T-2339-85
Garnet Clarence Weatherall (Plaintiff)
v.
Attorney General of Canada, Solicitor General of
Canada and Commissioner of Corrections
(Defendants)
T-2613-85
Philip Conway (Plaintiff)
v.
The Queen (Defendant)
T-2614-85
Richard Spearman (Applicant)
v.
Disciplinary Tribunal of Collins Bay Penitentiary,
namely Peter Radley and Attorney General of
Canada (Respondents)
INDEXED AS: WEATHERALL V. CANADA (ATTORNEY GENERAL)
Trial Division, Strayer J.—Kingston, Ontario,
December 8, 9, 10, 11 and 12, 1986; Ottawa,
March 27, 1987.
Penitentiaries — Female guards in men's penitentiaries
Legality of female guards' presence at strip searches and
conducting surveillance of living quarters and frisk searches —
Conflict between inmates' expectation of privacy and equal
opportunities for women's employment in prison system.
Constitutional law — Charter of Rights — Life, liberty and
security — Penitentiaries — Legality of female guards' pres
ence at strip searches of male inmates, participation in surveil
lance of living quarters and conducting frisk searches —
Charter s. 7 not applicable as impossible to conclude meant to
deal with searches not dealt with by s. 8.
Constitutional law — Charter of Rights — Criminal pro
cess — Search or seizure — Illegality of Regulations author
izing strip searches of convicts as not establishing sufficiently
objective pre-conditions in general, and with respect to female
guards' presence in particular — Frisk searches of male
inmates by female guards not infringing Charter s. 8 as
invasion of privacy trivial and offset by public interest in
security and in equal access of women to employment in
penitentiaries — Prohibition of unannounced or unscheduled
visual examination of male inmates' living quarters by female
guards, except in emergencies.
Constitutional law — Charter of Rights — Criminal pro
cess — Cruel and unusual treatment or punishment — Strip
searching of male prisoners in presence of female guards in
violation of s. 12, except in emergencies.
Constitutional law — Charter of Rights — Equality rights
— Regulations authorizing strip searches of male inmates in
presence of female guards and frisk searches and cell surveil
lance by female guards but prohibiting searches of female
inmates by male guards — Such inequality protected by
Charter s. 15(2) only to extent infringements on male privacy
reasonably necessary to operation of affirmative action pro
gramme — Use of female guards in non-emergency skin
searches or unscheduled, unannounced surveillance of cells not
necessary to employment — Charter s. 28 reinforcing finding
of invalidity but having no significant effect in present case as
regulations and practices invalid by virtue of Charter ss. 8 and
15.
Constitutional law — Charter of Rights — Limitation
clause — Affirmation of equal right to employment in Human
Rights Act and Public Service Employment Act not constitut
ing "limits prescribed by law" within Charter s. 1 — Such
right not exercisable without regard for rights of others —
Regulations and Directives provisions concerning female
guards in male institutions unsustainable under ss. 8, 12 and
15 equally unsustainable under s. I — Commissioner's Direc
tives not "law" as creating no legal rights or obligations.
Bill of Rights — Use of female guards in male penitentiar
ies for frisk searching when male guards not so used in female
institution not denial of equality before law — Situation
result of affirmative action programme in pursuance of valid
federal objective — Frisk searching trivial intrusion on
privacy.
The plaintiff Weatherall, an inmate of the Joyceville Institu
tion, was subjected to a strip search in the presence of a female
guard. There was no emergency. The plaintiff seeks a declara
tion, based on sections 7, 8, 12 and 15 of the Charter, that
paragraph 41(2)(c) of the Regulations and paragraph 14 of the
Commissioner's Directives, which authorize such a search, are
invalid. The plaintiff Conway, an inmate at the Collins Bay
Penitentiary, complains of the participation of female guards in
frisk searching and cell surveillance and seeks a declaration
prohibiting this. The applicant Spearman, an inmate at the
Collins Bay Penitentiary, was convicted of refusing to submit to
a frisk search by a female guard. The applicant seeks a writ of
certiorari to quash the conviction, invoking his right to privacy
and his right not to be discriminated against by reason of sex.
These cases involve conflicts between the rights or aspirations
of prison inmates to enjoy, as much as possible, standards of
privacy and public decency equivalent to those outside prisons,
and those of women to equal opportunities for employment in
the federal prison system.
Held, the applications for declarations are allowed in part.
The application for certiorari is dismissed.
Section 7 of the Charter is not applicable to these cases. It
does not have a broader "substantive" content involving a right
of privacy not covered by sections 8 to 14 of the Charter. One
cannot say that section 7 states a general principle of which
sections 8 to 14 are but examples.
Section 8 requires that certain conditions be met for a strip
search to be conducted. Strip searches are so intrusive of
human dignity and privacy that there must be some criteria
laid down for their use. Circumstances where routine individual
searches, non-routine general searches, and non-routine
individual searches are justified must be defined. Reasonable
and probable cause should be required to be demonstrated to a
superior officer before or after all non-routine searches. The
Regulations in effect at the time of the search of Weatherall
did not meet these requirements. To permit a search where the
staff member "considers such action reasonable", as does para
graph 41(2)(c) of the Regulations, is to give too much latitude.
And while the Commissioner's Directives purport to establish
certain criteria for strip searches, they do not have legal force
and therefore do not constitute legal requirements which would
make the search power provided in the Regulations a reason
able one within the meaning of section 8 of the Charter. And
the Court is not prepared to read the necessary criteria into
paragraph 41(2)(c).
There remains to determine, under section 8, the reasonabili-
ty of the manner in which a search, otherwise properly author
ized, is carried out, i.e. cross-gender searches. In most circum
stances, the involuntary exposure of the body to fairly close and
deliberate viewing by a member of the opposite sex offends
normal standards of public decency and is not justified, even in
the prison context. The Regulations do not adequately limit the
power of strip searching in this respect. "Cross-gender" viewing
of strip searching should be limited to emergencies.
The routine frisk searches in question herein do not infringe
rights protected by section 8 of the Charter. They constitute
only trivial invasions of privacy which are more than offset by
the public interest in security and in the equal access of women
to employment in federal penitentiaries. If female guards were
unable to perform such duties, their usefulness and career
opportunities would be drastically limited.
Other than in emergencies, female officers should not be in a
position to make unannounced or unscheduled visual examina
tions of occupied cells of male inmates.
It being accepted that strip searches of inmates is "treat-
ment" within the meaning of section 12 of the Charter, strip
searches in the presence of female guards, absent an emergen
cy, would normally violate the right not to be subjected to any
cruel and unusual treatment or punishment. Under this heading
also, paragraph 41(2)(c) of the Regulations is overly broad in
the powers it confers on staff members with respect to strip
searches.
Conway and Weatherall invoke the equality rights guaran
teed by section 15 of the Charter with respect to strip searches,
frisk searches and cell surveillance. A complaint under subsec
tion 15(1) cannot be sustained with respect to frisk searches
because the interference with privacy is trivial. The use of
female guards in non-emergency strip searches, or in
unscheduled, unannounced surveillance of cells, is not necessary
to their employment in men's penitentiaries. To this extent, this
inequality, flowing from the affirmative action programme and
the absence of male guards in women's penitentiaries perform
ing similar functions, is not protected by subsection 15(2). On
the other hand, emergency skin searches and scheduled and
announced cell surveillance are protected by Charter section
15(2) as reasonably necessary to the affirmative action
programme.
Section 28 of the Charter has no significant effect in the
present case. But to the extent that section 8 is infringed by
"cross-gender" strip searching or cell surveillance with respect
to male, but not female, prisoners, this violates section 28. And
while section 28 may afford further protection, it really adds
nothing because such regulations and practices are already
invalid by virtue of sections 8 and 15.
The affirmation of equal right to employment in the Canadi-
an Human Rights Act and the Public Service Employment Act
does not constitute "limits prescribed by law" on the rights of
male inmates within the meaning of section 1 of the Charter.
Equality rights are not exercisable without regard for the rights
of others. To the extent that the attacked provisions of the
Regulations and the Directives have been found unsustainable
under sections 8, 12 and 15 of the Charter, they are equally
unsustainable under section 1 as no further justification for
them has been demonstrated. And the Commissioner's Direc
tives do not set "limits prescribed by law": they are not "law"
within the meaning of section 1 because they create no legal
rights or obligations.
The use of female guards in male penitentiaries for frisk
searching when male guards are not used similarly in female
institutions is not a denial of equality before the law within the
meaning of paragraph 1(b) of the Bill of Rights. The situation
is the result of an affirmative action programme in pursuance
of a valid federal objective. In any event, frisk searching is only
a trivial intrusion on privacy which the Bill of Rights is not
intended to proscribe.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Bill of Rights, R.S.C. 1970, Appendix III, s.
1(b).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 1, 7, 8, 12, 15, 23,
24(1),(2), 28.
Canadian Human Rights Act, S.C. 1976-77, c. 33.
Charter of the French Language, R.S.Q. 1977, c. C-11, s.
73.
Combines Investigation Act, R.S.C. 1970, c. C-23, s. 10.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1), s. 91.
Federal Court Rules, C.R.C., c. 663, R. 341A (as added
by SOR/79-57).
Penitentiary Service Regulations, C.R.C., c. 1251, s.
41(2)(c) (as am. by SOR/80-462), (3) (as added,
idem).
Public Service Employment Act, R.S.C. 1970, c. P-32.
U.S. Constitution, Amend. IV.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Institutional Head of Beaver Creek Correctional
Camp, Ex p. MacCaud, [1969] 1 O.R. 373 (C.A.);
Solosky v. The Queen, [1980] 1 S.C.R. 821; Re B.C.
Motor Vehicle Act, [1985] 2 S.C.R. 486; Law Society of
Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; R. v.
Therens, [1985] 1 S.C.R. 613, per Le Dain J. dissenting;
Miller et al. v. The Queen, [1977] 2 S.C.R. 680, per
Laskin C.J. dissenting; Gittens (In re), [1983] 1 F.C. 152
(T.D.); Dubois v. The Queen, [1985] 2 S.C.R. 350; The
Queen v. Beauregard, [1986] 2 S.C.R. 56; R. v. Collins,
[1987] 1 S.C.R. 265; Attorney General of Quebec v.
Quebec Association of Protestant School Boards et al.,
[1984] 2 S.C.R. 66; Regina v. Noble (1984), 48 O.R.
(2d) 643 (C.A.); Hunter et al. v. Southam Inc., [1984] 2
S.C.R. 145; Grummett v. Rushen, 779 F.2d 491 (9th Cir.
