is defined within the Directives as "anything in the possession of an inmate contrary to the rules of the Centre." Directives also provide that searches are to be performed by the - same gender officer except in an emergency situation. There are 149 female officers and 816 male officers within the province. All institutions are co-correctional except for the remand centres. Female officers are performing frisk searches on male inmates, but as female inmates are guarded by female officers, the reverse situation does not occur. Female Officers in Male Institutions There are are no restrictions on posts except the admissions area. Male Officers in Female Institutions Male officers are not deployed in female units. BRITISH COLUMBIA: A cross-gender search policy has recently been developed which provides for a cross-gender strip and frisk search only in an emergency situation. If a cross gender search is required, then the opposite gender officer must be the observer. Female Officers in Male Institutions The female officers deployed within male institutions have no restriction on assigned posts. There have been some complaints from inmates around the shower area but these have been minimal. The province is actively trying to integrate more female officers into male institutions. Male Officers in Female Institutions There are no male officers in the two female facilities. One is an open camp setting and the second a secured setting where the only male staff is the deputy director.

30 II -25- DOCUMENT 4 INTERNATIONAL JURISDICTIONS SUMMARY All of the international jurisdictions authorize cross gender guarding within their institutions and report few difficulties. A couple of countries commented that it has been a long standing practice to deploy male officers within female centres and that the introduction of female officers within male institutions has been recent. The only restrictions placed on posts within facilities are those required in order to ensure the privacy and dignity of the inmates, le. shower areas or admissions where inmates are routinely strip searched. Cross gender strip searches are not authorized in all provinces with the exception of Sweden, where efforts are made for same gender strip searches. Many countries prohibit cross gender frisk searches. Other than the limitations within some areas of the institution and the restrictions in performing searches, officers of both gender perform similar duties. FEDERAL BUREAU OF PRISONS The Federal Bureau of Prisons assigns both male and female correctional officers to all institutions with the exception of the exclusion of female officers from maximum custody male institutions. This exclusion is based on security reasons. Frisk searches are routinely performed by staff of either gender with a strip search performed by staff of the same gender as the inmate except where circumstances are such that delay would mean the likely loss of contraband. Where staff of the opposite gender conduct a visual search, the reasons for the opposite gender search are documented in the inmate's central file. Body cavity searches are conducted upon the approval of the Warden or Acting Warden and only if the Warden or Acting Warden has a - reasonable belief that an inmate is concealing contraband in or on his person. These searches are conducted only by designated qualified health personnel of the same gender as the inmate. Persons of the opposite gender are not to observe body cavity searches. 1 In order to detect the illegal use of drugs in an institution, the Federal Bureau conducts a urinalysis program that focuses on randomly selected inmates, those inmates returning from community activities, and those inmates who are determined by staff to be at high-risk for drug abuse. Each month 5% of the Bureau's population is randomly selected for urinalysis. Sanctions for those inmates charged with the illegal use, possession, or distribution of drugs in an institution include: loss of

31 -26- remission, placement in segregation, transfer to a higher security level institution, recommendation for parole retardation, and removal from preferred quarters, job assignments, and program participation. There are provisions for increasing the severity of sanctions based on repeated offenses. Refusal to submit a sample is considered equivalent to providing a sample which has been tested as positive. In 1987, after testing approximately 60% of the Bureau population on a random basis, the rate of unauthorized drug use was 2.3%. This low rate is attributed by the Bureau to its proactive approach in not only providing drug abuse treatment programs, but in attempting to detect and deter drug use within the institutions. NEW SOUTH WALES In New South Wales, the jail superintendent decides the maximum number of officers of the opposite gender to ensure a sufficient number of staff of the same gender to meet the needs of that particular institution. officers of both genders perform similar duties, with cross gender guarding restrictions in: areas involving strip searching, direct supervision of showers and in the sleeping quarters in minimum security jails. In emergency situations the gender of the officer is irrelevant. Government policy encourages the increased recruitment of women with evidence to date that mixed staffing is of benefit to both staff and inmates. NEW ZEALAND Contraband is defined as liquor, tobacco, money, or any article or thing in the possession of an inmate which is in contravention or intended contravention of the Penal Institutions Act. Searches are by visual examination and such visual examination may include looking into the mouth of an inmate with his consent, but no object should be put into the mouth to facilitate such an examination. Any person who enters an institution is liable to be searched. Where an officer has reason to suspect that any person within the institution, (with the exception of another officer), has contraband in his possession, a search may be ordered. The Superintendent must have reason to suspect to order a search of an officer. Persons who refuse to be searched shall be brought before the Superintendent, who may direct that the person be searched. Reasonable force may be used for the purpose of carrying out the search, which is to be conducted in a manner consistent with the necessity of discovering any concealed article. Regulations prohibit cross gender searches for both frisk and strip searches. Any inmate may be searched at any time and at least two inmates are selected daily to be completely searched. Every inmate is to be searched after returning from work, before

32 -27- being brought into the presence of the "Secretary or an Inspector or a Visiting Justice" and every inmate is to be completely searched before being locked in segregation. Authority for internal searching is contained in the Misuse of Drugs Act and requires an arrest for an offence under the Act and reasonable grounds for belief on a police officer's part that the suspect is secreting internally any property which may be evidence of the offence with which he or she is charged. The police cannot be summoned to have an internal examination carried out, but must first charge suspects and have reasonable grounds for thinking that they have hidden evidence of this offence within their bodies. Male custodial officers have been employed in female prisons for many years, with the employment of female custodial officers in male prisons beginning in November Prison Superintendents have been instructed that the searching policy was not to be regarded as a deterrent to the promotion of female officers in male prisons and that they should consider the necessity for changes in procedures to ensure that female officers were involved in a wide variety of shifts, and therefore work experience, which will enhance promotion prospects. SWEDEN Strip searches of female inmates can be performed and witnessed only by female personnel, however, there are no existing restrictions on strip searches of male inmates by female personnel. However, efforts are made to have the strip search conducted by male personnel where possible. NORWAY Cross gender guarding for both male and female inmates is authorized but cross gender strip searches are prohibited. Current hiring practices do not consider the gender of applicants and the regulations are currently being revised to propose policy similar to Sweden. The Equal Opportunities Commission has concurred with this proposed amendment. HOLLAND As a result of a male inmate recently being successful in a complaint against the Prison Service concerning a search by a female officer, policy has been revised to state that strip searches must as a rule be done by an officer of the same gender. Only in emergency cases, je. when there is a strong suspicion that someone is hiding a gun, can an officer of the opposite

33 -28- gender perform a strip search. All officers perform similar job assignments with the exception of assignments in the shower/bath areas. The unwritten rule for hiring practices is 25% female guards and 75% male officers in a male institution with no prescribed ratio for the female institutions. However, the ration of male officers within female facilities is well below 25%. Experiences with cross gender guarding has been positive. GERMANY General policy provides that officers in uniform who perform tasks related to security and discipline are to be of the same gender as inmates housed in each institution. Other employees who provide professional services ie. physicians, psychologists, teachers and social workers may be of the opposite gender. However, some female employees have recently been deployed in a few institutions for male prisoners but an evaluation on this new practice has not been made to date. Frisk and skin frisks are performed by officers of the same gender. ENGLAND The practice of opposite gender postings is a recent one. Policy states that an officer must not be present when an inmate of the opposite gender is strip searched, but there is no ban on the use of electronic searching aids that result in minimum bodily contact when an inmate is fully clothed. Although' opposite. gender searches do occur, searches of inmates in general are performed by officers of the same gender. The department ensures that in all establishments there are sufficient employees of the appropriate gender to carry out this task.

34 -29- DOCUMENT 5 PERSONAL SEARCHES IN THE PENITENTIARY CONTEXT Claire McKinnon Correctional Service Legal Services February 1989

35 AUTHORITY FOR SEARCH -30- The security and integrity of one's person and property has long been recognized as a basic human right. Historically, the law of trespass offered some limited protection at common law. Now, a reasonable expectation of privacy is constitutionally entrenched and guaranteed by s. 8 of the Charter. Section 8 provides: Everyone has the right to be secure against unreasonable search or seizure. There are two steps to determine whether a search offends section 8 of the Charter. The first is whether the search power is unreasonable and the second is whether the search, while otherwise justifiable, is nevertheless illegal because it is conducted in an unreasonable manner. A person can only be searched legally in Canada as incident to a valid arrest or pursuant to statutory authority. The Penitentiary Service Regulations, which are established pursuant to section 29(1) of the Penitentiary Act, are the source for the authority to search persons within a penitentiary. Section 41 of the Regulations sets out different standards for the search of visitors to the institution, staff members, inmates and vehicles on penitentiary property. A visitor may be searched where there is "reason to believe" he or she is in possession of contraband. If the visitor refuses to be searched, the Regulation provides that he shall be escorted from the institution. The search of a staff member may occur only where the "institutional head has reason to believe" that a member has contraband in his or her possession. Cursory, non-intrusive searches of personal effects may be routinely performed on staff entering and leaving the institution without there existing a reason to believe on the part of the warden that the individual has contraband in his or her possession. Inmates are subject to broader search powers and may be searched where a staff member "considers such action reasonable to detect the presence of contraband or to maintain the good order of the institution". This is a subjective determination on the part of the staff member, as distinguished from the objective criterion required for searches of staff and visitors. Furthermore, this standard permits the use of routine searches, where appropriate. In the case of routine searches, there does not have to be a suspicion about a particular individual to justify the search of a group of inmates. The power to search inmates is not limited to the control of the proliferation of contraband. The standard applied to inmates includes the much broader "interests of good order" test which, along with the lower requirements for instituting a

36 -31- search, considerably expands the basis for inmate searches. The need to control the inmate population and the danger posed by contraband within institutions provide the justification for the broad search authority. The Federal Court of Appeal in A.G. Canada et al. v. Weatherall (June 28, 1988, F.C.A.) held that the typically exigent circumstances which prevail in federal penitentiaries justify different considerations in the searching of inmates which might not necessarily apply to the general population. Mr. Justice Stone approved of the following assêssment made by the Trial Division in Weatherall: Prisoners are mobile, and the evidence of prison officers indicated that with the passage of any appreciable time or the movement of inmates, even under surveillance, they are often able to get rid of contraband. This points to the urgency of such searches. CONTRABAND Searches are carried out in order to detect contraband. Contraband is defined in the PenitentiarV Service Regulations as anything that an inmate is not permitted to have in his possession. To determine what an inmate may not have in his possession, it is necessary to refer to the Commissioner's Directives since the Regulations leave this unstated. Courchesne v. Procureur General du Canada (1984), 18 C.C.C. (3d) 275 (Que. C.A.) held that the because the Regulations did not specify what is contraband, the offence of delivering contraband was incompletely defined and reference could not be had to the Commissioner's Directives to expand upon the definition. The fact that the accused was a penitentiary officer with full access to the Commissioner's Directives did not influence the decision of the court. Courchesne is based on sound legal reasoning and it demonstrates the flaws in the current Regulation. The requirements of the law must be sufficiently certain to permit a person to know what is prohibited or he cannot be convicted. If the delivery of contraband to an inmate is to be prohibited, there must be enough precision in the law to make it clear what constitutes contraband. The easiest way to achieve this end would be to make it an offence to deliver or attempt to deliver anything to an inmate unless authorized by the penitentiary director. If appropriate, there could be exclusions. This would be preferable to attempting to provide an exhaustive list of what constitutes contraband since the list would be very lengthy and inevitably incomplete.

