T-5674-78
Conrad Gunn (Plaintiff)
v.
Donald Yeomans, in his capacity as Commissioner
of Corrections, and Nicholas Caros, in his capaci
ty as Institutional Head of Matsqui Institution
and in his capacity as Chairman of the Matsqui
Institution Inmate Disciplinary Board (Defend-
ants)
Trial Division, Cattanach J.—Vancouver, May 13;
Ottawa, June 11, 1980.
Penitentiaries — Standing Order by Institutional Head
requiring all inmates to be thoroughly searched for contraband
in leaving and returning to institution — Thorough search
meaning "skin frisk" — Procedure strictly and indiscrimi
nately applied because of knifing incident and because of
uncertainty as to which inmates would carry contraband —
Refusal by plaintiff to submit to order to be skin searched on
ground that it is unlawful — Whether it is lawful for Institu
tional Head to order the indiscriminate search of all inmates
for contraband on leaving and returning to the institution —
Penitentiary Act, R.S.C. 1970, c. P-6, s. 29 - Penitentiary
Service Regulations, C.R.C. 1978, Vol. XIII, c. 1251, s. 41(2)
— Interpretation Act, R.S.C. 1970, c. I-23, s. 26(7).
On November 10, 1978, the plaintiff, an inmate at the
Matsqui Institution, was ordered to submit to a "skin frisk"
before leaving the Institution for a medical examination, but
refused to do so because, in his opinion, the order was unlawful.
The facts show that a Standing Order issued by the defendant
in his capacity as Institutional Head of Matsqui, which pro
vided that all inmates were to be thoroughly searched before
leaving and when returning to the Institution, had not been
universally and strictly enforced and, as a consequence, a
knifing incident occurred. Following this incident, which took
place before the date in question, the Institutional Head at first
verbally directed the rigid and indiscriminate enforcement of
the Standing Order and made clear that a thorough search
meant a skin frisk. He then issued another Standing Order in
which the words "skin frisked" replaced the word "searched".
The question is whether it is lawful for an institutional head to
order the indiscriminate search of all inmates for contraband on
leaving and returning to the institution.
Held, the action is allowed. The order requiring employees in
charge of escorts to ensure that all inmates be thoroughly skin
frisked before leaving and when returning to the institution is
unlawful in that it is in conflict with subsection 41(2) of the
Penitentiary Service Regulations. That Regulation is so worded
that the institutional head must suspect on reasonable grounds
that an inmate is in possession of contraband before he may
order that that person be searched. That suspicion must be
specific and not a suspicion generally held. Subsection 41(2) is
expressed in the singular throughout; no resort can be had to
subsection 26(7) of the Interpretation Act—declaring the sin
gular to include the plural and vice versa—in order to replace
the singular used in the Regulation by the plural. The manifest
interpretation of subsection 41(2) of the Regulations requires
that it shall be read in the singular only to give effect to the
legislative intent. Furthermore, the words of an enactment must
be interpreted in their ordinary grammatical sense unless there
is something in the context, the object of the enactment or the
circumstances with reference to which they are used to show
that the contrary is the case.
Corporation of the City of Victoria v. Bishop of Vancou-
ver Island [ 1921] 2 A.C. (P.C.) 384, referred to. R. v.
Noble [ 1978] 1 S.C.R. 632, applied.
ACTION.
COUNSEL:
John W. Conroy for plaintiff.
John Haig for defendants.
SOLICITORS:
Abbotsford Community Legal Services,
Abbotsford, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: The plaintiff is an inmate at
Matsqui Institution, a federal penitentiary in the
Municipality of Matsqui, in the Province of British
Columbia.
The capacities of the defendants are as
described in the style of cause.
Mr. Caros, in the capacity described and which
he occupied at the times relevant to this action,
was responsible for the direction of the staff of the
Institution, the organization, safety and security of
the Institution and the correctional training of all
inmates.
In his capacity as Institutional Head and in the
furtherance of the responsibilities of that office,
Mr. Caros may, under the authority of the Com
missioner, the first named defendant herein, issue
Standing Orders which are orders of a permanent
nature peculiar to a particular institution and Rou
tine Orders, as they are required to give informa-
tion and direction to all officers under his
jurisdiction.