1985); R. v. Edwards Books and Art Ltd., [1986] 2
S.C.R. 713; Headley v. Canada (Public Service Commis
sion Appeal Board), [1987] 2 F.C. 235 (C.A.); Re
Mitchell and the Queen (1984), 150 D.L.R. (3d) 449
(Ont. H.C.); Martineau et al. v. Matsqui Institution
Inmate Disciplinary Board, [1978] 1 S.C.R. 118.
DISTINGUISHED:
R. v. Rao (1984), 40 C.R. (3d) 1 (Ont. C.A.); Stanley et
al. v. Royal Canadian Mounted Police, decision dated
February 9, 1987, Human Rights Tribunal, not yet
reported; Danch v. Nadon, [1978] 2 F.C. 484 (C.A.);
Laroche v. Commissioner of R.C.M.P. (1981), 39 N.R.
407 (F.C.A.).
CONSIDERED:
Re Maltby et al. and The Attorney-General of Sas-
katchewan (1982), 143 D.L.R. (3d) 649 (Sask. Q.B.),
affirmed (1984), 13 C.C.C. (3d) 308 (Sask. C.A.);
Soenen v. Dir. of Edmonton Remand Centre (1983), 35
C.R. (3d) 206; 3 D.L.R. (4th) 658 (Alta. Q.B.); Bell v.
Wolfish, 441 U.S. 520 (1979).
REFERRED TO:
Re Anti-Inflation Act, [1976] 2 S.C.R. 373; R. v. Big M
Drug Mart Ltd. et al., [1985] 1 S.C.R. 295; Re Resolu
tion to amend the Constitution, [1981] 1 S.C.R. 753;
Smith v. Fairman, 678 F.2d 52 (7th Cir. 1982); R. v.
Yellowguill, [1984] 12 W.C.B. 9 (Man. Q.B.); Bagley et
al. v. Watson et al., 579 F. Supp. 1099 (D. Oreg. 1983);
Hudson v. Palmer, 82 L. Ed. (2d) 393 (U.S.S.Ct. 1984);
Lanza v. New York, 370 U.S. 139 (N.Y.C.A. 1962);
Smith, Kline & French Laboratories Ltd. v. Canada
(Attorney General), [1987] 2 F.C. 359 (C.A.); Shewchuk
v. Ricard, [1986] 4 W.W.R. 289 (B.C.C.A.).
AUTHORS CITED
Black's Law Dictionary, 5th ed. St. Paul, Minn.: West
Publishing Co., 1979.
Canada. Chambre des communes. Comité permanent de
la justice et des questions juridiques. Sous-comité sur le
régime d'institutions pénitentiaires au Canada. Rap
port au Parlement. Ottawa: Ministre des Approvi-
sionnements et Services Canada, 1977.
Canada. House of Commons. Standing Committee on
Justice and Legal Affairs. Sub-Committee on the Peni
tentiary System in Canada. Report to Parliament.
Ottawa: Minister of Supply and Services Canada,
1977.
Gibson, Dale. The Law of the Charter: General Princi
ples. Calgary: Carswell, 1986.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed.
Toronto: Carswell, 1985.
McLeod et al. The Canadian Charter of Rights: the
prosecution and defence of criminal and other statu
tory offences, Vol. 2. Toronto: Carswell, 1983.
Romanow et al. Canada ... Notwithstanding Toronto:
Carswell/Methuen, 1984.
COUNSEL:
Ronald R. Price, Q.C. for plaintiff Wea-
therall.
Fergus J. O'Connor for plaintiff Conway and
applicant Spearman.
J. Grant Sinclair, Q.C. and B. J. Saunders for
defendants and respondents.
SOLICITORS:
Faculty of Law, Queen's University, Kings-
ton, Ontario, for plaintiff Weatherall.
O'Connor, Ecclestone and Kaiser, Kingston,
Ontario, for plaintiff Conway and applicant
Spearman.
Deputy Attorney General of Canada for
defendants and respondents.
The following are the reasons for judgment
rendered in English by
STRAYER J.:
FACTS
These three matters were ordered to be tried
consecutively, but by agreement they were all
heard together because the issues overlapped to a
considerable extent. I am therefore issuing reasons
for all of them together. The Weatherall and
Conway cases are for various declarations with
respect to the legality of use of female guards in
federal penitentiaries in doing personal searches of
male inmates or in surveillance of living quarters
of male inmates. The Spearman case involves an
application for certiorari, which also concerns the
legality of female guards doing "frisk searches" of
male prisoners. The application was ordered to be
set down for a trial of the issues therein.
Facts
To understand the background of these cases it
is necessary to note that at one time women were
completely excluded from employment as custodi
ans in federal penal institutions for men. In 1977 a
Parliamentary Committee recommended that they
should have the opportunity for such employment.
The Committee's report (Report to Parliament of
Sub-Committee on the Penitentiary System in
Canada, Standing Committee on Justice and
Legal Affairs, 1977) stated as follows on this
subject at pages 601-602:
Women Employees
316. Some women are already employed by the Penitentiary
Service in institutions for male offenders. Most are in classifi
cation, education, psychology, or clerical positions. However,
they do not have the career opportunities available to male
correctional officers. In the United States, women and men
perform the same correctional duties. That includes custody,
training, shop instructing, and security complete with the frisk
on entry to the prison. (Such frisking is done objectively and
without any self-consciousness. Women do not do skin frisks).
The administration and most male correctional officers have
welcomed the new dimension of women serving inside the
institutions. No justification exists for excluding competent,
stable and mature women from the full spectrum of the Peni
tentiary Service. The principal benefits for the service are a
pool of new talent and a healthier correctional environment.
Recommendation 17
Women should be employed on the same basis as men in the
Penitentiary Service. Selection must be according to the
same criteria used for men to ensure that recruits have the
aptitude, maturity, stability and self-discipline required for
penitentiary work.
After a pilot project such a policy was intro
duced in 1980 in respect of minimum-security and
medium-security institutions. In 1983 the Govern
ment of Canada adopted an affirmative action
programme which had the effect of setting targets
for employment of women in various categories in
Correctional Services, and ensuring their admis
sion to such posts by restricting access of male
candidates or transferees. With respect to the two
categories relevant to these cases, the CX-COF
(Custodial Officers) and CX-LUF (Living Unit
Officers), the target was set at 19% of all such
officers to be women by 1988. According to evi
dence at trial, as of October 31, 1986 12.4% of all
correctional officers in federal institutions were
women. At the two institutions in question here,
Collins Bay (Kingston) and Joyceville, the actual
numbers and percentages of females were as fol
lows: Collins Bay, CX-COF, 21 (14.5%);
CX-LUF, 0 (0%), there being no "Living Units"
at Collins Bay; Joycevillé, CX-COF, 13 (13.1%);
CX-LUF, 17 (26.6%). The evidence indicated
that, with minor exceptions, such female officers
are expected to perform the same duties as male
officers and they are routinely rotated throughout
various assignments on successive shifts of officers.
It may also be noted that in April, 1984 the first
women were employed as custodial staff in max-
imum-security institutions, although that is not in
issue here. Both the institutions involved in the
present cases are medium-security.
It is necessary to note the particular complaints
of the inmates in question. With respect to Wea-
therall, he has been in penitentiary serving his
present sentence since 1974. The events com
plained of occurred on June 13, 1985 while he was
at Joyceville Institution. On that day when he was
leaving the visit area, having just received a visit
there from his wife, he was, together with one
Benjamin Greco, another inmate who had just left
the visit area also, ordered into an adjacent room
for a strip search. The purpose of this was to look
for contraband which might have been received
during the visit. There was some evidence that at
the time prison officers suspected (whether reason
ably or not, I need not decide) that this inmate
might be involved in drug trafficking in the institu
tion. Present in the room along with the two
inmates were three officers, one of whom was a
woman, Josephine Hlywa, the other two being
men. I find on the basis of his evidence that
Weatherall objected to being strip searched in the
presence of Hlywa, that she refused to leave, and
that the other two guards refused to ask her to
leave. (In this connection it is significant that
neither Hlywa nor any other officer present on this
occasion was called as a witness by the defen
dants.) The male guards conducted the search of
the two inmates and their clothing and Hlywa
stood where she could observe as a witness, it
being customary for strip searches of any given
prisoner to be conducted by two officers with one
doing the actual examination of clothing, etc. and
the other serving as a witness. Weatherall testified
that he had been strip searched some 300 times at
Joyceville and this was the only such occasion
when a female officer was present. On June 18th
Weatherall signed an "Inmate Complaint Form"
in respect of this presence of a female guard
during a strip search. He relied on the Commis
sioner's Directive 800-2-07.1 in respect of
searches; and in particular, paragraph 14 thereof
which states as follows:
14. A strip search shall be conducted with due regard for
privacy and by a member of the same sex and normally in
the presence of a witness of the same sex. In urgent
circumstances, a male inmate may be searched by a female
member.
He contended that there was no emergency and
that therefore this search was contrary to the
rules. He received a response from J. S. Brazeau
dated June 28, 1985. The complaint of the inmate
was upheld but the following answer was given:
I agree there was no emergency which is the only time that the
Commissioner's directive states that female may strip search an
inmate.
It is unfortunate that this happened, however, security staff are
now well aware of the policy and this should not happen again
in future.
On July 2, 1985 Weatherall signed an "Inmate
Grievance Presentation" addressed to the warden
of Joyceville which reiterated his complaint and
asked what was going to be done about it. The
response on behalf of the warden was, quoting
"Divisional Instruction 600-6-03.2":
When the subject-matter of a written complaint has been
upheld and corrective acting has been taken, a grievance on the
same subject shall not be accepted as the matter is considered
to have been resolved.
Therefore his grievance was rejected. Weatherall
says that he was very upset by this experience.
According to Ralph Serin, the psychologist at
Joyceville, Weatherall saw him on June 18, 1985
and seemed very angry about the incident.
In this action Weatherall seeks a declaration
that paragraph 41(2)(c) of the Penitentiary Ser
vice Regulations, C.R.C., c. 1251, as amended [by
SOR/80-462], and paragraph 14 of the Commis
sioner's Directives are invalid. Paragraph 41(2)(c)
of the Penitentiary Service Regulations provides
as follows:
41....
(2) ... any member may search
(c) any inmate or inmates, where a member considers such
action reasonable to detect the presence of contraband or to
maintain the good order of an institution.....