37 -32- PRIVACY INTERESTS The Supreme Court of Canada held in Hunter v. Southam [1984], 2 S.C.R. 145, that the purpose of section 8 is to protect individuals from unjustified state intrusions. Section 8 does not in itself confer any powers of "reasonable" search and seizure on federal or provincial governments but instead it protects a reasonable expectation of privacy on the part of every citizen. It does not, however, grant unqualified protection for individual privacy: The guarantee of reasonable security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by section 8, whether it is expressed negatively as a. freedom from "unreasonable" search and seizure, or positively as an entitlement to a "reasonable" expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's intérest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement. (Hunter v. Southam Inc., supra, at ) Pi-ivacy is defined, in part, in Black's Law Dictionary as the right to be left alone by the state. The degree of privacy that one has a right to expect depends to some extent on the situation or the circumstances of the individual at the time that the state seeks to invade the person's privacy by means of a search. Weatherall v. A.G. Canada et al. (1987), 59 C.R. (3d) 247 (F.C.T.D.) held that the reasonableness of each individual privacy interest is shaped by the context in which it is asserted. Not all individuals enjoy the same expectations of privacy. In order for there to be a reasonable expectation of privacy the person must have exhibited an actual subjective expectation of privacy and the expectation is one that the society is prepared to recognize as reasonable. This latter factor will depend on a number of considerations including the person's location, the time of the intrusion and other relevant circumstances (R. v. Wong et al. (1987) 56 C.R. (3d) 352 (Ont. C.A.)). This principle was recently confirmed in R. v. Simmons, (S.C.C., Dec. 8, 1988, unreported). The Supreme Court of Canada recognized that the degree of personal privacy expected at a customs station is lower than in most other situations since people do not expect to be able to cross international borders free from scrutiny. Based on the Supreme Court's analysis, it follows that an inmate may reasonably expect only a very limited degree of privacy relative to a person in other circumstances. Nevertheless, it must be recognized that inmates still enjoy some residual privacy

38 -33- which is subject to protection under the Charter. Therefore, they are entitled to protection against unreasonable searches and searches conducted in an unreasonable manner, even if such searches are otherwise justifiable. The difference between inmates and others is that the standard for assessing reasonableness in a penitentiary context will be much lower than in other circumstances. Dignity is not a term which is easily defined. It may be seen as a recognition that every individual is entitled to respect and consideration and o be treated in accordance with basic human values. The concept of dignity is often linked with privacy. However, this term is not frequently discussed in the context of section 8 of the Charter and its relationship to the privacy interest protected by the Charter is somewhat vague. The Correctional Service Mission Statement recognizes that we must respect the dignity of inmates but it does not clearly define what is meant by "dignity". Although dignity as a concept appears to be closely linked with privacy, it appears to go farther. A person may suffer an affront to his or her dignity even though a search may be legally justifiable. It is possible that even though highly intrusive searches affect the dignity of the individual, if they are conducted in compliance with the Charter, the person's dignity will be protected at least to some extent. However, mere observance of constitutional requirements may not necessarily afford that best possible protection to the person's dignity. For example, while the Charter may permit the use of the dry cell and body cavity searches in appropriate circumstances, this procedure would still undermine an inmate's dignity. Therefore, in attempting to respect the dignity of an inmate it may sometimes be necessary to go farther that the mere observation of the protections enshrined in the Charter of Rights. Dignity became an issue in Conway v. The Queen (1987) 57 C.R. (3d) 247 (F.C.T.D.) in respect of section 8 of the Charter. Strayer J. ruled that forcing male inmates to be exposed to female guards while they were in their cells undermined their dignity:...inmates cannot reasonably expect to be free from surveillance. If they have concerns about being seen in a state of partial or complete nudity or performing some bodily function, they must be expected to take certain steps within their means to minimize such possibilities. At the same time I believe it is an unnecessary intrusion on human dignity, in the absence of an emergency, for female officers to view inmates in their cells in such circumstances.

39 -34- It is interesting that Strayer J. limited this to non-emergency situations. This is basically a recognition of the fact that there are times or circumstances where it is impossible to carry out a search without offending an individual's dignity and that this is justifiable under the Charter. SEARCH PROCEDURES The Correctional Service uses a variety of search procedures to control the flow of contraband and maintain the security and good order of the institution. A frisk search is a search of a clothed person from head to foot conducted by hand and includes the method of searching by the use of a hand-held.scanning device. If necessary a frisk search may be expanded to require the person being searched to raise, lower, or open outer garments of clothing to permit visual inspection. A frisk search is considered to be minimally intrusive, especially if conducted with a handheld scanner. However, one inmate has objected to females conducting these searches on males and the matter will be brought before the Federal Court once again. At the Trial Division in Weatherall Mr. Justice Strayer held that frisk searches by persons of the opposite sex did not infringe section 8 of the Charter. This was confirmed in Simmons. In Weatherall evidence was not called to demonstrate that frisk searching in penitentiaries may involve touching the genital area of the person being searched. A court with this evidence before it might decide differently on the reasonableness of cross sex frisk searches. A strip search is a visual search of a completely unclothed person. This type of search requires the individual to bend over and allow for visual inspection of cavity areas. In addition, all clothing and possessions are to be searched. The Commissioner's Directive further stipulates that this type of search shall normally be conducted in the presence of a witness. Weatherall held that frequent strip searching is not unreasonable in the penitentiary setting, although it is unreasonable for it to be conducted in the presence of a member of the opposite sex. As in the case of all searches, the strip searching authority could also be abused in the sense that it was performed on an arbitrary basis.or done in an reasonable manner (e.g. performed in the presence of a member of the opposite sex in a non emergency situation, involved unnecessary humiliation, etc.). Where a non-routine strip search is conducted both courts in Weatherall indicated that there should be a meaningful post-search review by a superior officer. A body cavity search involves a physical examination of all body openings. This type of search must be conducted by a physician in the presence of a witness and requires the consent of the

40 -35- individual and the approval of the Director. However, should an inmate refuse to undergo a body cavity search, the Director may authorize such use of force as is necessary to conduct the search" where he or she determines that such a search is essential and considers that the contraband could be injurious to the safety of the.inmate or other persons". A court might find that a body cavity search was unreasonable where physical force was used to conduct the search since the person being searched could be injured if the search is conducted on a nonconsensual basis. In non-prison contexts, the courts have stated that there must be strong reasonable and probable-grounds to believe that a person is concealing contraband in order for a body cavity search to be justified. Chief Justice Dickson also implied this in Simmons, noting that the greater the intrusion, the greater must be -the justification for the search. X-rays are used to detect contraband concealed in a person's body. This search must be performed by a qualified technician and requires the written consent of the person to be searched. Although not intrusive in the sense of exposing oneself to others, as in the case of a strip or body cavity search, an x-ray could be objected to on the basis that it is potentially harmful if used regularly and it subjects the person to a degree of. scrutiny in much the saine way as a body cavity search. The Supreme Court of Canada in Simmons identified x-rays as a highly intrusive search procedure. Consequently, it would appear that grounds for an x-ray search would have to be at least as strong as those for a body cavity search. The dry cell consists of an empty room that affords the inmate no means of disposing of contraband. The inmate wears an institutional smock and is under constant supervision while in the cell. It is used where the inmate refuses to submit to another method of search. This is a highly intrusive search procedure and significantly undermines the dignity of the inmate. It is intrusive in respect of the constant surveillance, including the viewing of the inmate while he performs his bodily functions in the absence of a toilet. This search procedure was challenged in R. v. Henderson (1988, Alta. Prov. Ct., unreported). In this case the inmate was initially placed in a dry cell but eventually consented to a body cavity search. A condom filled with cannabis resin was found and Henderson was charged in outside court. The court ruled that the dry cell procedure, followed by a "consensual" body cavity search did not contravene the Charter of Ricrhts. The inmate has appealed this decision but the appeal is not expected to be heard prior to June Urinalysis, as it is currently utilized, requires inmates to submit urine samples to staff who have reason to believe that they have ingested intoxicants. The urinalysis program was challenged in Dion v. Director of Cowansville Institution (1986),

41 C.C.C. (3d) 108. The Quebec Superior Court held that the procedure violated the inmate's right to life, liberty and security of the person under section 7 of the Charter. This ruling is under appeal and its effect has been limited to Quebec. In the meantime the Jackson case will bring the matter before the Federal Court of Canada in the near future. That trial will likely explore a broader range of issues than the Dion case. Legal concerns about this procedure are further discussed below. LEGAL JUSTIFICATION FOR INMATE SEARCHES a. Frisk and StriD Searches As in all searches, the-constitutionality of inmate searches depends on whether the authority to conduct the search is reasonable. In other words, whether the limited privacy rights of the inmate give way to the legitimate state interest in controlling inmates within penitentiaries. Moreover, in all cases the degree of intrusiveness of the search has to be reasonable under the circumstances. Clearly a certain amount of routine searching must take place in order to maintain general institutional security. Searches on this basis would typically be conducted when an inmate is entering the institution, after visits, when leaving workshop areas, etc. Re Maltby et al. and Attorney General of Saskatchewan et al. (1982) 2 C.C.C. (3d) 153 (Sask Q.B.) established that the use of strip searches following inmate visits does not constitute an unreasonable search or an invasion of the inmate's right to security of the person guaranteed by sections 8 and 7 respectively of the Charter given the necessity of ensuring institutional security. Based on this principle, it is justifiable to institute routine frisk and strip searches of inmates in circumstances where there is a significant risk that contraband will be introduced into the inmate population. However, while frisk searches might be routinely conducted whenever an inmate moves from one part of the institution to another, such frequent strip searches would not likely be justifiable. The high degree of intrusiveness of such a practice would require strong evidence of a legitimate overriding state interest. On the other hand, strip searches are probably acceptable when the inmate enters or leaves an area where there is a demonstrable risk that contraband will be introduced. Examples of this would include situations where inmates return from the visiting area or from a temporary absence outside of the institution. The requirement of a meaningful post-search review called for in Weatherall would apply to non-routine strip searches and all other intrusive searches, but presumably not to non-intrusive searches.