These matters are specifically provided in the
Penitentiary Service Regulations, C.R.C. 1978,
Vol. XIII, c. 1251, made by the Governor in
Council under the authority granted in section 29
of the Penitentiary Act, R.S.C. 1970, c. P-6.
Mr. Caros did issue Standing Orders.
An extract from the Standing Orders issued by
him directed to the security division was intro
duced as Exhibit D.I.
This extract is entitled "Searching of Inmates"
and consists of nine subsections under section 7.12.
It is provided that:
(1) the searching of inmates is the responsibility of the Assist
ant Director Security who shall see that such search is properly
carried out (which I take to mean efficiently and effectively)
but with due regard to decency and self respect;
(2) inmates may be searched at any time by an Employee (that
is a member of Penitentiary Service) who has reason to suspect
that contraband (which means anything that an inmate is not
permitted to have in his possession) is being carried;
(3) frisking of inmates shall be in the form of a "Line Frisk" or
"Security Frisk" or both depending on the thoroughness
required;
(4) "Line Frisk" is the hand search from cap to shoes of a
clothed inmate;
(5) "Security Frisk" consists of undressing an inmate in priva
cy, a thorough examination of body and body cavity and a
detailed examination of all clothing and accessories;
(6) the "thorough examination of body and body cavities" is
undertaken on very strong suspicion, or on the direction of
senior officer and shall be conducted by the institutional physi
cian or hospital officers;
(7) frequent but irregular searches of all inmates and areas of
the institution are to be made to detect contraband, and
(8) all inmates are to be skin frisked on admission to the
institution, termination of a patio visit and on returning from
temporary absence.
Skin frisking is not defined in the Orders but
was described as the inmate completely undress
ing, a detailed examination of all clothing and a
visual examination of the exposed body. The
searcher is not to touch the inmate. However the
inmate is required to "bend over" and spread his
buttocks in order that an employee "may complete
a proper skin frisk". Clearly this bending over
process is part and parcel of a "skin frisk".
Also produced as Exhibit D.2 was an extract
from the Standing Orders respecting the duties of
outside escorts dated March, 1977.
The employee in charge of escorts shall ensure
that inmates are thoroughly searched in the
Admission and Discharge area before leaving and
when returning to the institution. That is a respon
sibility of the escorting employee as well. Restraint
equipment is used.
These same instructions to employees on escort
duty are repeated in Exhibit D.3, a Standing
Order dated June 1, 1978.
The words used in the foregoing extracts from
the Standing Orders are "thoroughly searched"
and as indicated, a thorough search has been
interpreted as a skin frisk and that was the type of
thorough search to be conducted. It was also estab
lished that a "skin frisk" is a recognized form of
search adopted by institutions and has been for
some time an accepted procedure.
However in Exhibit D.4 which is an extract
from the Standing Order dated December, 1978
the language has been amended to read that all
inmates "are thoroughly skin frisked ... before
leaving and when returning to the institution."
The words "skin frisked" have been inserted.
This Standing Order is subsequent to the event
which set off the chain of circumstances which
give rise to this action. That event took place on
November 10, 1978.
Shortly before November 10, 1978 an inmate
named Lakey was being escorted to a hospital for
treatment. He had secreted on his person a knife.
He attacked and seriously wounded his two escort
ing guards. He escaped to Vancouver Island and
there committed a murder before his recapture.
This incident was the cause of great concern in
the community. The mayor of the municipality in
which the institution was situate demanded greater
security and safety for the citizens. Hospital
authorities were reluctant to treat inmates without
assurance of the control of inmates. Naturally Mr.
Caros was concerned. He was concerned for the
safety of the staff under his jurisdiction, the out
side hospital authorities and their staff and the
outside population.
His investigation of security measures disclosed
that the search procedures outlined in the Stand
ing Orders dated March, 1977 and June 1, 1978
(Exhibits D.2 and D.3) had not been universally
and strictly enforced. Every inmate leaving the
institution had not been thoroughly searched upon
leaving and when returning.
The first remedial step taken by Mr. Caros was
to verbally direct that this Standing Order respect
ing inmates leaving the institution under escort
should be rigidly and indiscriminately enforced
and by thorough search he meant a skin frisk.