Paragraph 14 of the Commissioner's Directives
has been quoted above. The grounds alleged for
invalidity are that these provisions are inconsistent
with the rights guaranteed in sections 7, 8, 12, and
15 of the Canadian Charter of Rights and Free
doms [being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982 c. 11 (U.K.)].
The plaintiff Conway is at present serving a
sentence at Collins Bay Penitentiary where he has
been since 1982. He complains of no specific inci-
dent but rather of two general practices within the
institution involving the performance of certain
duties by female guards. These duties, which
equally devolve upon female guards because of
their regular rotation throughout all custodial
posts for which their rank qualifies them, are
"frisk searching" (that is searching a fully clothed
inmate by the guard running his or her hands over
the inmate's clothing looking for any unusual signs
that might indicate the presence of a weapon or
contraband), and entry within the male inmates'
living areas for purposes of regular counts of pris
oners (four times a day), "winds" (surveillance
patrols about once every hour but at irregular
times), and to seek prisoners when their presence is
required elsewhere, etc. With respect to frisk
searching, while Conway did not specify why he
disliked it, he said that his "girlfriend doesn't like
it". He had no specific personal complaints as to
the way frisk searches had been conducted on him
by female guards. When asked if they touched the
genital area when conducting such searches, he
said that they had not done so on him although he
had "heard stories". He explained, and this was
confirmed by much other evidence, that frisk
searches are conducted as a matter of routine at
numerous posts throughout these institutions, and
that they are frequently conducted by women
because women guards are indiscriminately
deployed among the various posts. It is common,
for example, for a frisk search to be required of
every inmate passing certain points in the institu
tion, such as in entering the administrative or
hospital areas or in leaving the kitchen area after
working there.
As for the presence of female guards in the
living areas, Conway's main complaint was that
female guards frequently would have occasion to
look into an inmate's cell without warning and that
it sometimes happened that they would see male
inmates undressed or performing personal func
tions such as using the toilet. He said that on
average he would be seen on the toilet one to three
times a year by a female guard. Conway in his
prayer for relief seeks, inter alia, the following
declarations:
I. A Declaration that frisk searching by female guards upon
male inmates involving bodily contact in non-emergency situa
tions is unlawful; and
II. For female guards to be present or to be assigned to duties
which would, in the normal course, put them in a position to
view male inmates in lavatory facilities or otherwise in states of
undress, is unlawful; and
III. It is unlawful, except in emergency situations, for female
guards to patrol the actual living areas of male prisoners;
The statement of claim does not spell out on what
basis these various practices are "unlawful",
although it does appear to raise questions of
alleged inequality between the treatment of female
inmates and male inmates in federal institutions.
Reference is made to paragraph 13 of the same
Commissioner's Directive, quoted above, which
says:
13. No female inmate shall be frisk or strip searched pursuant
to paragraph 10., except by a female member.
This is in contrast to paragraphs 11 and 14 which
in effect allow male inmates to be frisk searched,
and, in an emergency, strip searched, by a female
officer. It is also alleged that in federal institutions
for women inmates, male guards "occupy perime
ter security positions only". Thus there appears to
be an allegation of denial of equality under the
law.
The applicant for certiorari, Richard Spearman,
began his present sentence in 1981 and will not be
eligible for parole until 1992. He was an inmate at
Collins Bay Penitentiary at the time of the events
in question here. On February 20, 1985 he was
proceeding to the administrative area to meet his
legal advisor, a law student from the Queen's
University Correctional Law Project. There is a
security post at the entrance to this area. He had
proceeded through a metal detector which, accord
ing to him, made no sound. There were two female
guards on duty there. One of them asked him to
submit to a frisk search. Instead he went through
the metal detector again for a second time, again
without a sound being made. The guard persisted
in wishing to make a frisk search. Spearman asked
that it be carried out by a male guard instead.
After enquiries were made he was told that no
male officer was available. The female officer said
if he refused to submit to a frisk search then he
could not see his lawyer and he was sent back to
his cell. As a consequence he was charged by the
officer with refusing to obey a prison rule. On
March 27, 1985, he appeared before the respon
dent Peter Radley sitting as a Disciplinary Court,
and he pleaded "guilty with an explanation". His
explanation was that he did not think it right that
he should be frisk searched by a woman: that it
was unnecessary in the circumstances that any
search be done, and that if it was to be done it
should have been done by a male guard. He said
he thought that it was an infringement of his
"pride, dignity and self-respect". The respondent
Radley as Chairman of the Court responded that
whatever Spearman thought of it, the order of a
female officer was a lawful order and that he was
obliged to obey it. The Chairman explained that it
was government policy to provide equal opportu
nity for females to serve as officers in federal
correctional institutions whether for male or
female inmates. The penalty imposed by the
Chairman was simply "to warn and advise", which
is the most lenient penalty authorized for such
cases. Spearman subsequently applied on Novem-
ber 28, 1985 for certiorari to quash the conviction
entered by Chairman Radley, on these grounds:
that the Disciplinary Court made an error going to
jurisdiction in failing to consider the defence of the
right to privacy; that the Court made an error
going to jurisdiction in failing to consider whether
the order violated by Spearman was a lawful
order; and that the Court made an error going to
jurisdiction in failing to consider as a defence the
right not to be discriminated against by reason of
sex.
LEGAL ISSUES
General Principles
These cases involve, to varying degrees, conflicts
real or apparent between the rights or aspirations
of two categories of persons: those of prison
inmates, to enjoy, to the extent that it is not
necessarily incompatible with their situation as
prisoners, standards of privacy and public decency
equivalent to those outside prisons; and those of
women to equal opportunities for employment in
the federal prison system. This conflict has come
about because of the great disparity in the num
bers of each sex sentenced to federal correctional
institutions, with women inmates representing only
a small minority of the total federal prison popula
tion. Whether this disparity reflects some sexual
discrimination in favour of women on the part of
the criminal justice system was not in issue before
me and I need not consider it. The result of the
disparity has been, however, that for women to
have significant opportunities for employment as
custodial staff in federal prisons it was considered
necessary, as explained in the excerpt from the
Report of the Parliamentary Committee quoted
above, that women be able to work on an essential
ly equal basis with men in prisons for males.
In approaching the issues it is necessary to keep
in mind, as was accepted by a majority of the
Supreme Court of Canada in Solosky v. The
Queen' that:
... a person confined in a prison retains all of his civil rights,
other than those expressly or impliedly taken from him by law.
Counsel for the plaintiffs and the applicant have
invoked several sections of the Canadian Charter
of Rights and Freedoms as well as paragraph 1(b)
of the Canadian Bill of Rights [R.S.C. 1970,
Appendix III]. As these cases all raise similar
problems with respect to the interpretation and
application of such provisions, I will first discuss
what I consider to be their proper interpretation in
relation to the main issues and then state my
conclusions with respect to each of the plaintiffs
and the applicant.
Charter, section 7
This section provides as follows:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
It is contended on behalf of the inmates that their
"security" has been deprived other than in accord
' [1980] 1 S.C.R. 821, at p. 839; see also R. v. Institutional
Head of Beaver Creek Correctional Camp, Ex p. MacCaud,
[1969] 1 O.R. 373 (C.A.), at pp. 378-379.
ance with the principles of fundamental justice.
They contend that section 7 has a broader "sub-
stantive" content which for present purposes
involves a right of privacy going beyond such
privacy interests as may be protected by sections 8
to 14 of the Charter. In support of this proposition
counsel for Weatherall relied principally on the
decision of the Supreme Court of Canada in the
reference Re B.C. Motor Vehicle Act. 2 In that
decision Lamer J. writing for five members of the
Court considered the inter-relationship between
section 7 and sections 8 to 14 and concluded that
section 7 should not be interpreted more narrowly
than the sections which followed it. He also went
on to say:
To put matters in a different way, ss. 7 to 14 could have been
fused into one section, with inserted between the words of s. 7
and the rest of those sections the oft utilised provision in our
statutes, "and, without limiting the generality of the foregoing
(s. 7) the following shall be deemed to be in violation of a
person's rights under this section". Clearly, some of those
sections embody principles that are beyond what could be
characterized as "procedural".
I understand the ratio decidendi of that case to be
that no one may be imprisoned as a result of a
process which does not involve the proof of a guilty
mind, and that the right to such process is protect
ed by section 7. This is a matter on which sections
8 to 14 are essentially silent. I understand the
Supreme Court to have held that the silence of
those sections does not preclude section 7 from
requiring the proof of certain elements such as
mens rea. The decision was not based, as I under
stand it, on a determination that sections 7 to 14
are the equivalent of one section which must be
read, as suggested hypothetically by Lamer J. in
the quotation above, so that section 7 states a
general principle of which sections 8 to 14 are but
examples. If this were the case, then I might
indeed be obliged to assume that there is a broader
right of privacy in section 7, in respect of the
matter of searches, going beyond the specific
provisions of section 8.
I do not understand the ratio decidendi of the
B.C. Motor Vehicle Act reference to require that
conclusion, and I would be reluctant to reach it
having regard to other jurisprudence of the
Supreme Court of Canada. In its first case involv
ing the Charter, Law Society of Upper Canada v.
2 [1985] 2 S.C.R. 486, at pp. 502-503.
Skapinker, 3 Estey J. writing for the Court referred
to sections 7 to 14 as "eight disparate sections".
This suggests that the Court viewed these sections
as dealing to varying degrees with different mat
ters and did not regard sections 8 to 14 as simply
examples of a greater whole, section 7. Indeed,
even where two different provisions, one generally
worded and the other specifically worded, appear
in the same section of the Charter, members of the
Court have declined to treat the specific as an
example of the general. In R. v. Therens 4 the
Court had to consider the relationship of subsec
tion 24(2) to subsection 24(1). Section 24
provides:
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court
concludes that evidence was obtained in a manner that
infringed or denied any rights or freedoms guaranteed by this
Charter, the evidence shall be excluded if it is established that,
having regard to all the circumstances, the admission of it in
the proceedings would bring the administration of justice into
disrepute.
One of the questions before the Court was whether
there was a more general power in subsection
24(1) to exclude evidence even where the particu
lar conditions specified in subsection 24(2) had not
been met. Given the permissive breadth of the
words in subsection 24(1), empowering a court to
grant "such remedy as the court considers appro
priate", and considering that subsection 24(2) is
cast in the imperative requiring in the particular
circumstances mentioned there that "the evidence
shall be excluded", it was fairly arguable that
beyond the duty to exclude evidence in subsection
24(2) there was a power to exclude it under sub
section 24(1). Le Dain J. stated:
It is clear, in my opinion, that in making explicit provision for
the remedy of exclusion of evidence in s. 24(2), following the
general terms of s. 24(1), the framers of the Charter, intended
that this particular remedy should be governed entirely by the
terms of s. 24(2). It is not reasonable to ascribe to the framers
3 [1984] 1 S.C.R. 357, at p. 377.