42 -37- b. Body Cavity and X-rav Searchei Although body cavity searches may be used on inmates, the degree of intrusiveness of these searches likely requires reasonable _grounds to believe that the inmate was secreting contraband in his body. It is very doubtful that a court would uphold routine body cavity searches. In fact, it would closely examine the reasonable and probable grounds for conducting the search if it were challenged by an inmate. As the Supreme Court ruled in Simmons, the standard for reasonableness for this type of -search will be high because of its intrusiveness. Other highly intrusive measures would meet with a similar degree of scrutiny. X-rays, for example, would likely have to be carried out by a qualified technician and be based on reasonable and probable grounds. Presently, consent is required before the x-ray is conducted. Care must be taken to ensure there are reasonable and probable grounds even if consent is obtained since the person x-rayed may later allege that the consent was not freely given and the procedure could be called into question. c. Urinalysis Urinalysis is another procedure which has not had a great deal of judicial scrutiny. In the United States it has been established that urinalysis is a search within the meaning of the Fourth Amendment. It has not yet been determined in Canada whether urinalysis constitutes a search under section 8 of the Charter, although such a conclusion is likely given the American experience and other Canadian cases relating to the taking of other bodily fluids such as blood. Dion, the only Canadian case on the issue, was decided on the basis of section 7 of the Charter - life, liberty and security of the person. Galipeau J. stated that the guarantee of liberty and security of the person in section 7 encompasses the right of a citizen to consume, if only on occasion, certain intoxicants and the right not to be subject to an obligation to provide a urine sample to whomever wishes to detect the intoxicant in his body. To deprive a person, even an inmate, of this right the legislator must act in accordance with the principles of fundamental justice. Section 39(i.1) of the Penitentiary Service Requlations was held to be arbitrary and therefore contrary to the principles of fundamental justice because in creating the disciplinary offence of consuming or absorbing an intoxicant it did not discern between the different circumstances in which the inmate may find himself or the nature of the intoxicant. A total prohibition on intoxicants without specifying the reason was arbitrary in the opinion of Galipeau J.

43 -38- Dion further held that section 41.1 of the Regulations, which empowers a member of the Service to demand a urine sample, is contrary to section 7 because it gives the member absolute power to require the sample even if the inmate did not present any danger of committing disciplinary offences or acts linked to the consumption of intoxicants. There is no requirement that the employee act on reasonable and probable grounds and the inmate is therefore subject to an arbitrary exercise of discretion. The Dion decision is based on the questionable premise that in some circumstances inmates have the right to use intoxicants. However, although this aspect of the decision is certainly suspect, the portion dealing with arbitrariness under section 41.1 does not necessarily, rely on this premise. Rather, it relates to the lack of controls on a member requiring a urine sample, which is also a consideration under section 8 of the Charter dealing with searches. It would seem to be more appropriate to deal with urinalysis as a search procedlire and therefore to subject it to scrutiny under section 8 of the Charter rather than section 7, although the Jackson case will likely be argued on both of these provisions. American courts have held that urinalysis is an intrusion beyond the body's surface and as such is a search affecting the dignity and privacy of an individual (Storms v. Coughlin 600 F. Supp. 1214)(S.D.N.Y. 1984). It was also held, in McDonnell v. Hunter 612 F. Supp 1122, aff'd 809 F. (2d), 1302, however, that urine tests are less intrusive than other bodily invasions (e.g. blood tests, strip searches or body cavity searches). The sliding scale of privacy expectation is also important for assessing the constitutional validity of urinalysis. The greater the public interest in ensuring a particular group of persons is drug free, the easier it will be to justify an intrusion on the privacy of the individual. For example, in view of public safety considerations it is probably more justifiable for airline pilots to be subjected to urine tests than it would be for airline ground workers, although this has never been tested in Canadian courts. Similarly, controlling intoxicants in the inmate population in order to prevent violence and promote rehabilitation may reasonably be viewed as an important public objective. This goal, combined with the inmates' lower expectation of privacy, provide a good argument for justifying routine urinalysis testing. McDonnell approved random urine testing as long as it was performed uniformly or by systematic random testing. The potential for arbitrary or unfair searches of individuals is eliminated by the use of random testing and individuals in a particular group recognize that by virtue of belonging to the group they may be required to submit to the test. McDonnell also held that if random testing is not done, the test should be grounded on reasonable suspicion based on specific objective

44 -39- facts and reaeonable inferences drawn from those facts. Because the standard for testing on an individual basis appears to be stricter than for random testing, an inmate would have broader grounds to challenge a search based on reasonable suspicion than one conducted as a result of random selection. A court's assessment of the reasonableness would probably depend also on the manner in which the analysis took place. Here, respect for the dignity of the individual might come into play. The taking of the sample should not be humiliating but close scrutiny to ensure that the sample is genuine could likely be justified. The technician would have to be qualified and positive results confirmed. The testing procedure must be trustworthy for it to be reasonable. Furthermore, as in drug prosecutions, the chain of possession of the sample should be well documented so that there is no question regarding the origin of the sample. Based on the American experience, it appears that urinalysis of pentientiary inmates will probably not contravene the Charter if performed in a reasonable manner on a random basis. The Jackson litigation will determine whether or not this is the case and whether the current provisions of the Regulations authorize such testing. Testing based on suspicion will have to meet stricter criteria in that the objective facts will have to support the reasonable inference that the inmate has ingested an intoxicant. In both cases, the testing will have to be conducted in a reasonable fashion, with the minimal possible intrusion into the inmate's privacy and with adequate retesting of positive samples. CROSS SEX ISSUES The searching of a male inmate by a female guard raises issues of the privacy and dignity of the inmate. A search that might otherwise be reasonable could be held to be unreasonable if conducted by a member of the opposite sex. For example, Weatherall established that an otherwise legitimate strip search becomes unreasonable if it is conducted in front of a member of the opposite sex on a non-emergency basis. In an emergency, the courts have evidently concluded that it is permissible for a female guard'to be present, even though this may significantly undermine the inmate's dignity. To date, the courts have not found that cross sex frisk searches violate the Charter since it has been repeatedly stated that frisk searches are minimally intrusive. In Weatherall Strayer, J. stated: As for cross-gender frisk searching, I am unable to conclude that this is "unreasonable" within the meaning of section 8 of the Charter given the inevitable loss of privacy which is implicit in the prison situation, the order and security requirement of the institution,

45 -40- the relatively minor intrusion on personal integrity, and the benefit of providing employment opportunities for women. However, if a court has evidence that the frisk search involves touching the genitalia it is quite possible that different consideration would be given the reasonableness standard. Weatherall establishes that cross sex strip searches are not constitutional except in emergency circumstances and "intrusive" frisk searches might be found to be in this category, depending on the type of evidence the complainant brings to establish his humiliation or discomfort. The court stated in Weatherall that the reasonableness standard would not be based on the feelings of the "hypersensitive" so a court would therefore consider the reaction of the ordinary person to such touching by someone of the opposite sex. While it would not be difficult to establish the need for the use of routine and regular frisk searches, it is possible that "intrusive" cross sex frisk searches could be found to be unjustifiable under section 8. The presence of females on penitentiary ranges raises another issue under section 8 of the Charter. The Federal Court Trial Division held in Conway v. The Queen 59 C.R. (3d) 247, that in Collins Bay Penitentiary it is unlawful, except in emergency situations, for female guards to view male inmates in their cells, without the inmates' express or.implied consent, where such viewing is neither previously scheduled to the general knowledge of inmates affected nor previously announced to them by reasonable means. Of course, announcing that they were coming could negatively affect the female guards' ability to detect contraband and control illegal activities amongst the inmates. This case is under appeal. The Court of Appeal will have to decide whether the presence of female guards on the ranges contravenes the dignity and privacy interests of the inmates, and if so, whether society's interests in having females present outweighs the inmates' interests. Conway also discussed whether it is discriminatory that male guards are not permitted to come into direct contact with female inmates on the ranges whereas female guards can do so with male inmates. Mr. Justice Strayer concluded that this was discriminatory under section 15 of the Charter but that it was saved by subsection 15(2) which authorizes affirmative action programs to ameliorate the conditions of minorities and women. EMPLOYEE SEARCHES Employees working in penitentiaries may reasonably be said to have a lower expectation of privacy than individuals working in other areas. The security of the institution is paramount and persons who accept employment in a penitentiary must expect to be subject to more searches, more instrusions on his or her privacy, than the average individual.

46 -41- In determining whether the search of an employee was reasonable a court would weigh the state's interest in the security of penitentiaries against the member's privacy interest, as well as whether the search was conducted in a reasonable manner. In other words, the same criteria would be used as in the case of inmate searches. The difference would be that the employee's expectation of privacy would be higher so that there would have to be reasonable grounds to justify anything other than non-intrusive searches, e.g. cursory searches of personal possessions. Therefore, where a warden authorizes an instrusive search of an employee there should be reasonable and probable grounds to believe that the member is concealing contraband. If it is the warden's belief that the contraband in question, if found, could lead to criminal charges, the employee should be informed of his rights and be given the right to retain counsel prior to the search. VISITOR SEARCHES Any member may search a visitor where there is reason to believe that the visitor has contraband in his or her possession. The Commissioner's Directive requires that the search be conducted by a person of the same sex, except where a handheld scanner is used. Where a visitor refuses to submit to. a search he or she may be escorted from the institution. Except in cases of cursory or non-intrusive searches, the Simmons case indicates that even if the person complies with the request for a search, the person has a right under the Charter to be informed of his or her rights and to retain and instruct counsel prior to the search. Caselaw has further established that the right to contact counsel entitles a person to speak to counsel in private. This presents the operational difficulty that the contraband could be disposed of while the person is speaking privately on the telephone; however, the Charter right cannot be respected without this ability to speak privately. Therefore in these cases arrangements must be made so that there could be direct observation of the person without the observer being able to hear the conversation. REMEDIES FOR ILLEGAL SEARCHES What are the consequences of an illegal search? The answer to this question depends on what came out of the search. If the person was charged with a criminal offence, the remedy under section 24 of the Charter is for the court to exclude the evidence obtained as a result of the search if it would bring the administration of justice into disrepute. In effect, the charge would probably be,dismissed due to a lack of evidence against the accused, whether the accused is an inmate, staff member or visitor.