Each and every inmate on leaving and upon
returning was to be skin frisked without exception.
Those verbal instructions were given Mr. Mick-
aloski, the Assistant Director of Security.
Mr. Caros so reinforced the Standing Order. It
was to be strictly and consistently complied with in
every instance. The issuance of the Standing Order
dated December 1978 (Exhibit D.4) in which the
words "skin frisked" replaced the word "searched"
formerly used was a further step in the reinforce
ment and to leave no doubt what was contemplat
ed by a thorough search.
Mr. Caros was motivated to act as he did
because, in his opinion, any flow of contraband in
or out of the institution and its presence within the
institution jeopardized the safe custody of inmates,
the security and safety of the staff and the general
public, all of which were his responsibility to
ensure.
That opinion is self-evident and cannot be
disputed.
Furthermore every inmate temporarily leaving
the institution was suspect to him. That was so
because he could not determine with any degree of
accuracy which inmates would and which inmates
would not carry contraband. It was also his view
that if exceptions were made those excepted might
well carry contraband voluntarily or become the
target of pressure to do so by other inmates.
This he pleads in the defence to the statement of
claim as a whole and he testified to the above
effect.
The plaintiff had a history of a kidney ailment
prior to his imprisonment. That ailment recurred
in prison and was surgically relieved by the remov
al of a cyst at the Vancouver General Hospital but
he was then advised of the almost certain likeli
hood of more cysts developing. An X-ray examina
tion was suggested in two years' time.
In the fall of 1978 the plaintiff suffered a recur
rence of associated pain and was referred by the
institutional physician to a doctor in Abbotsford
who undertook to do an X-ray examination on
November 10, 1978.
On that day the plaintiff was to be escorted
outside for that purpose and upon reaching the
Receiving and Discharge area at about 9:45 a.m.
he was ordered by Penitentiary Officer Scott to
remove his clothing. This the plaintiff did.
He was then ordered to bend over to enable the
officer to see between the buttocks to determine if
anything was there concealed. This the plaintiff
refused to do. He refused because to do so was
humiliating and degrading but more so because, in
his opinion which he expressed to the penitentiary
officers present, the order was unlawful.
The order was repeated with the admonition
that if the plaintiff persisted in his refusal to bend
over he would be charged with disobeying a lawful
order and would be sent to segregation pending the
disposition of the charge.
The plaintiff continued in his refusal. He was
thereupon taken to segregation and subsequently
charged "... that (he) did refuse a direct order,
lawfully given, to be skin-frisked ...."
On November 16, 1978 he appeared before an
Inmate Disciplinary Board, the composition of
which and the conduct thereof is provided for in
Commissioner's Directive No. 213. The Commis
sioner is authorized to make directives by subsec
tion 29(3) of the Penitentiary Act.
The Board was comprised of Mr. Caros, as
Chairman, and two staff members, Mr. Mickalos-
ki, the Assistant Director of Security and Mr.
Arens, an officer in charge of a living unit. The
decisions are exclusively those of Mr. Caros, as
Chairman of the Board, the functions of the other
two members being advisory only.
By virtue of section 12 of the Commissioner's
Directive particularly paragraph c(4) thereof the
accused shall be given the opportunity to make his
full answer and defence, including amongst other
things the cross-examination of witnesses through
the presiding officer and the right to call witnesses
on his own behalf, unless, in the belief of the
presiding officer it is frivolous and vexatious to do
so and shall so advise the accused in writing.
At the hearing the plaintiff pleaded not guilty to
the charge. In so doing he admitted his refusal to
obey the order to bend over on the contention that
the order was not lawful.
He was afforded the opportunity of cross-exam
ining the sole witness called as to the facts, Peni
tentiary Officer Scott, through the presiding offi
cer as is the authorized practice.
He also requested that Mr. Mickaloski remove
himself from the Board in order that the plaintiff
might call him as a witness. These requests were
denied by Mr. Caros as presiding officer. The
plaintiff's purpose in calling Mr. Mickaloski as a
witness was to establish that the plaintiff had
indicated to him that his refusal to bend over in
compliance with the order to do so was based upon
his conviction that the order was unlawful and for
that reason need not be obeyed and that the
conduct of the plaintiff was exemplary for the nine
years he had served in his life sentence with but
one exception, a fight with another inmate.