4 [1985] 1 S.C.R. 613.
of the Charter an intention that the courts should address two
tests or standards on an application for the exclusion of evi-
dence—first, whether the admission of the evidence would
bring the administration of justice into disrepute, and if not,
secondly, whether its exclusion would nevertheless be appropri
ate and just in the circumstances. The inevitable result of this
alternative test or remedy would be that s. 24(2) would become
a dead letter.'
While this was part of a dissenting judgment, the
majority of the Court did not disagree but found it
unnecessary to deal specifically with the question.
McIntyre J. concurred on this point with Le Dain
J. 6 The reasoning demonstrates that where general
and particular provisions coexist within a single
section, a court should be reluctant to regard the
specific provision as only an example of a more
general provision. This, it may be noted, is con
sistent with the difficulties which the Judicial
Committee of the Privy Council, and the Supreme
Court of Canada, had, in the area of the distribu
tion of powers, in attributing to the power granted
to Parliament with respect to the "peace, order,
and good government of Canada" in the opening
words of section 91 of the Constitution Act, 1867
[30 & 31 Vict., c. 3 (U.K) [R.S.C. 1970, Appen
dix II, No. 5] (as am. by Canada Act 1982, 1982,
c. 11 (U.K.), Schedule to the Constitution Act,
1982, Item 1)] a content greater than that speci
fied in the 31 enumerated heads of jurisdiction in
that section. It will be recalled that between the
opening grant of power with respect to "peace,
order, and good government" and the enumerated
heads, there were the words "but not so as to
restrict the generality of the foregoing terms of
this section", words similar to those which Lamer
J. hypothetically suggested, in the B.C. Motor
Vehicle Act reference, could have been used to join
section 7 of the Charter to the following seven
sections. Such words were not used in the Charter,
and even where they were used in section 91 of the
Constitution Act, 1867 they proved to be ineffec
tive to support a generalized power of Parliament
over "peace, order and good government" except
5 Ibid., at pp. 647-648.
6 In a subsequent case, R. v. Collins, [1987] 1 S.C.R. 265,
per Lamer J., at p. 276 the majority confirmed this interpreta
tion as the conclusion of the Court in Therens.
in situations of emergency.'
Apart from such jurisprudence on textual anal
ysis, decisions of the Supreme Court underline the
importance of both the historical and the teleologi-
cal approach. As the Court said in the B.C. Motor
Vehicle Act reference:
It ought not to be forgotten that the historic decision to
entrench the Charter in our Constitution was taken not by the
courts but by the elected representatives of the people of
Canada. It was those representatives who extended the scope of
constitutional adjudication and entrusted the courts with this
new and onerous responsibility. 8
This "historic decision" is presumably relevant not
only with respect to legitimizing judicial review
but also with respect to determining its scope. The
B.C. Motor Vehicle Act reference reaffirmed the
validity of the "purposive" approach adopted by
the Court in earlier Charter decisions 9 "to ascer
tain the purpose of the section 7 guarantee" and
thus interpret its meaning. In Attorney General of
Quebec v. Quebec Association of Protestant
School Boards et al. 10 the Court was able to
determine the purpose of section 23 of the Charter
having regard to the history of language legislation
in Canada. It was able to attribute to the framers
of the Charter the intention to override the "Que-
bec Clause", section 73 of Quebec's Charter of the
French Language [R.S.Q. 1977, c. C-11]. A com
mensurate purpose was attributed to section 23 of
the Charter with the result that the provincial law
could not be saved by resort to section 1 of that
instrument. It appears that such history of section
23 was judicially noticed for the most part. Using
a similar approach, it is now commonly known and
a proper subject of judicial notice that in the
framing of the Charter many provincial govern
ments were opposed to any broadly worded version
See e.g. Re Anti-Inflation Act, [1976] 2 S.C.R. 373; Hogg,
Peter W. Constitutional Law of Canada (2nd ed., Toronto:
Carswell, 1985) at pp. 371-372.
8 Supra note 2 at p. 497.
9 Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145; R. v.
Big M Drug Mart Ltd. et al., [ 1985] 1 S.C.R. 295.
10 [1984] 2 S.C.R. 66, especially at pp. 79-84.
of section 7 or its equivalent." What is even more
relevant for present purposes is that on July 4,
1980 the Government of Canada proposed to pro
vincial governments a draft of a forerunner to the
present section 7. This draft provided in part as
follows:
6. (1) Everyone has the right to life, liberty and security of
his or her person and the right not to be deprived thereof except
by due process of law, which process encompasses the fol
lowing (Emphasis added.)
There then followed all or most of the rights now
found in sections 8 to 14 and in addition, the
following:
(b) the right to protection against arbitrary or unlawful
interference with privacy. ' 2
With the linking words as italicized above the
effect would have been to express the opening
words as a general principle of which the specific
rights were but examples, as the word "encom-
passes" would normally mean to "contain". This
formulation was not generally acceptable to the
provinces and subsequent drafts divided up legal
rights into separate sections as now found in the
Charter. Given this history, it is difficult for me to
conclude that it was the "purpose" of the framers
to create in section 7 a general right which was to
"encompass" all the other rights and which must
be taken to go beyond sections 8 to 14 in guaran
teeing the very same rights protected in those
sections. The inclusion of a specific right of priva
cy having also been rejected, a doubt is raised that
such a right was nevertheless intended to be
included in section 7.
" See e.g. Romanow, Whyte, Leeson Canada ... Notwith
standing Toronto: Carswell/Methuen, 1984, at pp. 245-246.
The necessity of provincial consent for constitutional change as
a matter of constitutional convention was, of course, confirmed
by a majority of the Supreme Court in Re Resolution to amend
the Constitution, [1981] 1 S.C.R. 753, at p. 909.
12 For the text of this proposal, and subsequent texts, see
McLeod, Takach, Morton, Segal, The Canadian Charter of
Rights: the prosecution and defence of criminal and other
statutory offences, Vol 2. Toronto: Carswell, 1983, at pp.
A-128 ff.
Considering the text, the history, and the appar
ent purpose of dividing these sections, I must
presume that prima facie the separate sections
deal with separate things. As in the interpretation
of any document, where separate sections or para
graphs potentially overlap each other, one must try
to find a way of reading them together so that both
can be given some meaning, as Le Dain J. did in
the Therens case in respect of subsections 24(1)
and (2) of the Charter. 13 Thus, in reading sections
7 and 8 together, I would not assume that, because
section 8 protects against "unreasonable search or
seizure", section 7 nevertheless protects against,
for example, "reasonable search or seizure"; or in
reading sections 7 and 12 together I would not
assume that because section 12 prohibits "cruel
and unusual treatment or punishment" section 7
nevertheless prohibits, for example, "humane and
usual treatment or punishment". To do so would
make sections 8 and 12 pointless. As Le Dain J.
said in the Therens case, in rejecting the argument
that subsection 24(1) permitted the exclusion of
evidence in any appropriate case even though the
requirements of subsection 24(2) had not been
met:
The framers of the Charter could not have intended that the
explicit and deliberately adopted limitation in s. 24(2) on the
power to exclude evidence because of an infringement or denial
of a guaranteed right of freedom should be undermined or
circumvented in such a manner. 10 .
Therefore it appears to me that there is no
simple formula for relating section 7 to sections 8
to 14. Instead it is necessary that in each case one
examine section 7 and other sections which appear
to be relevant and try to give each of them a
distinct meaning. IS It may be that in some cases
section 7 may provide certain procedural guaran
tees as to how other legal rights may be denied. It
may be that section 7 may supplement the other
legal rights in other ways. Much depends on the
particular language chosen by the framers with
"Supra note 4.
14 Ibid., at p. 648.
IS The Supreme Court has elsewheré adopted this approach
in Charter interpretation: Dubois v. The Queen, [1985] 2
S.C.R. 350, at pp. 365-366; and in constitutional interpretation
generally: The Queen v. Beauregard, [1986] 2 S.C.R. 56, at pp.
80-81.
respect to each legal right.
With respect to the cases before me, it is my
view that each involves a "search". Black's Law
Dictionary, 5th edition (1979) defines "search" as:
[a]n examination of a man's house or other buildings or
premises, or of his person ... with a view to the discovery of
contraband or illicit or stolen property, or some evidence of
guilt to be used in the prosecution of a criminal action for some
crime or offense with which he is charged.
It will be noted that this definition contemplates
searches of both premises and persons. 16 While it
refers only to discovering evidence of guilt for
purposes of prosecution, I believe it is validly
applicable to the searches in question here. In part,
of course, the examinations here are for the pur
pose of disclosing articles or activities forbidden by
the prison regulations, in respect of which discipli
nary charges may be laid. In part they are for the
purpose of ensuring the safe custody of inmates in
accordance with the law. They all involve the
mandatory examination by public officers of prem
ises, persons, and activities for purposes of law
enforcement and in my view therefore constitute
"searches".
Section 8 of the Charter deals with a "search or
seizure". This section also contains its own modifi
er, precluding only "unreasonable" searches or
seizures. The Supreme Court in Hunter et al. v.
Southam Inc. " has held that the test of what is
"unreasonable" involves an assessment of the
respective interests of individuals and of the state
which assessment may lead to certain conclusions
as to permissible grounds and procedures for the
conduct of searches. In the present cases, I am,
like the Ontario Court of Appeal in Regina v.
Noble," unable to see how if the searches in
question meet the tests of section 8 they could
nevertheless be prohibited by section 7.
16 That searches of the person are covered by section 8 of the
Charter was assumed in the Collins case, supra note 6.
" Supra note 9.
18 (1984), 48 O.R. (2d) 643 (C.A.), at p. 659. See also R. v.
Yellowquill, [1984] 12 W.C.B. 9 (Man. Q.B.).