47 -42- In cases where no charge resulted from the search, an application could be made under section 24 of the Charter to the court for such remedy as the court considered appropriate. This is a very broad remedial section. The probable result would be a declaration by the court that the search was illegal, although there is precedent for an award of money against the person who breached the complainant's Charter rights. CONCLUSION The law relating to search and seizure is Étill in its infancy stage in Canada, although there has been a great deal of litigation since the proclamation of the Charter in Many of. the issues specific to the Correctional Service will be adjudicated upon in the coming years but in the meantime we can make our best efforts to ensure that we are satisfied that the search authority that is relied upon is reasonble and that penitentiary officers conduct the searches in a reasonable fashion.

48 DOCUMENT 6 POSSIBILITIES OF AND LEGAL OBSTACLES TO REDUCING THE BURDEN OF PROOF AS IT APPLIES AT PRESENT AT DISCIPLINARY HEARINGS IN PENITENTIARIES Opinion written by Benoît Pelletier Counsel

49 Administrative law and the possibility of reducing the burden of proof A. Basic information There is no doubt that your disciplinary courts are purely administrative bodies, as opposed to judicial or quasi-judicial bodies. Accordingly, they are subject to what is commonly called a duty to act fairly. While this duty is significant, it is undoubtedly less onerous than the duty to act judicially, which applies to judicial and quasi-judicial bodies, and which involves stricter compliance with yet a larger number of rules that make up the full range of the rules of traditional natural justice. In Martineau (No 2), Dickson J described the place ot the inmate disciplinary board in the administrative spectrum as follows: [It]... is not a court. It is a tribunal which has to decide rights after hearing evidence. Even though the board is not obliged, in discharging what is essentially an administrative task, to conduct a judicial proceeding, observing the procedural and evidential rules of a court of law, it is, nonetheless, subject to a duty of fairness... 1 B.. The duty to act fairly and the "beyond a reasonable doubt" rule Does the duty to act fairly necessarily imply that disciplinary hearings must comply with the "beyond a reasonable doubt" rule? In other words, would a disciplinary body that applied a rule other than "beyond a reasonable doubt" at its hearings be acting unfairly toward the person whom it is judging? It appears to us that the requirement that the "beyond a reasonable doubt" rule followed at your disciplinary hearings considerably exceeds the only requirements that arise from the duty to act fairly in administrative law. In my view, this is the interpretation that must be given to the words of Dickson J, concurred in by Laskin and McIntyre JJ, in Martineau (No 2): Implicitly, then, the majority in Martineau 1. [ SCR 602, at page 629

50 -45- content in a duty of fairness resting upon the board - something more than the absolute minimum of "good faith", but something less than strict application of the procedure set forth in the directive. 4 [Emphasis added] The Commissioner's Directive is therefore not a code of procedure, violation of which is automatically a violation of procedural fairness. In fact, by imposing the "beyond a reasonable doubt" rule on your disciplinary bodies, you are not only imposing on them requirements that are intended for judicial bodies 3 but, in addition, you are imposing on them requirements that are so high that they are imposed on only some of the existing judicial bodies. In other words, the concept of procedural fairness in administrative law does not go so far as to require prison disciplinary bodies to apply the "beyond a reasonable doubt" rule to their hearings. There is therefore no need, in accordance with procedural fairness, to apply the "beyond a reasonable doubt" rule to purely administrative bodies such as your disciplinary bodies. In fact, I believe that in matters of prison discipline, procedural fairness, seen from the point of view of administrative law, would be quite well satisfied simely by applying the "balance of probabilities" rule. C. Judicial reticence to exercise the power of review and iudicial respect for the administrative constraints specific to the prison system The tone was set by Pigeon J, speaking for the majority, who stated in Martineau (No 2): 2. [1980] 1 SCR 602, at p As Laskin J stated in his dissenting reasons in Martineau (No 11, [1978] 1 SCR 118, at pages 120 and 121: "The directives under which the order was made plainly require that an inmate charged with a flagrant or serious offence (and again there is no dispute that the charges here were of such offences) must be given notice of the charges, be present personally to hear the evidence against him, be given an opportunity to make full answer and defence before a finding is made and have the advantage of the principle of reasonable doubt. No citation of authority is needed to underline the fact that the directives establish a judicial or quasi-judicial process for the hearing of charges of a flagrant or serious offence." [Emphasis added]

51 -46- I must, however, stress that the Order issued by Mahoney J deals only with the jurisdiction of the Trial Division, not with the actual availability of the relief in the circumstances of the case. This is subject to the exercise of judicial discretion and in this respect it will be essential that the requirements of prison discipline be borne in mind, just as it is essential that the requirements of the effective administration of criminal justice be borne in mind when dealing with applications for certiorari before trial, as pointed out in Attorney General of Quebec v Cohen. It is specially important that the remedy be granted only in cases of serious injustice and that proper care be taken to prevent such proceedings from being used to delay deserved punishment so long that it is made ineffective, if not altogether avoided. 4 In the same case, Dickson J stated: It should be emphasized that it is not every breach of prison rules of procedure which will bring intervention by the courts. The very. nature of a prison institution requires officers to make "on the spot" disciplinary decisions and the power of judicial review must be exercised with restraint. Interference will not be justified in the case of trivial or merely technical incidents. The question is not whether there has been a breach of the prison rules, but whether there has been a breach of the duty to act fairly in all the circumstances. The rules are of some importance in determining this latter question, as an indication of the views of prison authorities as to the degree of procedural protection to be extended to inmates. 5 Thus the courts should hesitate to review the decisions of disciplinary bodies. Moreover, in exercising their powers of review they must take into account the need for the requirements that they impose on the disciplinary bodies in question, as following from procedural fairness, to be as consistent as possible with the exigencies of the effective administration of 4. [1980] 1 SCR 602, at page [1980] 1 SCR 602, at page 637

52 -47- prison discipline. In other words, the courts will not voluntarily intervene in the exercise of disciplinary powers and, when they do, they will take pains not to jeopardize either the security of the institution or correctional objectives. Moreover, in determining the weight to be given to these two latter factors, the courts will not hesitate, as Dickson J said in the preceding passage, to rely on the "views of prison authorities". It is self-evident that if in the interests of the effective administration of prison discipline you had to reduce the burden of proof from "beyond a reasonable doubt" to "on the balance of probabilities", it is highly likely that the courts would find that such a change does not infringe the concept of procedural fairness with which your disciplinary courts are bound by the principles of administrative law to comply. D. Conclusion In conclusion, I believe that it can be said that the reduction of the burden of proof at your disciplinary hearings in the manner proposed is possible in administrative law for the following reasons: a) The concept of procedural fairness that applies to administrative bodies such as your disciplinary courts is simply - the "balance of probabilities" rule. It is not necessary to impose the "beyond a reasonable doubt" rule on such bodies in order to fulfill the requirements of the duty to act fairly; (b) The courts are required to take into account the operational difficulties you face in the administration of prison discipline. There is no doubt that if such difficulties led to your reducing the burden of proof at your administrative hearings, the courts would not see any obstacle to such a reduction, given the present state of administrative law. It remains to determine what the courts would think in light, this time, of constitutional law and, more specifically, of the Canadian Charter of Rights and Freedoms. 2. The Canadian Charter of Rights and Freedoms and the possibility of reducing the burden of proof

53 -48- In my opinion of last July 27 I have already discussed the obstacles that the Canadian Charter of Rights and Freedoms might present to reducing the burden of proof that now applies at your disciplinary hearings. At that time I specifically identified sections 7 and 11 as potential sources of such obstacles. In this opinion I would like to deal more explicitly with this point.. A. Section 11 of the Charter Paragraph (d) of section 11 of the Charter protects the wellknown concept of the "presumption of innocence". The burden of proof "beyond a reasonable doubt" that is imposed on the party who is trying to establish an accused's guilt has always, in our - criminal and penal law, been considered to be an essential corollary to the right to be presumed innocent. Paragraph 11(d) could therefore be argued by anyone who wants to impose or uphold the "beyond a reasonable doubt" rule in our disciplinary hearings. However, it is far from clear that section 11 of the Charter applies to disciplinary proceedings. Are the disciplinary offences contained in the Penitentiary Service Regulations "offences" within the meaning of the English version of section 11? In the decision of the Supreme Court of Canada in R v Wigglesworth 6, the Court held that members of the RCMP who are subject to proceedings before the Royal Canadian Mounted Police service board were entitled to the protection of the provisions of section 11 of the Charter. As Madam Justice Wilson stated at page 554 of the decision: The rights guaranteed by s 11 of the Charter are available to persons prosecuted by the State for public offences involving punitive sanctions, je, criminal, quasi-criminal and regulatory offences, either federally or provincially enacted. The question is therefore whether inmates who are accused of having committed disciplinary offences may also rely on the protection of the relevant provisions of section 11. Before the Supreme Court delivered its decision in Wigglesworth, the Federal Court of Appeal had recognized, in its decision in Knockaert v Canada 7, that section 11 of the Charter could apply 6. [1987] 2 SCR [1987] 2 FC 202

54 -49- Before the Supreme Court delivered its decision in Wicralesworth, the Federal Court of Appeal had recognized, in its decision in Knockaert v Canada 7, that section 11 of the Charter could apply to proceedings at disciplinary hearings in your penitentiaries. We should however take note of the interesting opinion of Marceau J, and specifically the following passage:... the inclusion of disciplinary proceedings in the sphere of application of section 11 is bound, as I see it, to be the source of extremely serious, if not insurmountable, practical difficulties. 8 After the decision of the Supreme Court in Wigglesworth, however, the Ontario Court of Appeal held in R v Shubleye, as we noted above in our first opinion, that prison disciplinary offences are not "offences" within the meaning of the English version of section 11, and accordingly that inmates subject to proceedings for such offences could not rely on the relevant provisions of section 11. It is therefore self-evident that the question of whether section 11 of the Charter may apply to procedings at your disciplinary hearings is still far from settled. However, I believe, in light of the decision in Wigglesworth, that the courts will ultimately hold that section 11 does apply to your disciplinary hearings, and so there would be a number of arguments in favour of applying the "beyond a reasonable doubt" rule at those hearings. One such reason would certainly be the fact that the courts could, precisely because of the conclusion they reach, acknowledge that your disciplinary hearings have a certain penal character. There would also be the fact that the right to be presumed innocent that is conferred by paragraph (d) of section 11 of the Charter would undoubtedly be considered to imply that the "beyond a reasonable doubt" rule should be applied. On the other hand, if 7. [1987] 2 FC at page 214. It should be noted that Marceau J dissented on the specific question of the application of section 11 to disciplinary hearings, although in the final result his decision on the matter as a whole, like that of the judges of the majority, was to dismiss the appeal CCC (3d) 481. It should be noted that this decision has been appealed to the Supreme Court of Canada. It is highly likely that the case will be heard by the Supreme Court during the fall 1989 sittings.