As I appreciate the refusal of these requests it
was because it was accepted by the Board that the
plaintiff's conduct had been irreproachable and
that his refusal to obey the order was because he
considered the order to be unlawful. That being so
there was no need to call Mr. Mickaloski to estab-
lish those facts which were accepted. Thus the
refusal, on those grounds, was well taken.
It was also contended that both Mr. Caros and
Mr. Mickaloski were disqualified from sitting as
members of the Disciplinary Board convened to try
this alleged offence because Mr. Caros was being
called upon to decide the lawfulness of an order
which he had made and which Mr. Mickaloski had
ordered to be enforced.
This contention is based on the probability that
the minds of these two members have been made
up on the issue of the lawfulness of the order, that
they were respectively the author and enforcer of
the order and to sit on the Board where the
lawfulness of that order was in issue is tantamount
to sitting on appeal from a prior decision and that
each had a direct interest in issue. As a result of
those circumstances the submission was that the
plaintiff entertained a reasonable apprehension of
bias.
It would appear that Mr. Caros, while recogniz
ing the plaintiffs contention that the order made
by him was unlawful, did not accept that conten
tion. It was his view that he had authority to make
the order and the only logical assumption I can
make is that he rejected the plaintiff's contention
in this respect.
There is merit to the contentions respecting bias
in its legal sense advanced on behalf of the
plaintiff.
However it is possible that, either by express
words or by necessary implication, authority to
decide disputes may be committed to a person
interested in the result in which case the common
law disqualifications recited above may be treated
as removed. That is the application of the rule of
necessity.
Under subsection 29(3) of the Penitentiary Act
the Commissioner may make directives for the
discipline of inmates. This he has done by Direc
tive No. 213. Inmate offences are categorized and
disobedience of an order is in the category of a
serious or flagrant offence warranting serious pun
ishment including dissociation for a period not
exceeding thirty days alone or in combination with
other prescribed punishment.
As previously pointed out Directive No. 213
provides for the composition of the Disciplinary
Board.
It is inherent in the Directive that the more
serious the offence the more senior the presiding
officer shall be.
Mr. Caros obviously considered this matter to
be so important as to require his personal attention
and decision and so presided at the Board himself.
In my view it would appear that the circum
stances dictate that the Commissioner's Directive
contemplates a built-in exemption from disqualifi
cation of the institutional head to so sit even
though he may have the interest of enforcing his
own order.
The plaintiff was convicted of the offence with
which he was charged and sentenced to thirty
days' dissociation but the sentence was suspended
for ninety days.
That meant that should the plaintiff repeat his
refusal to comply with an order to submit to skin
frisking within the ninety-day period the punish
ment of thirty days' dissociation might well be
imposed as well as that imposed on conviction for
any subsequent charges.
There was considerable evidence adduced and
argument advanced as to the efficacy of skin frisk
ing and that other suggested means of search
might be more efficient, practical and less
demeaning.
The plaintiff in his testimony expressed the
belief that skin frisking was deliberately imposed
to degrade and humiliate inmates and not for any
other purpose. If that were so the Standing Order
directed to be rigidly enforced by Mr. Caros would
be unlawful as effecting an ulterior purpose.
It is not my function to substitute my opinion
for that of the institutional head as to the most
effective methods to ensure the safety and security
of the institution for which he was responsible.
Skin frisking is an accepted procedure throughout
the Penitentiary Service and I must, therefore,
accept the premise that it is the most effective
method of search for contraband not required to
be conducted by medical personnel and accepting
that premise, as I have, it follows that it was not
invoked for any ulterior purpose.
However such conclusion does not mean that the
order might not be unlawful for other reasons.
There is no question that the Commissioner is
responsible "for the organization, training, disci
pline, efficiency, administration and good govern
ment of the Service, and for the custody, treat
ment, training, employment and discipline of
inmates and the good government of penitentiar
ies". Subsection 29(3) so provides and to that end
the Commissioner may issue directives but subject
to subsection (1).
Subsection 29(1) authorizes the Governor in
Council to make regulations to the same end. This
has been done by the enactment of the Penitentia
ry Service Regulations.