In coming to this conclusion I would simply
affirm that I accept without difficulty the argu
ment of counsel that searches of the person or his
living quarters, in circumstances which constitute
an invasion of normal privacy, is an infringement
of his "security" and therefore potentially within
the scope of section 7. But reading sections 7 and 8
together, I am unable to conclude that the framers
intended to preclude by section 7 searches of this
nature not precluded by section 8. It is tempting to
accept the arguments on behalf of the inmates that
there is some abstract right of "privacy" which
must be protected somewhere in the Charter. But
what is in issue here is a particular form of intru
sion on privacy, namely through searches by offi
cers for the purpose of maintaining security in
prison institutions. The plaintiffs and applicant did
not seriously dispute the necessity for body
searches and surveillance of cells. We are not
dealing with intrusions stemming from idle curiosi
ty or officious excess of authority. We are dealing
with purposeful inspections of persons and prem
ises in the interest of security and such actions
must, I think, be taken to be within the meaning of
a "search" as specifically dealt with by the fram
ers of the Charter in the particular language of
section 8. To be sure, as held in the Hunter case, it
is a particular kind of privacy interest which sec
tion 8 recognizes and protects from a particular
form of intrusion. A regime is established for
testing that particular kind of intrusion and I think
by implication other tests under the Charter are
thereby precluded.
I therefore find that section 7 is not applicable
to these cases.
Charter, section 8
Weatherall invokes section 8 to attack the
Regulations and Commissioner's Directives, on the
basis that they do not impose conditions precedent
for strip-searches (such as probable cause to
believe the inmate in question is carrying some
thing prohibited, and prior authorization); and on
the basis that they are carried out in an unreason
able manner because they do not adequately
restrict or prevent strip searches of male inmates
being conducted in the presence of a female offi
cer. While counsel for Conway and Spearman did
not rely much on section 8, he did adopt it as an
alternative to his argument based on section 7 with
respect to the right of privacy. As I have indicated
above, in my view the only relevant privacy protec
tion here is that provided under section 8, which is
thus potentially available in both these cases as a
basis upon which Conway and Spearman can seek
to have searches treated as "unlawful". As I
understand the pleadings and materials in these
two cases, the plaintiff Conway and the applicant
Spearman are not challenging the conditions
precedent laid down in the Regulations and the
Commissioner's Directives for a search to be
launched—either frisk searching or the surveil
lance of cells. Rather, they contend that such
searches are carried out in an unreasonable way if
they are "cross-gender", that is involving a female
guard searching the person, or examining the
occupied cell, of a male inmate. (I adopt as a
matter of convenience, without regard to etymolo
gy, the parties' use of "gender" to designate "sex"
in this context.) As a result, I need consider the
adequacy of pre-conditions only in relation to skin
searches.
I take as definitive of section 8 requirements a
recent statement of the Supreme Court in R. v.
Collins. 19
A search will be reasonable if it is authorized by law, if the
law itself is reasonable and if the manner in which the search
was carried out is reasonable.
(a) Pre-conditions for searches
I shall consider first the question of conditions
precedent for the conduct of a strip search, as
raised by Weatherall in relation to section 8. This
relates to the existence of authority under, and the
reasonability of, the law on which it was based.
Counsel for Weatherall contended that for a
search to be "reasonable" within the contempla
tion of section 8 of the Charter "there is required
an actual and reasonable belief that grounds exist
that would justify a search or seizure for a purpose
permitted by law." In support of this he cited the
decision of the Ontario Court of Appeal in R. v.
19 Supra note 6, Lamer J., at p. 278.
Rao. 20 As to prior authorization, he argued on the
basis of Hunter et al. v. Southam Inc. 21 that a
"warrantless search is prima facie unreasonable":
it was therefore contended that there should be
"prior autorization" for a strip search of any
inmate, although it was not made clear what kind
of authorization is necessary—whether that of a
court in the form of a warrant or that of a senior
officer in the institution. It appeared from argu
ment that what was really contemplated was prior
authorization from a senior officer.
I have examined the cases relied on by counsel
and I am not satisfied that they are authority for
any absolute pre-conditions in the context of strip
searching of inmates. With respect to the require
ment of reasonable and probable grounds for a
search, it was said in Rao that if the section in
question were to be interpreted to authorize a
warrantless search:
without requiring a belief in the existence of reasonable
grounds for the search, it would, on its face, be clearly unrea
sonable, and hence unconstitutional. 22
It must be noted, however, that this statement was
obiter dicta, and was made in the context of a case
involving the search without warrant of an office.
The Court likened the "legitimate expectation of
privacy" in respect of an office to that prevailing
in respect of one's home. 23 With respect to the
requirement of prior authority, the Rao case noted
that there could be circumstances in which even
the search of an office without warrant would be
reasonable, and also distinguished between the
search of fixed locations (where it is usually possi
ble to get a warrant in time) and the search of
moving objects such as vehicles, vessels or
aircraft. 24 While the Supreme Court in Hunter et
al. v. Southam Inc., a case also involving a search
of an office, held the search to be unreasonable
because the prior authorization was not adequate,
20 (1984), 40 C.R. (3d) 1 (Ont. C.A.) especially at pp. 15-16.
21 Supra note 9.
22 Supra note 20.
23 Ibid., at p. 32.
24 Ibid., at p. 35.
it also recognized that prior authorization is not an
absolute requirement. In the first place, the Court
emphasized that the guarantee in section 8 from
unreasonable search and seizure only protects a
reasonable expectation. It said that in a particular
situation an assessment must be made as to wheth
er the individual's interest in being left alone is
outweighed by the government's interest in intrud
ing on privacy. Further, it was recognized that "it
may not be reasonable in every instance to insist
on prior authorization" but that "where it is fea
sible to obtain prior authorization ... such author
ization is a pre-condition for a valid search and
seizure". 25 Thus there is an element of relativity
which must enter into any decision here as to the
prerequisites for the particular situation of a skin
search of an inmate in a correctional institution.
I am satisfied that searches of inmates do not
require warrants. 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 up the
urgency of such searches. Further, it is not reason
able to equate the expectation of privacy in a home
or office with that in a prison.
There is some Canadian jurisprudence to the
effect that skin searches in remand centres, con
ducted without any special prior authority or with
out reasonable and probable belief that the
individual to be searched is carrying prohibited
matter, do not violate section 8. In Re Maltby et
al. and The Attorney-General of Saskatchewan et
a1. 26 the Court upheld routine strip searches after
"contact" visits (that is, visits such as the one here
in which Weatherall participated where there is no
physical barrier to a visitor passing items to an
inmate). In Soenen v. Dir. of Edmonton Remand
25 Supra note 9, at p. 161.
26 (1982), 143 D.L.R. (3d) 649 (Sask. Q.B.), aff'd (1984), 13
C.C.C. (3d) 308 (Sask. C.A.).
Centre'-' the Court upheld, as not violating section
8, strip searches at a Remand Centre involving a
visual examination of the rectal area "provided
that the visual search is conducted bona fide in a
search for weapons or contraband and not for the
purpose of punishment", even in the absence of
reasonable and probable cause to believe that the
particular prisoner being examined was concealing
such an object on his person. Such searches were
apparently conducted fairly routinely where staff
members were looking for missing objects which
might be turned into weapons.
There is also strong authority in U.S. jurispru
dence that similar searches in prisons there do not
violate the Fourth Amendment which provides
that:
[t]he right of the people to be secure in their persons, houses,
papers and effects, against unreasonable searches and seizures,
shall not be violated ....
In the leading case, Bell v. Wolfish 28 the Supreme
Court of the United States upheld strip searches,
with visual inspection of body cavities, as conduct
ed routinely in a pre-trial detention centre after
every contact visit. The Court seems to have put
some stress on the particular problems of security
in a pre-trial detention centre. It also recognized
that while there had only been one instance where
an inmate was discovered attempting to smuggle
contraband on his person into that institution, this
tended to show the effectiveness of the search
programme as a deterrent. The Court seems to
have accepted the deterrent as a justification for
searches, and this of course by implication refutes
the need for reasonable and probable cause to
suspect that any particular prisoner searched is
concealing contraband.
While there may be some differences between
what is justifiable in a remand centre, and in
long-term imprisonment situations, the evidence
satisfies me that a convicted inmate cannot reason
ably expect anything like the respect for privacy in
respect of bodily searches that a non-inmate would
normally be entitled to expect: that is, one of the
27 (1983), 35 C.R. (3d) 206, at p. 223; 3 D.L.R. (4th) 658
(Alta. Q.B.), at p. 673.
28 441 U.S. 520 (1979), at pp. 558-560.
limitations on his normal rights implicit in convic
tion and imprisonment is his subjection to searches
of his person for the protection of security and
good order of the institution and its inmates.
Nevertheless, such searches should be subject to
some control to ensure that they are truly used for
the purposes which justify this infringement of
normal human rights. I have concluded that while
there is a place for routine skin searches without
the need for prior authorization specific to that
search, and without the need for showing reason
able and probable cause to suspect the particular
inmate searched to be concealing some forbidden
item, the circumstances in which such routine
searches are authorized should be laid down by
Regulation. Such rules will have to be, in them
selves, reasonable in identifying situations in
which, by reason of probability of, or opportunity
for, concealment of contraband, or the need for
deterrence of smuggling, a routine strip search is
justified in the public interest. As for non-routine
searches, I can see no reason why there should not
also be some legal rules providing for such situa
tions. There might be, for example, a rule provid
ing that, in case of an immediate and specific
security or enforcement problem, a general skin
search could be conducted of all or a certain group
of inmates. This could arise, for example, where an
inmate has been stabbed in a cell block and it is
thought necessary to skin search all inmates there
for the weapon. But where, apart from such rou
tine or general skin searches, individual inmates
are to be skin searched, there should be a rule
requiring those conducting the search to have
reasonable and probable cause for believing that
the inmate in question is concealing some prohib
ited matter on his person. Where time or circum
stances do not permit those conducting non-routine
searches to obtain authority from a superior offi
cer, there should be some meaningful requirement
of review by such superior officer after the event.
The evidence as to post-search reviews at Joyce -
ville does not suggest to me that they were likely to
be effective in deterring unjustified searches.
In short, it is my view that skin searches (but
not frisk searches) are so intrusive of human digni
ty and privacy that there must be some criteria
laid down for their use: with respect to defining
circumstances where routine individual searches,
non-routine general searches, and non-routine
individual searches are justified; and with respect
to requiring that reasonable and probable cause be
demonstrated to a superior officer either before or
after all non-routine searches. The Rules in exist
ence at the time of the search of Weatherall
clearly do not meet these requirements. Paragraph
41(2)(c) of the Penitentiary Service Regulations
provides as follows:
41....
(2) Subject to subsection (3), any member may search
(c) any inmate or inmates, where a member considers such
action reasonable to detect the presence of contraband or to
maintain the good order of an institution; [Emphasis
added.]