55 -50- B. Section 7 of the Charter This section confers on everyone the right to liberty and security of the person, and provides that no one may be deprived thereof except in accordance with the principles of fundamental justice. There has always been a great temptation to identify the "principles of fundamental justice" with the "rules of natural justice", and so to find in the provisions of section 7 some constitutional protection of procedural fairness, which we have already discussed in the context of our examination of administrative law. Thus Thurlow CJ stated in Howard v Stony Mountain Institutionl, Pratte J concurring:... the standard of what is required to satisfy the section in its procedural sense, as it seems to me, is not necessarily the most sophisticated or elaborate or perfect procedure imaginable but only that of a procedure that is fundamentally just. What that may require will no doubt vary with the particular situation and the nature of the particular case. An unbiased tribunal, knowledge by the person whose life, liberty or security is in jeopardy of the case to be answered, a fair opportunity to answer and a decision reached on the basis of the material in support of the case and the answer made to it are features of such a procedure. 11 I noted above, in my examination of administrative law, that the duty to act fairly could quite well be satisfied by applying the burden of proof "on the balance of probabilities" rather than "beyond a reasonable doubt". I therefore believe, given the close connection that the courts have until now drawn between the rules of traditional natural justice and section 7 of the Charter, that section 7 does not present a serious obstacle to the application of the "balance of probabilities" rule to prison disciplinary bodies. I say this, however, without being able to guarantee it, since it is still very difficult to predict all the consequences and ramifications that may flow from the provisions of section 7 of the Charter. As an example of the complexity of the question, I would like to note that in the same decision of the Federal Court of Appeal, in Howard, MacGuigan J suggested in his reasons that section 7 be interpreted more so as to promote 10. [1984] 2 FC at page 661

56 I I -51- extending the rules of natural justice that apply to your disciplinary hearings and increasing the requirements that result from these rules. In other words, MacGuigan J seems to have seen in section 7 of the Charter a provision that could be used to innovate in respect of natural justice, to the point of being used to impose additional new procedural obligations on your disciplinary bodies which would perhaps not be required by the rules of administrative law alone. I must therefore conclude that it is still very difficult to predict the consequences that section 7 of the Charter might have for the application of one burden of proof rather than another to your administrative tribunals. One thing seems certain to me, however, and that is that the operational arguments alluded to by Richard Harvey will have to be asserted primarily in the context of the debate that will take place concerning the interpretation of the provisions of this section. Permit me to explain this statement more fully, in the following discussion. C. The relationship between collective and individual interests In the decision of the Supreme Court of Canada in Hunter et al v Southam Inc12 1 Dickson J sought, in the context, however, of an examination of the provisions of section 8 of the Charter, to determine the weight of collective interests in relation to private interests, in order to determine whether there had been a prima facie violation of this section. In other words, in order for the Court to'establish whether there had been a prima facie violation of section 8, it weighed the collective and individual interests, even before considering whether there might be any justification within the meaning of section 1 of the Charter (... which we shall discuss in detail a little later). I believe that collective and individual interests must also be balanced in 12. [1984] 2 SCR 145

57 -52- this way in the case of section 7 of the Charter13, in order to determine whether there has been a prima facie violation of its provisions. In other words, if the courts were to recognize that reducing the present burden of proof at your disciplinary hearings constituted a restriction on inmates' rights to liberty and security, the courts would also have to ask, in order to determine prima facie whether section 7 had been violated, whether the interests of effective adminstration of prison discipline should nevertheless take precedence over such a restriction on inmates' rights. This is clearly the point on which you would be required to establish the weight to be given to your operational arguments as against the rights of the inmates. On this point I would like simply to say that the courts have at all times recognized the unique character of the prison situation, and have always been sensitive to its operational exigencies and constraints. On this point, in my examination of administrative law, I have already cited passages taken from the reasons of Dickson and Pigeon JJ in Martineau (No 2). Comments to substantially the same effect may be found in numerous other decisions. For example, Muldoon J of the Federal Court, Trial Division, stated in Russell v Radley 14 : It behooves the Court to declare and to apply the supreme law of Canada in so far as it is possible to do so, limiting the articulation 13. It is highly likely that collective and individual interests must also be balanced in the context of paragraph 11(d) of the Charter. I believe, however, that the provisions of that paragraph provide less opportunity for such an examination than section 7, given the more technical nature of paragraph 11(d). Section 7 actually contains the expression "rules of fundamental justice", an extremely vague expression the meaning of which may vary substantially from one case to another, depending precisely on the weight given to collective interests in relation to individual interests. On the other hand, the meaning of paragraph 11(d) is more precisely stated, leaves less opportunity for varying interpretations and is less likely to be altered to suit the collective interests involved. 14. [1984] 1 FC 543

58 -53- of the rights guaranteed in that law only by the measure of what is demonstrably justifiable in a free and democratic society. Section 11 of the Charter is not intended to paralyze penitentiaries by overjudicializing disciplinary proceedings. The rights and freedoms proclaimed in April did not abolish those realities of prison discipline, even though some rights may now impinge upon it. For example, section 11 can apply unexceptionably in paragraphs (a), (b) and (c) to inmates charged with disciplinary offences, whereas paragraphs (e) and (f) are not applicable. Paragraphs (g), (h) and (i) are not problematic. Paragraph 11(d) needs analysis because it would appear that in a prison situation some limitations are demonstrably justifiable. "To be presumed innocent until proven guilty according to law" is surely applicable to inmates in the applicants' circumstances. Indeed, the Commissioner's Directives are consonant with this, bearing in mind that the law in question is those portions of the Penitentiary Service Regulations made in relation to prison discipline, for swift, summary hearings. 15 Similarly, Cattanach J of the Federal Court explained the need to maintain firm control over inmates in the following tems 4 in Re Davidson and Disciplinary Board of Prison for Women et all 6 The very nature of a prison is such prison officers must make immediate decisions, the disobedience of which by inmates will necessarily result in charges being laid and restrictions and penalties imposed. This is essential and must be made as part of the routine process. Disobedience to legitimate orders in this regard must be followed by 15. at pages 566 and (1981), 61 CCC (2d) 520 (FC TD)

59 -54- swift and certain punishment. If the powers and authority of the prison officers are curbed and the deterrent of speedy and sure punishment removed the consequences will be chaotic. Thus it has been frequently said that interference with this routine activity by the Courts would be as unthinkable as with the actions of the sergeant-major on the parade ground and the actions of the commanding officer in exercising powers of summary discipline in his orderly room. This, in my view, corresponds with the summary discipline to be exercised by the warden of a penitentiary, and now by the presiding officer of a Disciplinary Court appointed under s 38.1 of the Penitentiary Service Regulations and is an integral part of the operational management. 17 In R y Mingo et al 19 Toy J expressed a similar opinion on the consistent realities of prison discipline: An examination of the disciplinary offences in section 39 of the current Penitentiary Service Regulations, CRC 1978, c 1251, satisfies me that the disciplinary offences and the hopefully rapid disposition of those offences are a necessary adjunct required by the institutional heads to maintain discipline for the benefit not only of staff but other inmates in the institution as well as the offending inmate. 19 In Cardinal y Director of Kent Institution, Le Dain J statedn: These were in my opinion the minimal or essential requirements of procedural fairness in the circumstances, and they are fully 17. at page (1982), 2 CCC (3d) 23 (SCBC) 19. at page [1985] 2 SCR 643

60 -55- in the circumstances, and they are fully compatible with the concern that the process of prison administration, because of its special nature and exigencies, should not be unduly burdened or obstructed by the imposition of unreasonable or inappropriate procedural requirements. There is nothing to suggest that the requirement of notice and hearing by the Director, where he does not intend to act in accordance with a recommendation by the Segregation Review - Board for the release of an inmate from segregation, would impose an undue burden on prison administration or create a risk to security. 21 Finally, in Weatherall v Canada 22, the Federal Court of Appeal held, in reasons written by Stone J: In my view, in deciding the point we ought not to overlook these peculiarities of prison life and the special problems they present to prison administrators discharging their responsibility for "safety and security" of the institution. They suggest to me that these administrators are entitled to some deference in adopting and applying policies and practices required for the maintenance of order and security, and for the safety and protection of inmates and staff alike. This is not to suggest that the authorities and staff should have a completely free hand in these matters and.so abuse their powers. 23. It does not seem to me to be necessary to provide any further references to demonstrate my point: the courts will always give considerable weight to our organizational and operational concerns. This does not mean, however, that they will necessarily give your operational requirements precedence over inmates' rights once it has been clearly recognized that these rights are protected, for example, by section 7 of the Charter. It is quite impossible to predict at the present stage of the Charter's evolution how the courts will receive your operational arguments. It is even more difficult to make such a prediction 21. at page [1987] 1 FC 18 [Tr: [1989] 1 FC 18] 23. at page 42