Therefore the Commissioner cannot make any
directive which conflicts with a provision of the
Penitentiary Service Regulations.
As set out at the outset the institutional head is
responsible for the direction of his staff, the organ
ization, safety and security of his institution and
the correctional training of all inmates confined
therein.
To that end he may issue Standing Orders pecu
liar to his institution and Routine Orders to give
information and direction to all officers under his
command.
Both Standing Orders and Routine Orders are
issued under the authority of the Commissioner. It
follows that since the Commissioner cannot issue
directives in conflict with the Penitentiary Service
Regulations he cannot authorize Standing Orders
that will do so.
I accept the premise put forward in paragraph
17 of the defence with respect to the fact, of which
Mr. Caros testified, that the flow of contraband in
and out of Matsqui and its presence within Mat-
squi jeopardizes the safe custody of the inmates,
the security and safety of staff and the general
public which are his responsibility to ensure.
As stated before, that premise is so self-evident
as not to permit of dispute and it inexorably
follows that the flow and possession of contraband
must be suppressed.
The logical place to suppress the flow in or out
of the institution is when and where the inmates
leave and return to the institution on authorized
absences.
The logical way to ensure this is by a thorough
search of the inmate at that time and place. For
the reason I have mentioned above, if the institu
tional head directs that the most efficient method
of search is a skin frisk, that is within his compe
tence to impose.
However Mr. Caros testified that he could not
be certain which inmates would carry contraband.
Therefore he suspected all inmates. Therefore he
ordered all inmates to be searched and for the
additional reason that no exceptions being made
would be a deterrent to attempts to carry
contraband.
It seems to me that the rigid enforcement of
thorough searching of all inmates leaving and
returning to the institution inaugurated by Mr.
Caros without exception would be the logical way
to suppress the carrying of contraband upon the
person of an inmate.
The narrow issue upon which this action falls to
be determined is whether it is lawful for the insti
tutional head to order the indiscriminate search of
all inmates for contraband on leaving and return
ing to the institution.
Within the broad responsibility upon the institu
tional head to ensure the safety, security and good
administration of the institution I am of the opin
ion that such measures would be to achieve that
purpose and so within his competence but because
it may well be within his competence to do so it is
not within his authority to do so if the order made
by him conflicts with an order on the same
subject-matter in the Penitentiary Service Regula
tions.
Subsection 41(2) of the Penitentiary Service
Regulations (formerly 2.31(2) and so designated
in the pleadings herein) reads:
41....
(2) Where the institutional head suspects, on reasonable
grounds, that an officer, employee, inmate or visitor to the
institution is in possession of contraband he may order that
person to be searched ....
This Regulation prescribes the circumstances
under which the institutional head may order the
search of an inmate for contraband.
He must suspect, on reasonable grounds, that
the inmate to be searched is in possession of
contraband as a condition precedent to ordering
the search.
While the institutional head might be justified
in holding the suspicion that each and every
inmate who leaves the institution and returns
thereto on temporary, but authorized, absences is
likely to be carrying contraband I do not think that
such suspicion is held on reasonable grounds with
respect to a particular inmate. The suspicion must
be specific and not a suspicion generally held.
Subsection 41(2) is expressed in the singular
throughout.
My brother Walsh in his reasons for granting an
interlocutory injunction dated January 24, 1979, *
restraining the defendants herein from ordering
any further searches upon the plaintiff's person
except those in accordance with Regulation
2.31(2) of the Penitentiary Service Regulations
(now subsection 41(2) of those Regulations) had
this to say:
The regulation 2.31(2) (supra) is however so worded that the
institutional head must suspect "on reasonable grounds" that
the "inmate" "is in possession" of contraband before he may
order "that person" to be searched. [The emphases were insert
ed by Walsh J.]
It is trite to say that there may be some suspicion, even
perhaps "reasonable" suspicion, that inmates generally may be
in possession of contraband at any given time—experience in
prisons so indicates. The regulation, as drawn, would appear to
require specific suspicion of a given individual "on reasonable
grounds" before he may be searched. The word "inmate" is
used in the singular, the regulation uses the word "is" in
possession not "may be" in possession, and the order is that
"that" person be searched. It would in my view require stronger
wording to justify a general body search of the type indicated of
all inmates on leaving or entering the institution, however
desirable, useful, or even necessary such a search may be. If
greater powers of search are necessary, as they may well be,
then the regulation should be amended to provide for this.