For reasons which I will elaborate later, I consider
this to be the critical provision because only it has
the force of law and the lawfulness of any search
would have to be tested against it and not against
the Commissioner's Directives. This regulation
does not establish a sufficiently objective pre
condition for any search. It purports to permit a
search where the staff "member considers such
action reasonable" to detect contraband or to
maintain good order. For the reasons stated above,
I think the rules must be more precise.
The situation might still be defensible at least in
part if the regulations had adopted by reference
such criteria as are provided in the Commissioner's
Directives, but it does not do so. The Commission
er's Directive applicable at the time in question,
800-2-07.1, provides as follows:
12. Subject to paragraph 10., a member may strip search any
inmate:
a. immediately prior to leaving and on return to an
institution;
b. immediately prior to entering and on leaving the open
visiting area of an institution;
c. on leaving and entering a dissociation area, except when
the inmate has immediately been searched as in b.
above; and
d. on leaving work areas.
As I understand it, paragraph b. as it appears in
this section would cover the situation in which
Weatherall found himself, namely leaving an open
visiting area. But as Directives cannot be seen as
having legal force they do not constitute legal
requirements which would make the search power
provided in the Regulations a reasonable one
within the meaning of section 8 of the Charter.
This is without regard to the possible application
of section 1 of the Charter. As the Supreme Court
said in Hunter et al. v. Southam Inc., 29 "It should
not fall to the courts to fill in the details that will
render legislative lacunae constitutional." The
Court in that case refused to "read down" or "read
in" so as to provide implied criteria which Parlia
ment had not itself provided in respect of searches
conducted under section 10 of the Combines
Investigation Act [R.S.C. 1970, c. C-23]. So also
here I am not prepared to read into paragraph
41(2)(c) of the Regulations the necessary criteria.
It may also be noted that section 12 of the Com
missioner's Directive is silent on the matter of
criteria for other uses of skin searches not of the
nature described therein.
(b) Manner of Conducting Search
The remaining issue under section 8 is that of
the reasonability of the manner in which a search,
otherwise properly authorized, is carried out. The
issue in each of the three cases is as to whether
"cross-gender" searches are reasonable in this
sense. All three cases involve searches of the
person and the Conway case also involves the
"search", through surveillance, of occupied cells.
I accept, as was noted in the Collins case 30 that
for a search to be "reasonable" it must not only be
based on the existence of certain conditions prece
dent but must also be carried out in a reasonable
manner. Reasonability in execution includes, in my
view, respect for normal standards of public decen-
29 Supra note 9, at p. 169.
"Supra note 6; see also R. v. Rao, supra note 20, at p. 15.
cy to the extent that the constraints implicit in the
situation reasonably permit.
Counsel did not bring to my attention any
Canadian judicial decisions on the subject of
"cross-gender" searches of inmates or their cells.
A decision of a Human Rights Tribunal estab
lished under the Canadian Human Rights Act
[S.C. 1976-77, c. 33], Stanley et al. v. Royal
Canadian Mounted Police, issued February 9,
1987 was referred to. The Chairman of that Tri
bunal held that the RCMP was justified in refus
ing to employ women as guards in their lock-ups
where male pre-trial detainees are held temporari
ly. He decided that a requirement by the RCMP
that such guards be of the same sex as their
prisoners was a bona fide occupational require
ment and therefore the RCMP was not guilty of
discrimination in refusing to employ women in
such establishments. This requirement was upheld
as a legitimate protection of "inmate privacy".
Such a decision is not in any event binding on this
Court and of course it deals with issues involving
the terminology of the Canadian Human Rights
Act, not the Charter. Further, as the Chairman
expressly recognized, his conclusions are not neces
sarily applicable to other kinds of institutions.
Considerable stress was laid in that case on the
particular security problems of such lock-ups,
including the suicidal tendencies of those newly
arrested. Such lock-ups are obviously different in
many ways from federal prisons housing those
sentenced to two years or more of imprisonment,
where there is an ongoing community relationship
among staff and inmates and where, for example,
suicidal tendencies in certain inmates will have
most likely been identified.
In at least one U.S. decision, Grummett v.
Rushen 31 the U.S. Court of Appeals for the 9th
Circuit held that at San Quentin, one of Cali-
fornia's two highest security prisons, where in
31 779 F.2d 491 (9th Cir. 1985), at p. 496.
1985 some 113 of the 720 correctional officers
were female, the observation by female guards of
strip searches of male inmates, in very rare emer
gency situations, did not violate inmates' rights
under the Fourth Amendment with respect to
"unreasonable searches".
It is obvious that the prison environment
impinges, and must impinge, on the privacy of
inmates in ways which would not normally be
accepted by those in ordinary civilian life. In some
respects these vicissitudes are not unique to prison
life: those involuntarily conscripted for military
service or committed by law to mental hospitals
may be exposed involuntarily to similar intrusions
on privacy. At least since the adoption of the
Charter, however, such intrusions, if other than
trivial, must be justified in terms of the "assess-
ment" process which the Supreme Court described
in Hunter et al. v. Southam Inc., and thus must be
measured in relation to "reasonable expectations
of privacy".
In respect of strip searches, what is a reasonable
expectation depends on general standards of public
decency. In trying to define the relevant standard
here, it is necessary to put to the side those situa
tions where people voluntarily expose themselves
to cross-gender viewing in states of undress, for
example by committing themselves to the care of
medical personnel of the opposite sex. It is also
necessary to ignore the needs of the hypersensitive.
Expert evidence was called by the defendants and
respondent, for example, to the effect that some
people experience acute embarrassment in being
viewed in the nude condition by any other person
of whichever sex. Presumably there are others with
exhibitionist tendencies who have little or no sen
sitivity to any such viewing. What is involved here
is the involuntary exposure of the body to fairly
close and deliberate viewing by a member of the
opposite sex. I am satisfied that in most circum
stances this offends normal standards of public
decency and is not justified, even in the prison
context. Indeed the defendants in the Weatherall
case did not attempt to justify cross-gender view
ing of strip searching except in emergencies and I
believe that to be its proper limit, a limit which
was at least implicitly adopted in Grummett v.
Rushen. ''-
Again, I find that the Penitentiary Service
Regulations do not adequately limit the power of
strip searching in this respect. As quoted above,
paragraph 41(2)(c) authorizes, subject to subsec
tion (3) [as added by SOR/80-462], a search of
any inmate "where a member considers such
action reasonable". Subsection (3) limits this gen
eral power only to the extent of providing that
41....
(3) No female person shall be searched pursuant to subsec
tion (2) except by a female person.
This clearly implies that male persons may be
searched by female persons. Again, the Commis
sioner's Directive 800-2-07.1 in effect at the rele
vant times provided that:
14. A strip search shall be conducted with due regard for
privacy and by a member of the same sex and normally in
the presence of a witness of the same sex. In urgent
circumstances, a male inmate may be searched by a female
member.
It will be noted that the Directive does purport to
limit cross-gender searches of male inmates to
those in "urgent circumstances". This would be a
more convincing safeguard for inmates if it elabo
rated somewhat on the criteria for identifying
urgency or emergency, and if it specifically pro
vided for a meaningful post-search review of the
decision to conduct such a search and the manner
of its conduct. But in any event the Commission
er's Directive does not have the force of law and
therefore does not limit the general legal power in
section 41 of the Regulations for the conduct of a
search wherever an officer "considers such action
reasonable", including by implication strip
searches of male inmates by female officers.
With respect to frisk searching—that is, the
searching of a fully-clothed inmate by an officer
running his or her hands over the clothing to
detect the presence of contraband—the essential
complaint made by both Conway and Spearman is
that female officers are ever allowed to conduct
such searches on male inmates. That is, they do
not complain of the particular way in which such
32 Ibid.
searches are done, other than that they are per
formed by females.
As to the manner of such searches, whether
done by males or females, the Regulations are
silent but the Commissioner's Directive
800-2-07.1, section 7 defines for its purposes the
word "search" to include a frisk search and
describes a frisk search as follows:
a. frisk search —is a hand search from head to foot, down the
front and rear of the body, around the legs and inside
clothing folds, pockets and footwear and includes the
method of searching by use of hand held scanning devices.
I believe this adequately describes (even if it is not
legally binding) the manner in which such searches
are normally done. It will be noted that the Direc
tive does not expressly preclude a search of the
genital area. Evidence presented by the defendant
and respondents was clear that the genital area is
avoided in frisk searches and this was also demon
strated to me in a simulated search conducted in
Court. The plaintiff Conway conceded that he had
never been frisk searched in the genital area
although he had "heard stories" of it happening to
others. In any event, I need make no finding as to
the reasonability of frisk searches in this respect
because the plaintiff Conway and the applicant
Spearman are attacking instead the conduct of any
frisk search by a female officer of a male inmate.
U.S. cases have upheld routine "patdown", i.e.
frisk, searches as not infringing rights under the
Fourth Amendment with respect to "unreason-
able" searches, 33 even where such searches includ
ed the genital area. 34 The courts in those cases
generally emphasized the limited nature of the
privacy rights of prisoners and balanced these
against the very important security requirements
of prisons.
It is true that one has to use with caution
American jurisprudence in this area, particularly
having regard to the fact that the U.S. Bill of
33 See e.g. Smith v. Fairman, 678 F.2d 52 (7th Cir. 1982), at
p. 53.
34 Grummett v. Rushen, supra note 31, at p. 495; Bagley et
al. v. Watson et al., 579 F. Supp. 1099 (D. Oreg. 1983), at p.
1103.
Rights does not have a provision comparable to
section 1 of the Canadian Charter of Rights and
Freedoms. This means that the balancing of the
public versus the private interest must be done by
U.S. courts more within the interpretation of the
constitutional right itself since there is no general
provision for the public interest to be redeemed
through limitations on private rights prescribed by
law as contemplated by section 1 of the Charter.
Nevertheless, the Supreme Court of Canada in
Hunter et al. v. Southam Inc. held that in respect
of section 8 of the Charter, because of its prohibi
tion of only "unreasonable" searches, it is neces
sary in determining whether there has been an
infringement of that section to make an assessment
of individual versus collective interests. The Court
made such an assessment in that case wholly in the
context of section 8, as it found that no case had
been made out for the application of section 1.