61 -56- since what'you are suggesting is no more nor less than reducing the rights presently enjoyed by inmates. In my first opinion I highlighted the difficulties that arise from the desire to reduce inmates' existing rights at this time, when there is a particular tendency toward a generous recognition of rights and freedoms. I shall not repeat these comments. I would simply like to quote several passages from the excellent reasons of MacGuigan J in Howard, to which I referred earlier. Speaking first of penitentiaries, he said: "Order is both more necessary and more fragile than in even military and police contexts He then stated: It would be an ill-informed court that was not aware of the necessity for immediate response by prison authorities to breaches of prison order and it would be a rash one that would deny them the means to react effectively. But not every feature of present disciplinary practice is objectively necessary for immediate disciplinary purposes. The mere convenience of the authorities will serve as no justification; as Lord Atkin put it in General Medical Council v Spackman, [1943] AC 627 (HL), at page 638: "Convenience and justice are often not on speaking terms." 25 MacGuigan J thus drew attention to the fact that the argument on convenience and efficiency, while important, is not in itself conclusive. A little further, he stated: The right to counsel would, a fortiori, include the right to confront and crossexamine adverse witnesses, and so presents the greatest challenge to institutional interests, particularly that of quick punishment for infractions. It also bespeaks the fulness of the adversary process, subject to a broader rule of admissibility of evidence than in the criminal courts. It is also the only right in question, not only because it is the.subject of the challenge here but also because it is the only significant adversarial element that is not already available to inmates. 24. [1987] 2 FC 642 [Tr: [1984j 2 FC 642], at page [1984] 2 FC 642, at pages 681 and 682

62 -57- It may be that a recognition of the right to counsel would lead inevitably to the introduction of a prosecuting officer, the complete disappearance of any inquisitorial aspect to the process and the full acceptance of an adversarial system. I accept this as an accurate estimate of the likely consequences, but not as an argument in terrorem. If it is what fundamental justice requires, it is a step forward. rather than a limitation. 26 MacGuigan J thus advocated here an increase and not a reduction in the adversarial aspects of the proceedings of your disciplinary courts. The application of the burden of proof "beyond a reasonable doubt" is one of these adversarial aspects. Some will therefore find it tempting to argue, in light of the preceding Passage, that the "beyond a reasonable doubt" rule is itself part of fundamental justice and that there should be no retreat from it. In the same judgment, MacGuigan J stated, in reference to the progress embodied in the adoption of Commissioner's Directive No 213 in relation to the situation that had previously existed: Even more, the new procedural structure is still incomplete in its legality. Regulation 38.1, supported by subsection 24.1(2) of the Penitentiary Act, authorizes the appointment of presiding officers for disciplinary courts, but their use remains optional. The procedures at hearings and even the requirement that serious or flagrant offences should be tried by independent chairpersons are found only in Commissioner's Directives, which were held in Martineau (No 1) not to have the status of law. In the result, while a new legal system in prison disciplinary hearings may be in the process of evolution, it has not yet emerged. Legally speaking, the only advance has been to a fairer version of the same basic model considered by the Supreme Court in the two Martineau cases. The Canadian Charter of Rights and Freedoms does, however, introduce a distinctly new perspective: where it does not create any new 26. at page 684

63 -58- rights, it may nevertheless enhance existing ones. 27 Thus MacGuigan J sees the version in Commissioner's Directive No 213 as more compatible with the requirements of natural justice. He even added that the Charter may have the effect of extending the requirements of natural justice in respect of your disciplinary courts, beyond the procedure set out in the Directive in question. This will undoubtedly be interpreted by some as an argument in favour of consolidating or even expanding the prâcedural formalities contained at present in the Commissioner's Directive, including of course the application of the "beyond a reasonable doubt" rule. The courts that will have to rule on the legality of reducing the burden of proof applied at present by your disciplinary courts could very well adopt a position like that taken by MacGuigan J, and would find a close connection between the "beyond a reasonable doubt" rule and the contemporary requirements of natural justice, and ultimately permit the latter to triumph over any argument based on convenience and effectiveness that you might raise based on the difficulties presented by such a rule in the daily administration of prison discipline. On the other hand, the courts could very well be sympathetic to your arguments and limit the effect of section 7 of the Charter to what has been more the traditional understanding of the requirements of natural justice. On this point no one can predict the future. D. Section 1 of the Charter Section 1 specifically provides that the rights guaranteed by the Charter are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. This section therefore makes it possible, on the conditions prescribed therein, for limits to be placed on rights otherwise guaranteed by the Charter. Among these conditions is the specific requirement that no limit can be imposed otherwise than by law. It is therefore self-evident that if the courts were to find that reducing the present burden of proof were a limit on rights conferred on inmates by section 7 or 11 of the Charter, then even before seeking to apply the relevant provisions-of section 1 and to demonstrate that such a limit is reasonable and justified in a free and democratic society, you will first have to show that the Commissioner's Directive, for 27, at pages 672 and 673

64 -59- example, which imposed such a limit28 is indeed law. In the decision of the Supreme Court of Canada in R v Therens 29, Le Dain J stated with respect to the expression "by law" in section 1 of the Charter, Dickson and McIntyre JJ concurring: Section 1 requires that the limit be prescribed by law, that it be reasonable, and that it be demonetrably justified in a free and democratic society. The requirement that the limit be prescribed by law is chiefly concerned with the distinction between a limit imposed by law and one that is arbitrary. The limit will be prescribed by law within the meaning of s 1 if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements." In the saine decision, however, Estey J, who wrote the majority reasons, appeared to prefer a much more restrictive interpretation of the expression "by law" and seemed to wish to include in this expression only those limits prescribed by Parliament itself.-51 Commissioner's Directives are not prescribed by Parliament. They are administrative rather than statutory instruments, a was stated in the majority reasons in the Supreme Court of Canada decision in Martineau (No 1) 32, and they do not have the force of law: 28. I have assumed that the present burden of proof would be reduced by amending clause 26 of Commissioner's Directive No [1985] 1 SCR at page see at page 621: "Here Parliament has not purported to prescribe any such limit and hence s 1 of the Charter does not come into play." 32. [1978] J. SCR 118

65 I have no doubt that the regulations aré law. The statute provides for sanction by fine or imprisonment. What was said by the Privy Council with respect to orders in council under the War Measures Act in the Japanese Canadians case, at p 107, would be applicable: The legislative activity of Parliament is still present at the time wheri the orders are made, and these orders are "law". I do not think the same can be said of the directives. It is significant that there is no provision for penalty and, while they are authorized by statute, they are clearly of an administrative, not a legislative, nature. It is not in any legislative capacity that the Commissioner is authorized to issue directives but in his administrative capacity. I have no doubt that he would have the power of doing it by virtue of his authority without express legislative enactment. It appears to me that s 29(3) is to be considered in the same way as many other provisions of an administrative nature dealing with departments of the administration which merely spell out administrative authority that would exist even if not explicitly provided for by statute. In my opinion it is important to distinguish between duties imposed on public employees by statutes or regulations having the force of law and obligations prescribed by virtue of their condition of public employees. The members of a disciplinary board are not high public officers but ordinarily civil servants. The Commissioner's directives are no more than directions as to the manner of carrying out their duties in the administration of the institution where they are employed at page 129 (reasons of Pigeon J)

66 -61- It is therefore not surprising that Strayer J of the Federal Court of Canada, Trial Division, in Weatherall v Canada 34, clearly stated that the Commissioner's Directives are not "law" within the meaning of section 1 of the Charter. He expressed his opinion as follows: In particular, as I have indicated at various points earlier, the Commissioner's Directives cannot be regarded as "law" within the meaning of section 1. There is persuasive jurisprudence to this effect, based on the rationale that Commissioner's Directives are designed for the internal management of prison institutions. Their infringement may give rise to disciplinary action within the institution, but they create no legal rights or obligations. Therefore, such Directives cannot be regarded as legally effective to limit search powers nor can they be regarded as effective under section 1 as "limits prescribed by law" for the purposes of limiting rights guaranteed by the Charter. 35 The decision of Strayer J in Weatherall was appealed to the Federal Court of Appea1. 36 That Court unanimously allowed the appeal in part. It should be noted, however, thât the Federal Court of Appeal fully supported the finding of Strayer J that Commissioner's Directives are not law. After noting that this question was yet to be authoritatively decided, Stone J, delivering the reasons of the Court, stated:... I venture to suggest that the term "by law" in section 1 does not include the Commissioner's Directive even though its adoption is provided for in the statute. That directive was not, in its adoption, required to be put through any recognized 34. [1988] 1 FC at pages 413 and [1987] 1 SCR 118, at p 129 [Translator's note: correct citation for report of decision to FCA is [1989] 1 FC 18]

67 -62- legislative process, and may be altered without reference to such process, theoretically even at the 'whim of its creator. In this sense, the statute is "law" and so too are the Regulations. Directives, on the other hand, are, as Pigeon J described them [at page 129] in the Martineau case, mere "directions as to the manner... duties" are to be carried out. They are not "law". From the language used to authorize their adoption, when compared with the regulation-making power in subsection 29(1) of the Act, it is apparent that the directives were not intended to carry anything like the serious legal import of the Regulations. Though, obviously, the language of their authorization is similar in many respects to the regulation-making power, the intention seems to have been to provide for measures concerning the "good government of penitentiaries". I cannot regard paragraph 14 of the Directives as "law" in the sense that it could prescribe a limit authorized by section 1, and so result in a departure from the supreme law of Canada as enshrined in section 8 of the Charter. 37 I therefore believe that we can state that, according to the present trend in the case law in this area, the Commissioner's Directives are not law within the meaning of section 1 of the Charter. Accordingly, section 1 could not be argued in support of a Commissioner's Directive reducing the present burden àf proof (including an amendment to the present Directive No 580). Clearly, as was macre plain in the various passages quoted above, if the present burden of proof were to be reduced by amending the Penitentiary Service Regulations or the Penitentiary Act, then section 1 could be argued, since this would obviously be a limit on Charter rights prescribed by law proper. However, even in such a case the fact that section 1 could be arqued does not necessarily mean that the courts would find that it applies. Even if the present burden of proof were reduced by law and the provisions of section 1 could accordingly be argued, nonetheless you would have to prove that the other conditions for this section to apply were fulfilled, that is: (i) that it is reasonable to reduce the present burden of proof; and (ii) that such a reduction is justified in a free and democratic society. 37. at pages 35 and 36