* [Unreported, Court No. T-5674-78.]
Subsection 26(7) of the Interpretation Act,
R.S.C. 1970, c. I-23, reads:
26....
(7) Words in the singular include the plural, and words in
the plural include the singular.
Lord Selborne L.C. has said in Conelly v. Steer
((1881) 7 Q.B.D. 520, at page 522):
But, in construing a statute, plural is to read as singular
whenever the nature of the subject-matter requires it;
The converse is equally so, the singular is to be
read as plural "whenever the nature of the subject-
matter requires it".
When Lord Selborne spoke as he did in 1881 the
same words as those in subsection 26(7) (with the
addition of the word "shall" before the word
"include") were contained in "An Act for shorten
ing the Language used in Acts of Parliament", 13
Vict., c. 21, and were reproduced in the exact
words, when that Act was repealed but consolidat
ed, in section 1(1) (b.) of the Interpretation Act,
1889, 52 & 53 Vict., c. 63.
I make mention of this to indicate that the
words of an enactment must be interpreted in their
ordinary grammatical sense unless there is some
thing in the context, the object of the enactment or
the circumstances with reference to which they are
used to show that the contrary is the case (see
Lord Atkinson in Corporation of the City of Vic-
toria v. Bishop of Vancouver Island [1921] 2 A.C.
(P.C.) 384, at page 387).
In The Queen v. Noble ([1978] 1 S.C.R. 632)
the question arose as to whether the use of the
word "samples" in section 237(1)(f) of the Crimi
nal Code could be construed in the singular and
that but one breath "sample" would be sufficient.
Ritchie J. speaking for the Court adopted with
approval the language of Hughes C.J.N.B. when
he said that the word "samples" cannot be extend
ed by the provisions of the Interpretation Act
declaring the singular to include the plural and
vice versa to a case where only one sample of an
accused's breath had been taken. Such a provision
should only be resorted to where it is necessary to
give effect to the apparent legislative intent of the
Act being considered.
This is the converse of the Regulation here
under review. In The Queen v. Noble the singular
was sought to be substituted for the plural used in
the statute by the application of subsection 26(7)
of the Interpretation Act. In subsection 41(2) of
the Penitentiary Service Regulations the plural is
sought to be substituted for the singular used in
the Regulation.
Here, in my opinion, the manifest interpretation
of subsection 41(2) of the Regulations requires
that it shall be read in the singular only to give
effect to the legislative intent.
I therefore conclude that the order in Exhibit
D.2 and Exhibit D.4 being Standing Orders 7.05
dated March 1977 and December 1978 requiring
employees in charge of escorts to ensure that all
inmates be thoroughly skin frisked before leaving
and when returning to the institution is unlawful in
that it is in conflict with subsection 41(2) of the
Penitentiary Service Regulations.
Accordingly, as sought in the plaintiff's claim
for relief:
(1) it is declared that any Commissioner's direc
tives or other subordinate orders inconsistent
with the provisions of subsection 41(2) of the
Penitentiary Service Regulations are unlawful
to the extent of that inconsistency;
(2) it is declared that the order made by Peni
tentiary Officer Scott and directed to the plain
tiff at or about 9:45 a.m. on March 10, 1978 on
orders from the defendant, Nicholas Caros, in
his capacity as Institutional Head of Matsqui
Institution was not a lawful order;
(3) it is declared that the conviction of the
plaintiff on the charge that he failed to obey a
lawful order by the Disciplinary Board on
November 16, 1978 was wrong in law and it is
directed that such conviction be set aside and
any record thereof be expunged from the plain
tiff's penitentiary record and file; and
(4) the defendants, their servants, agents and
employees are enjoined from conducting by
order or otherwise any searches of the plaintiffs
person except in accordance with subsection
41(2) of the Penitentiary Service Regulations.
I was informed that the plaintiffs costs of con
ducting this action came from public funds. Since
any order for the plaintiffs costs would also come
from public funds there shall be no order for costs
to the plaintiff.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.