I have concluded that the routine frisk searches
which are in question in these proceedings do not
infringe rights protected by section 8 of the Chart
er. In the first place, such an invasion of privacy is
by any standard of measurement trivial and "trivi-
al or insubstantial" burdens do not give rise to
Charter violations. 35 Even if it is seen as something
more than trivial, the very limited intrusion on
privacy involved is more than offset by the public
interest. First and foremost is a need for adequate
security in these institutions and the evidence sat
isfies me that both routine and special frisk
searches, conducted by someone, are an important
element in maintaining that security. Secondly, I
am satisfied that there is an important public
interest to be served in the employment of women
in federal penal institutions. This is a matter of
fundamental fairness in allowing women equal
access to employment in a sizeable sector of the
federal Public Service. At Collins Bay, where the
issue is relevant in the present cases, it appears to
me that to deny female guards the ability to frisk
search would preclude their employment. Of
some 20 security posts there, all but 3 or 4 involve
35 R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713,
at p. 759; see also Headley v. Canada (Public Service Commis
sion Appeal Board), [1987] 2. F.C. 235 (C.A.), MacGuigan J.,
at p. 244; Gibson, Dale. The Law of the Charter: General
Principles. Calgary: Carswell, 1986, at p. 141.
routine or occasional searching. And, according to
the evidence, any officer working in contact with
inmates must be able to perform such searches on
an ad hoc basis. If female guards were unable to
perform such duties their usefulness would be
drastically limited with a very negative effect on
their careers. Further, the evidence satisfies me
that the presence of women officers in such an
institution has an important beneficial effect on
the attitude and conduct of most inmates and can
contribute in an important way to assisting in their
ultimate readjustment to society after release. I
cannot of course, nor need I, express an opinion as
to frisk searching in other institutions with respect
to which I have neither complaints nor evidence
before me.
The remaining issue which may engage section 8
of the Charter is that raised by Conway with
respect to the presence of female guards in the
living areas of male inmates. Conway wants a
declaration that it is unlawful:
for female guards to be present or to be assigned to duties
which would, in the normal course, put them in a position to
view male inmates in lavatory facilities or otherwise in states of
undress ....
He also wants a declaration that it is unlawful:
except in emergency situations, for female guards to patrol the
actual living areas of male prisoners ....
Both of these requests for declarations involve
essentially the same problem: that when female
guards are in the cell blocks on a routine basis, as
described in the facts at the beginning of these
reasons, for purposes of counts, winds, or visiting
specific prisoners for special reasons, they may see
prisoners in a state of undress or using the toilet.
Although most of the cells in Collins Bay have
solid doors with a small window, and the remain
der have screens over three-quarters of the door
opening, it is nevertheless possible for female
guards to look into the cells and indeed it is their
duty to do so when conducting a count or a
"wind". There was no evidence of other interfer-
ence with personal modesty, such as cross-gender
viewing of inmates in showers.
Again, U.S. jurisprudence has not been particu
larly sympathetic to inmate complaints concerning
such situations. As a matter of basic principle the
U.S. Supreme Court held, in a case actually
involving a "shake down search" of a prison cell,
that although prisoners retain such rights as are
not fundamentally inconsistent with imprisonment
they have no legitimate expectation of privacy in a
prison cell and that therefore they are not protect
ed by the Fourth Amendment from searches of
their cells. 36 In the Grummets case 37 the U.S.
Court of Appeals for the 9th Circuit found that
the routine employment of female guards in posi
tions where they could look, from a considerable
distance, into the cells of male inmates while on
routine patrol did not violate the Fourth Amend
ment, even though on occasion they might see,
from a distance, inmates partially or totally
undressed. This was within the particular context
of San Quentin, a high security prison designed to
permit "observations of the inmates by institution
officials at all times".
As indicated above, section 8 cannot be invoked
to remedy trivial detractions from privacy. Fur
ther, 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 at Collins Bay to view inmates in their
cells in such circumstances. This means in effect
that, other than in emergencies, female officers
should not be in a position to make unannounced
or unscheduled visual examinations of occupied
cells of male inmates. On the basis of the evidence
I do not believe this should create any very serious
3 6 Hudson v. Palmer, 82 L. Ed. (2d) 393 ( U.S.S.Ct. 1984).
See also Lanza v. New York, 370 U.S. 139 (N.Y.C.A. 1962).
37 Supra note 31, at pp. 494-495.
administrative problems nor impair the career
opportunities of female guards. According to the
evidence of Warden Payne of Collins Bay there
are four counts a day, at 7:00 a.m., noon, 4:00
p.m., and 11:00 p.m. These times are well known
to the inmates, no doubt, and they can avoid being
in embarrassing positions at those times when they
know female officers may participate in the count.
With respect to individual visits to the cell of a
particular inmate, the evidence indicated that a
female officer approaching such a cell would nor
mally announce her presence before looking in and
again this is properly respectful of the privacy
rights of the inmate without detracting from
prison management. It appears to me that the only
problem may arise with respect to the "winds"
which are conducted on the average every hour,
but at random times in order to preserve an ele
ment of surprise. From what I can understand of
the staffing arrangements, and the fact that only
14.5% of the officers at Collins Bay are females, I
do not believe that such a prohibition on
unscheduled or unannounced viewing by female
guards on a "wind" should cause serious problems
in administration or be significantly harmful to the
career opportunities of female officers. It appears
to me that there are at least two reasonable alter
natives: if a female officer is conducting the
"wind", her presence can be announced just as the
"wind" begins (which according to the evidence
happens any way through a warning shout from
the first inmate who sights the arrival of the
officer conducting the "wind"); or, male officers
can do the actual walking through the cell blocks,
perhaps using female officers to "vestibule" them
(that is, to be the guard to watch from the ves
tibule the other officer who is actually in the cell
block, a practice employed for reasons of security).
Further, I would only consider such steps to be
necessary during the normal waking hours of the
inmates: if an inmate chooses to leave himself
exposed during the normal hours of sleep he can be
taken to run the risk of cross-gender viewing. The
appropriate administrative arrangements are of
course a matter for the authorities of the institu
tion and I make these suggestions only to indicate
that the evidence satisfies me that there are
reasonable alternatives to the kind of intrusion of
privacy which the present system permits.
Charter, section 12
Only Weatherall invokes section 12 of the
Charter which provides that:
12. Everyone has the right not to be subjected to any cruel
and unusual treatment or punishment.
He does this in support of his request for a decla
ration that paragraph 41(2)(c) of the Penitentiary
Service Regulations and section 14 of the Com
missioner's Directive 800-2-07.1 are of no force
and effect. These provisions have been quoted
above. Weatherall's complaint, and the only issue
on which he has standing, relates to cross-gender
strip searching.
I should say at the outset that I accept that strip
searching of inmates is "treatment" within the
meaning of section 12. There was no evidence to
suggest that strip searches, whether in the case of
Weatherall or others, is used as "punishment" and
it certainly could not be so used lawfully. This was
certainly not part of any sentence imposed by a
court nor am I aware of any authorization in
statute or regulation for the use of such searches
as punishment for offences within the institution.
Further, I accept the view that the words "cruel
and unusual" may be read as "interacting expres
sions colouring each other ... and hence to be
considered together as a compendious expression
of a norm." 38
Also, I believe that there is an element of
relativity in what is "cruel and unusual". As
Linden J. said in Re Mitchell and the Queen: 39
... the standard to be applied in determining whether the
treatment or punishment is cruel and unusual is whether the
treatment or punishment is so excessive as to outrage standards
of decency and surpass all rational bounds of treatment or
punishment. The test, thus, is one of disproportionality ... .
Applying these principles to the present case, it
should first be noted that counsel for the defendant
3 " Laskin C.J., dissenting in Miller et al. v. The Queen,
[1977] 2 S.C.R. 680, at pp. 689-690. See also Gittens (In re),
[1983] 1 F.C. 152 (T.D.), at pp. 160-161; Re Mitchell and the
Queen (1984), 150 D.L.R. (3d) 449 (Ont. H.C.), at p. 470.
n Ibid., at p. 474, and see cases referred to therein.
did not seek to justify, nor do I think he could
have, the use of strip searches of male inmates in
the presence of female officers in circumstances
other than emergencies. Such a practice would, in
my view, violate standards of decency and could
not be supported on grounds of necessity or equal
opportunities for women. That there is no necessity
for such a practice was indeed confirmed by evi
dence of officials from both Collins Bay and
Joyceville to the effect that strip searches in the
presence of women guards are extremely rare. No
one contends that this would be an accepted prac
tice in ordinary circumstances. In my view it
would normally violate section 12 of the Charter,
absent an emergency.
I am satisfied, however, that such searches
would not violate section 12 in the case of a true
emergency where the security of the institution
generally, or of particular officers or inmates, is
seriously endangered or where the lack of sudden
action would likely enable the concealment, impor
tation, or passing of contraband.
It is not for the Court to define what would be
such an emergency, however. For reasons which I
have given in connection with section 8, I am
satisfied that paragraph 41(2)(c) of the Regula
tions is overly broad in the powers it confers on
staff members with respect to strip searches and it
cannot be saved by section 14 of the Commission
er's Directives which purports to preclude strip
searching of a male by a female officer except "in
urgent circumstances". For reasons which I will
elaborate below in connection with section 1 of the
Charter, the Directive is not law and therefore it
provides no legal protection for the inmate who is
subjected, or about to be subjected, to a search
contrary to section 12 of the Charter.
In reaching this conclusion I have also given
careful consideration to the decision of McDonald
J. in the Soenen 4 ° case where he held that routine
strip searches did not contravene section 12. That
case did not, however, involve cross-gender
searches. He also rejected the concept of dispro-
portionality in the application of section 12, on the
grounds that, given the presence of section 1 in the
4° Supra note 27, at pp. 222-223.
Charter, any balancing should be done within
section 1 after a prima facie violation of section 12
was established. This decision was, however, prior
to the decision of the Supreme Court of Canada in
Hunter et al. v. Southam Inc. where the Court
held that in the application of section 8 where
the qualifying word "unreasonable" a court must
first make an assessment of individual and collec
tive interests in determining whether there has
been a prima facie violation of that section before
going to any possible justification under section
1. 4 ' Similarly an assessment of proportionality
would appear to be appropriate in applying
section 12 where there are the qualifying words
"cruel and unusual".