68 -63- However, I do not believe that it would be difficult to demonstrate this latter aspect, given that all Canadian provinces apply the "balance of probabilities" rule to their prison discipline bodies and given that I would easily imagine that the same must be true in several other free and democratic societies. With respect to the first aspect, it requires that a criterion of proportionality be applied. While the nature of this criterion may vary, depending on the circumstances, the courts must in each case weigh the interests of society and of the individual. You would again be required, in order to prove this first aspect, to demonstrate that reducing the present burden of proof is justified by the operational difficulties that you experience as a result of its application. It is self-evident that it is absolutely impossible to predict how these arguments would be received by the courts. One thing is certain, and that is that the courts would very carefully weigh the question of whether your operational arguments are sufficiently significant, reasonable and rational to justify limiting a right guaranteed by the Constitution. E. Conclusion It is still difficult to predict in what way the Charter could present an obstacle to reducing the burden of proof before your disciplinary courts. First, the question of whether the provisions.of section 11 - and your particular concern, paragraph (d) thereof.- apply to prison disciplinary bodies is not yet settled. If the Supreme Court of Canada were to conclude in the Shubley case, which it will hear shortly, that section 11 can in fact be applied to such bodies, then undoubtedly it would be more difficult for you - given precisely that the presumption of innocence enshrined in paragraph 11(d) referred to above undoubtedly implies the burden of proving "beyond a reasonable doubt" - to reduce the burden of proof in question. In the contrary result, I believe that the chances of having the legality of such a reduction recognized would be greater. However, the battle would not by any means be won, because the provisions of section 7 must yet be overcome. Section 7 could be interpreted by the Court as expanding the requirements of traditional natural justice. Accordingly, while it is probable that the courts will find, as we have already noted, that natural justice seen from the administrative law point of view alone does not require the application of the "beyond a reasonable doubt" rule, nonetheless it is not certain that they would so find if natural justice were seen rather from the point of view of section 7 of the Charter. The whole thing

69 -64- might depend in large measure on the weight that the courts would agree to give to the collective interest in seeing that prison discipline is soundly and effectively administered as against the inmates' interest in being judged only according to the "beyond a reasonable doubt" rule. Finally, in the event that the courts found that reducing the burden of proof violated some one of the rights that inmates enjoy under sections 7 and 11 of the Charter, it would have to be determined whether you could find any assistance in section 1 of the Charter. That is far from certain, since the Commissioner's Directives which you would presumably use to reduce the present burden of proof would probably not be considered to be "law" within the meaning of section General Conclusion As I noted in my first opinion, administrative law does not present any obstacles to reducing the burden of proof. Rather, it is the Charter that could become a source of such obstacles, but at the moment we cannot predict the effects of the Charter provisions. If it were possible for me to make a recommendation to your Commissioner, it would be not to start on the road toward reducing the burden of proof at least before the Supreme Court of Canada has delivered its decision in Shublev. We will then know with greater certainty whether section 11 of the Charter could ultimately be argued by your inmates or not; I will of course be glad to discuss the question with you if you wish to have more details. signed Benoît Pelletier

70 (a) BACKGROUND -65- DOCUMENT 7 MALE EMPLOYEES IN PRISON FOR WOMEN The CSC does not employ male correctional officers at Prison for Women in contact posts. Exclusion orders have been granted in the past by the Public Service Commission in order to authorize the sole recruitment of women whenever a correctional officer position in the living areas at the Prison is vacant. The CSC is currently negotiating for a new exclusion order, but it is becoming increasingly difficult to justify such an order to the Commission, when female officers are deployed within male living units. A change to the current situation has been suggested by management and staff within the Prison. As well, a recent Public Service Commission decision regarding access by male officers to Correctional Supervisor competiidons at Prison for Women was rendered in favour of the male appellant. The exclusion of male guards.from contact posts in female institutions relates to the U.N. Declaration on Standard Minimum Rules for the Treatment of Prisoners of which Canada is a signatory. Article 53 of this Declaration states: (1) In an institution for both men and women, the part of the institution set aside for women shall be under the authority of a responsible woman officer who shall have the custody of the keys of all that part of the institution; (2) No male members of the staff shall enter the part of the institution set aside for women unless accompanied by a woman officer; (3) Women prisoners shall be attended and supervised only by women officers. This does not, however, preclude male members of the staff, particularly doctors and teachers, from carrying out their professional duties in institutions or parts of institutions set aside for women. Until recently, the Penitentiary Service Regulations provision at section 41(3) prohibited the search of female persons by male persons, thus effectively removing the possibility of employing male officers in contact positions. This section, however, was struck down in Federal Court by Justice Strayer's decision on cross-sex searching, and was not appealed. It is therefore no longer in force in law. Ironically, PSR 41(3) was the only provision in Canadian law even remotely connected to the Standard Minimum Rules, and therefore its revocation removes Canada even

71 -66- further from ratification of its international obligations. (b) ISSUES' In addressing the issues, the Working Group feels that the employment practices at the Prison for Women can best be considered in the context of several factors, including: the perceptions of female offenders and their criminality, current and past; the history of the Prison; perceived and actual differences between male and female offenders and prisons; the needs of female offenders; the use of exchange of service agreements for female offenders and CSC's overall affirmative action program. Each of these are addressed in turn below. (i) Perceptions of Female Offenders and Their Criminality Like male offenders, various explanations of crime have had a great deal to do with how these offenders are treated by society, and one aspect of that treatment which has received little attention is the employment practices at jails or prisons. Most important for this discussion is that, whatever the explanation of women's crime, the role of the state and law has been to reinforce women's position in society. Over the years,' women's crime was, and is, often attributed to their sexuality or their psychology. The earliest criminologists suggested that women's moral development was child-like, that they are naturally cruel and dishonest, but their responsibilities as mothers and wives will usually overcome these tendencies, which means that women who deny their responsibilities, such as prostitutes, are particularly evil. At times, women's crime has been explained by "hormones", and criminologists attributed crime to the physiological effects of premenstrual syndrome or pregnancy. It should be noted, however, that traditional "women's crimes" such as abortion and prostitution were not always crimes. Abortion in early pregnancy, for example, only became a criminal offence in England in 1803, so that the definition of acceptable female behaviour changes over time. Male crime was, and is, a reference point, defining what is "real" crime. Interesting explanations for the apparently lower rate of crime among women than among men include the inference that women are devious, and in some way manage to mask their crime, with the assistance of the police and courts. More recently, the perception continues to persist that the women's liberation movement has resulted or will result in an increase of violent crime among women. The implication is that violence is a "male" trait and submission and non-violence is a "female" trait, and that the so-called masculinization of women through liberation will make them act in similar ways to men. Thus, if male crime deviated from the rules of everyday behaviour in society, female crime did this and, more important, deviated

72 -67- I from the behaviour expected of women. This makes their crime doubly deplorable, and also leads to the more important discussion of perceptions of female offenders. Whatever the accepted or real cause of women's crime may be, and many of the "explanations" offered above amount more to attitudes, public and official perceptions of these offenders are the major determinants of the type of accommodation and treatment they receive. There has always been a dual attitude towards female offenders. At one and the same time, they are seen as "poor, unfortunate creatures", deserving of sympathy and charity, and as "lazy, worthless or evil", deserving only of punishment. However, particularly in the nineteenth century, in an era when success meant you were not either of these things, the distinction did not gain much for female offenders. Sexuality also plays a role here -female offenders were and are seen as thoroughly abnormal. For example, a study of media portrayals of women's. prisons reveals a large number of "B" movie "big house" representations, including horrifying predatory sexual and physical violence and degradation, based on movies about male prisons in which the only apparent script change was in gender. This is far from the reality of most women's prisons. The number of women incarcerated at the federal level was, and continues to be, small in comparison to men. Thus, they are perceived as a very small mincirity among criminals,' and at times were characterized as insignificant in terms of numbers and violent or disruptive behaviour in prison. Their low numbers and relative "silence" also made it possible to assume they either did not need much in the way of accommodation or treatment, or that it would be too expensive to provide improvements, again, relative to sthe costs of doing so for male inmates. (ii) History of Prison for Women Between 1835 and 1934, most federal female offenders were housed in various parts of Kingston Penitentiary, and were moved about within the walls of that prison whenever space was needed for some other purpose until a special unit was constructed inside the Penitentiary in Most of this time, the female inmates were overseen by matrons, and their experience was characterized by physical abuse and neglect. The first specific publicly-sponsored study of female offenders was done in 1921, partly in response to allegations of undue sexual familiarity between the male deputy warden and female inmates, although such allegations were not substantiated by the resulting report. The author, however, did contend that the female inmates had uncontrolled sexual urges, and would be thrown into "a violent state of sexual excitement" by the mere sight of men. This sort of image, reinforced by the public/media

73 -68- perceptions described above, likely supported a trend beginning in the late nineteenth century and extending to the present to employ female staff to supervise female offenders. ' During the twenties, the only instance when the decentralization of female offenders to provincial institutions was suggested by the authorities was when the female matrons requested an increase in pay, as a means of convincing the staff to withdraw the request rather than lose their jobs. Once the new Prison for Women was opened in 1934, such decentralization, while it continued to be proposed, was unlikely to happen. Over the years, the Prison for Women has often been the target of allegations of substandard services and programs, culminating in the Canadian Human Rights Commission ruling in It should be noted that this ruling has not ended such allegations. However, the subject of whether male employees should be introduced to the institution has rarely been high on the agenda, or the subject of serious inquiry, until the present. There have been suggestions that in Europe and North America in general, one of the original arguments for separate prisons for women was to protect the inmates from sexual abuse by male guards, however, this issue is not overtly expressed in much of the literature. (iii) Perceived and Actual Differences Between Male and Female Offenders Traditionally, because female offenders were so few and the Prison for Women so poorly resourced, managing and dealing with female offenders was likely not viewed as an important or rewarding job by any except those few who did perform it. There remain today both perceived and real differences between the male institutions and Prison for Women, which have affected the employment patterns in the latter institution. The most clear real difference traditionally was the absence of programs at Prison for Women, in two respects. First, there simply were not many programs. In sheer numbers of program opportunities, it was clear until recently that fewer of them existed at Prison for Women than at male institutions. Second, such programs as did exist were not tailored to the needs of women, or only provided training in traditional low-paying women's service jobs -hairdressing, laundry, sewing, etc. The lack of programming and services has been laid at the door of traditional attitudes to female offenders -that they are "poor unfortunates" and "lazy, worthless and evil" and therefore insignificant- and of reluctance on the part of cost-conscious officials to spend proportionately large sums of money for a few offenders. For staff working at the Prison, the effort required. the needs of female offenders in the absence of a to deal with minimum level of resources was in the past tremendously onerous, if not futile.

74 -69- For the purpose of this study, however, the perceived difference is much more relevant. Since women's crime is not considered "real" compared to men's crime, there is strong reason to believe that guarding female offenders was not viewed as a real job either. Given the perceptions of abnormality described above, male staff and managers at the Kingston Penitentiary indicated to the 1921 inquiry that they were reluctant to have anything to do with these inmates and it can be expected that this attitude survived for some time. More recently, the job of correctional officer at Prison for Women may be viewed by those employed at male institutions as much easier or more rewarding than that at male prisons, where in the past the job at Prison for Women may have been viewed as not really a serious or worthwhile job. The level of inmate violence is traditionally much lower at Prison for Women, and assaults on staff rarely occur. There is a sense among inmates there, if not among staff as well, that physical danger is not often a concern. If a correctional officer in a male prison often had to rely on a common understanding of how tough and dangerous the job could be to engender a sense of pride in work, there could be little attraction in working at Prison for Women. As well, since promotional opportunities abounded in male institutions, and, before the employment there of female officers, were reserved exclusively to men, there was no need to seek employment at Prison for Women for career improvement. The traditional source of pride could be undermined by the fact that female officers now work in male institutions, indicating perhaps that physical strength and toughness are not the only requirements to work with male offenders; while it is true that male and female officers are now both eligible for promotions in male institutions. Having stated all this, however, attention must be paid to the views of the existing correctional staff at Prison for Women, who in the main wish to see more male officers employed at the institution. Despite the discussion above about lower levels of violence at Prison for Women, it should be noted that this is only in comparison to male prisons in the federal system, which is not necessarily an appropriate comparison. Over the last months, the Prison experienced a cycle of growing disruption, characterized mainly by inmate self-mutilation but also by physical attacks and suicides. This has largely settled down during the course of 1989, however, the experience affected both inmates and staff, the latter group perhaps doubting their ability to deal effectively with violence on a larger scale. With little hard information to rely on, it is inappropriate to speculate further, but the views of staff at the Prison should be sought and considered. Regarding search policy, there is the perception that Prison for Women is very different and that female inmates are rarely searched. However, the only appreciable differences are that

75 -70- inmates leaving work areas, except the kitchen and dining area, are not subject to frisk or scanner searches; and that absolutely no food is allowed.out of the dining or kitchen areas. Inmates have provisions for snacks in the units. Thus, while less routine frisk searching is provided for in regular institutional practices, this is mirrored in practices in most male institutions during inmate movement. The emphasis in searching at Prison for Women is on those who leave the institution or enter visits. Whatever the outside perception may be of the drug problem at Prison for Women, it is serious. Inmates use marijuana or hashish, cocaine and PCP's. Trafficking relies largely on the use of jewellery as a medium of exchange, to the point where the institution is reviewing its policy on allowed amounts and value of jewellery. A further difference between the operation of Prison for Women and the male institutions was that Correctional Supervisors, or in the past, Keepers, traditionally dealt more directly with inmates than is done in male institutions. This included going into the units to assist in emergencies, or to deal with less pressing problems, and in some cases assisting in conducting searches of inmates. Thus, although the job descriptions were the same in all institutions, the practice was different. However, this situation is changing, as management at the Prison feels that the correctional officers should exercise more responsibility for dealing with day-to-day problems. (iv) Needs of Female Offenders In the past, CSC's main arguments against the employment of male officers at Prison for Women were based on external policies (United Nations Standard Minimum Rules) or on legislation (PSR 41(3)). As suggested above, these arguments may never have been seriously challenged until the early 1980's, after the employment of women officers in male institutions and the subsequent enactment of the Charter of Rights, so that when the Service became subject to Public Service Commission anti-discrimination provisions in 1969 it was not too difficult to convince the Commission to accept CSC policy. Since the U.N. rules are not legislated in Canada, and since PSR 41(3) was ruled unconstitutional, these provisions no longer serve to support past policy. CSC will have to develop and rely on arguments addressing the needs of the offenders involved. While these needs were always in some evidence, and are in part the source of the U.N. Standard Minimum Rules, they were somewhat in the background, as the PSR was a more convenient and powerful tool. When female officers were being introduced into male institutions, it was argued in some quarters that this would "normalize" the abnormal (i.e. without contact with women)

76 -71- existence of male inmates, and would thus improve the institutional environment and the chances of reintegration. This approach places a great deal of responsibility on female officers to somehow remove the sources of much of the violence and unpleasantness of male institutions, which the Working Group has concluded is largely linked to the trafficking and use of drugs, and not to the absence of "feminine" influence. If homosexual predatory sexual activity was really the concern, this is not susceptible to correction by the mere presence of women officers. If the violent or abusive attitudes and behaviour of some male inmates towards women is the concern, this is more appropriately addressed by specific treatment and counselling. Whether or not this type of argument is true, it has been used to support the employment of male officers in contact positions at Prison for Women, i.e. that introducing men to the artificial environment there (i.e. no contact with men) will also be positive. Even if the norms at male institutions should be used to examine Prison for Women, this argument is not effective. While lesbian activity does exist, it is not a major source of violence, and no more susceptible to cure through the introduction of opposite sex officers than in male institutions; and female offenders experience with abusive males is quite different. The issue that should govern employment practices is what most effectively meets offenders' needs while ensuring fair and equal employment practices. It must be established clearly that the employment of opposite sex correctional officers is both fair in terms of equal employment practices and best meets offenders' needs, without introducing factors that would place undue responsibility on staff members to deal with aspects of the institutional environment that are perhaps spurious, or at least unrelated to who is employed as a correctional officer. For example, homosexual or lesbian activity among male or female inmates is perhaps best addressed by private family visiting or unescorted temporary absences, as it has little to do with what sex the correctional officers are. There is one major difference between female and male offenders, not so much in experience as in the impact of a background of physical and sexual abuse at the hands of men. This is the crucial area to be examined in considering introducing male officers at Prison for Women, and it is fraught with problems. While both men and women can be victims of abuse as children, and while women can be abusers, they are much more likely to be victims of such abuse. This is due to: -their low rank on the power scale, or their powerless as children or spouses;

77 -72- -their fear of the greater physical strength of men; -women's desire for social approval, which discourages resistance; and -years of strict training into submissive and conciliatory behaviour. Most estimates of the proportion of female offenders who have been victims of abuse at the hands of men range from 80-90%. Although these estimates are not based on empirical evidence, it is clear that the large majority of inmates at Prison for Women have been subject to such abuse, either as children or adults, or both. Sexual, physical or verbal abuse has been visited on them not by monstrous strangers, but almost without exception by men they have expected to trust, such as fathers, other male ' relations or spouses. The level and impact of domestic abuse has only recently begun to receive attention in society, and there is still a great deal to be learned about it, particularly as the problem has been hidden for so long. While such victimization is no excuse for. women's criminal behaviour, it must be considered as a major factor in the treatment and accommodation of female offenders.. Even those who support the introduction of male officer's at Prison for Women insist that only "special" men should be employed there -those who are empathetic to female offenders' problems, are not "macho" and are not bothered by being supervised by women. Not ônly is this a tall order, but it would be difficult to define and judge such aspects of "personal suitability". More importantly, to suggest that female offenders should be overseen by "nice" men, men who can show that they are capable of sensitive and caring behaviour, overlooks that fact that most women have been abused by men that they expected, and society expected them, to trust implicitly. It should not be assumed that caring men do not exist, but for this purpose, it is irrelevant. Although the role of correctional officer is changing, it remains one in which inmates must be able to trust the officers, and in which correctional officers are in a position of power over inmates.. Consequently, there is a great deal more symbolic significance attached to the supervision of female inmates by male officers than supervision of male inmates by female officers, in that it does not address the needs of female offenders to become empowered, often for the first time in their lives, to begin a new life through dealing with and then overcoming their backgrounds of abuse by and dependency on men. Many female offenders would continue the past patterns of dependency, and staff at Prison for Women suggest that a few would be devastated by the introduction of male officers. A great deal of work will have to be done, and a great deal of

78 -73- expertise on the issue of domestic physical and sexual abuse will have to be amassed, before it is possible to overcome this problem. Until recently, such abuse was not seriously addressed in society, and was often dismissed as exaggeration or a source of humour. To assume that, because job descriptions in all CSC institutions are exactly the same, male officers or Correctional Supervisors can be employed at Prison for Women with no special provisions or with no in-depth considerations of the needs of female offenders would fail to address the problem of abuse in the prison context as well. Managers and staff at the Prison for Women also express the need for a certain level of privacy for female inmates, to some extent that level of privacy being somewhat higher than or at least different from that needed by male inmates. In the dormitory style north wing, men have never entered the unit unaccompanied or unannounced. Since the Prison accommodates women of all levels of security, this unit is particularly open, with no locks on room doors and common bath facilities. Along with the segregation unit, it is considered inconceivable that male officers would be assigned to these units, particularly as the lone officer on midnight shift. (v) Exchange of Service Agreements The majority of provincial correctional institutions do not deploy male guards in contact posts with female inmates. La Maison Tanguay (Quebec) and Vanier Centre (Ontario), both institutions for female offenders, deploy male guards within female living units with no restriction on posts throughout the institution, although there are restrictions in conducting searches. However, rostering ensures that female guards are available to perform searches. About half of all federal female offenders currently serve their sentences in provincial facilities under exchange of service agreements, including those in Alberta, which operates co-correctional facilities. Thus, more and more federal female offenders are being incarcerated in facilities where mixed guarding is allowed. (vi) CSC's Affirmative Action Program When CSC began its affirmative action program approximately eight years ago, the existence of 90 positions at Prison for Women occupied by women provided a "head start" towards reaching regional and national affirmative action targets. As well, until recent months, only Prison for Women, and to a lesser extent, Atlantic Region, had any women in the CX group above COF-02 or LUF-01, making Prison for Women virtually the sole source of supervisory positions for women in the CX group, despite the fact that women have been employed in male institutions in the Pacific Region for over 10 years, and in all other regions for more than 7 years. Therefore, the exclusive employment of women