Charter, section 15
Spearman concedes that he cannot rely on sec
tion 15 as it was not in effect at the time of the
disciplinary offence, the conviction for which he
seeks to have quashed. Conway and Weatherall
invoke section 15, however. That section provides:
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or
activity that has as its object the amelioration of conditions of
disadvantaged individuals or groups including those that are
disadvantaged because of race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
In effect their complaint is that male inmates are
subjected to strip searches in the presence of
female guards, and frisk searches and surveillance
in their cells by female officers, whereas female
inmates in federal institutions are not subjected to
cross-gender activities of the same nature. This
flows in part from the instruments governing such
procedures. As noted earlier, while subsection
41(2) of the Penitentiary Service Regulations
gives a broad power for staff members to search
any inmate where he or she "considers such action
reasonable", subsection 41(3) provides that "no
female person shall be searched pursuant to sub
41 Supra note 9, at pp. 159-160, 169-170.
section (2) except by a female person". This pro
hibits cross-gender searching of female inmates
but not of male inmates. Similarly, Commission
er's Directive 800-2-07.1 provides in section 13
that:
No female inmate shall be frisked or strip searched ... except
by a female member
but section 14 provides, with respect to strip
searches, that:
In urgent circumstances, a male inmate may be searched by a
female member.
Further, in the examination for discovery of
Kenneth Payne, Warden of Collins Bay Institu
tion, examined on behalf of the defendants, it was
admitted that at the one federal institution exclu
sively for women, the Prison for Women at Kings-
ton, male officers are confined to control point
work and perimeter security work and only female
officers work in the living area of the institution.
The situation is quite different at both Collins Bay
and Joyceville where female officers are constantly
engaged in duties within the living area of these
institutions for male inmates.
There is a continuing debate in the interpreta
tion of subsection 15 (1) of the Charter. Should
any distinction based on sex (or any other enumer
ated prohibited ground of discrimination) be
regarded as presumptively invalid? Or should the
court in each case decide whether similarly situat
ed people are being treated similarly, or apply
some other test, such as reasonability of the
distinction? 42 I do not think I have to decide that
question for present purposes. With respect to frisk
searches, because I think the interference with
privacy is trivial they will not sustain a complaint
42 Cf. e.g. Smith, Kline & French Laboratories Ltd. v.
Canada (Attorney General), [1987] 2 F.C. 359 (C.A.); Headley
v. Canada (Public Service Commission Appeal Board) supra
note 35.
under subsection 15(1). 43 With respect to strip
searching and examination of cells, the interfer
ence is not trivial and such activities constitute a
pejorative form of discrimination in treatment of
the sexes which, were it not for subsection 15(2),
would be impermissible. The evidence satisfies me,
however, that the affirmative action programme
adopted by the Government to enable women to
have adequate opportunities for employment in
federal penal institutions is properly within subsec
tion 15(2) of the Charter as a programme that
"has as its object the amelioration of conditions of
disadvantaged individuals or groups . .. disadvan
taged because of ... sex ....". This was not chal
lenged by the plaintiffs. Since, by the opening
words of subsection 15(2), any rights under sub
section 15(1) must be read subject to any such
affirmative action programme, to the extent that
this form of discrimination in cross-gender touch
ing or viewing is essential to an affirmative action
programme it does not contravene the Charter. 44 It
appears to me that as a matter of administrative
practice, the employment of women in male pris
ons, being justified under subsection 15(2) of the
Charter, incidentally carries with it the possibility
that women may have to carry out certain surveil
lance of male inmates' cells, and on occasion be
present for certain skin searches of male inmates.
Because there are no comparable affirmative
action programmes for males to be employed in
the living areas of the federal women's prison in
Kingston, the result is that women inmates there
are not subjected to cross-gender searches. Thus
there is a certain inequality flowing from an
administrative fact, but I think it is an inequality
protected by subsection 15(2) of the Charter
which precludes a complaint under subsection
15(1). This is true, however, only to the extent that
such discriminatory infringements on male privacy
are reasonably necessary to the operation of the
affirmative action programme. As I have observed
earlier, I believe that the use of female guards in
non-emergency skin searches, or in unscheduled,
43 See authorities cited supra note 35.
44 See e.g. Shewchuk v. Ricard, [1986] 4 W.W.R. 289
(B.C.C.A.), at pp. 306-307.
unannounced surveillance of cells, is not necessary
to their employment in male prisons.
Further I fail to see how an inequality in law as
adopted in subsection 41(3) of the Penitentiary
Service Regulations which provides that "no
female person shall be searched . .. except by a
female person" can be justified when there is no
comparable legal protection for males. This has no
logical connection to any affirmative action pro
gramme. It appears to me to be a denial of equal
ity under the law and the right to equal protection
of the law. It does not follow that, because special
measures may be taken to ensure employment of
females in male institutions, male officers must be
precluded from employment in female institutions
or from performing certain functions in female
institutions. Expert evidence for the defendants
and respondent was provided by Dr. Lionel BĂ©li-
veau, a prison psychiatrist from Montréal, and Dr.
Lois Shawver, a clinical psychologist from Cali-
fornia with a practice involving prisons, to the
effect that male guards, by their inherent male
ness, are more likely to exploit such situations as
cross-gender searches and surveillance than are
female guards. It appears to me that this is exactly
the kind of stereotyping which subsection 15 (1) of
the Charter was designed to preclude. No court
would long entertain an argument for example
that black persons, or Baptists, or Scotsmen are,
by an allegedly typical defect of character, more
likely as a class to exploit their fellow man, thus
justifying laws which discriminate against such
classes of persons. I see no reason why I should
entertain such an argument when directed against
the male "gender". I reject it both as an excuse
under subsection 15(1) of the Charter and as a
justification for limiting equality rights pursuant
to section 1 of the Charter.
Charter, section 28
This section provides
28. Notwithstanding anything in this Charter, the rights and
freedoms referred to in it are guaranteed equally to male and
female persons.
I have concluded that this section has no signifi
cant effect in the present case.
In a large measure I have upheld cross-gender
search practices. But to the extent that section 8 is
infringed by cross-gender strip searching or the
viewing of male inmates in their cells while the
same intrusion is not forced on female prisoners,
then section 8 rights are not being respected equal
ly with respect to male and female persons. This
violates section 28. To the extent that subsection
15(1) rights have not been validly qualified by
subsection 15(2), they too may enjoy the further
protection of section 28. But section 28 adds noth
ing here because such laws and practices are
already invalid by virtue of sections 8 and 15.
Section 28 would have a meaningful impact in this
situation only if it were sought to justify such
discrimination against men by reliance on section
1. In such case section 28 would preclude a section
1 limitation imposed on the section 8 or section 15
rights of men alone.
Charter, section 1
This section provides
1. The Canadian Charter of Rights and Freedoms guaran
tees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
The defendants and respondent have relied in part
on the Canadian Human Rights Act and the
Public Service Employment Act [R.S.C. 1970, c.
P-32], both of which prohibit discrimination in
employment in the Public Service based on, inter
alia, sex, as "limits prescribed by law" on the
rights of male inmates which are justified pursuant
to section 1.
It does not follow automatically from the provi
sions of these Acts which are to the effect that, in
principle, women should have equal rights with
men to employment in federal institutions, that
such rights are exercisable without any regard for
the rights of others. I doubt that such provisions
justify, for example, the employment of a female
attendant in a men's washroom in the Langevin
Building. Without more I am unable to see that
these Acts constitute specific limits on inmate
rights.
Apart from these statutes, the defendants and
respondent have cited as relevant "limits pre
scribed by law" the Penitentiary Service Regula
tions and the Commissioner's Directives which I
have already found to be in certain respects in
conflict with the Charter. To the extent that those
provisions were unsustainable under sections 8, 12,
and 15 they are equally unsustainable under sec
tion 1 as no further justification for them has been
demonstrated.
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 manage
ment of prison institutions. Their infringement
may give rise to disciplinary action within the
institution, but they create no legal rights or
obligations. 45 Counsel for the defendants and
respondent cited to me decisions of the Federal
Court of Appeal which he contended refuted this
jurisprudence. On examination I am satisfied these
decisions 46 do no such thing and in fact expressly
distinguish the situations dealt with there from the
leading decision of four judges of the Supreme
Court in Martineau to the effect that Commission
er's Directives are not law.
Therefore, such Directives cannot be regarded
as legally effective to limit search powers nor can
they be regarded as effective under section 1 as
45 Martineau et al. v. Matsqui Institution Inmate Discipli
nary Board, [1978] 1 S.C.R. 118, at p. 129; R. v. Institutional
Head of Beaver Creek Correctional Camp, Ex p. MacCaud,
supra note 1, at p. 380.
46 Danch v. Nadon,[1978] 2 F.C. 484 (C.A.), at pp. 505-506;
Laroche v. Commissioner of R.C.M.P. (1981), 39 N.R. 407
(F.C.A.), at p. 424.
"limits prescribed by law" for the purposes of
limiting rights guaranteed by the Charter.
Canadian Bill of Rights, paragraph 1(b)
This section declares that there exists in Canada
"without discrimination by reason of ... sex ..."
1....
(b) the right of the individual to equality before the law and
the protection of the law ....
Spearman relies on this paragraph because, as
noted above, he admits that he is not entitled to
claim under section 15 of the Charter. His counsel
has stated in his written argument that:
... the refusal by the applicant to submit to the hand fan by
the female was justified as a result of the protection of section
1(b) of the Canadian Bill of Rights.
This of course relates to the required frisk search
by a female officer to which Spearman refused to
be subjected. I take his argument to mean that the
use of female guards in male institutions for such
purposes, when male guards are not used similarly
in female institutions, denies him "equality before
the law".
With respect to the administrative programme
involving the presence of female guards in male
institutions performing functions not performed by
male guards in a female prison, I do not think this
provision assists Spearman. It is now well settled
by the jurisprudence that paragraph 1(b) of the
Canadian Bill of Rights is not contravened if there
is a "valid federal objective" to a law which makes
such distinctions." I accept that cross-gender frisk
searching which I have held not to contravene
sections 8 and 12 of the Charter may nevertheless
impose a disadvantage on male prisoners which is
not imposed on female prisoners in federal institu
tions. But I believe that result flows from the
affirmative action programme which placed
women officers in male institutions (because of the
paucity of positions for women in the Women's
47 See The Queen v. Beauregard, [1986] 2 S.C.R. 56, at pp.
85-89.
Prison) in furtherance of a "valid federal objec
tive" to provide equal opportunities for women in
employment in the federal Public Service.
As for inequalities in the law itself, Spearman
does not attack ay particular statutory provision
which creates such discrimination. It appears to
me that subsection 41(3) of the Penitentiary Ser
vice Regulations, requiring that female persons
may only be searched by female persons, does
create such sexual discrimination. But in this case
involving frisk searching it is in respect of a trivial
intrusion on privacy. I do not believe that para
graph 1(b) of the Canadian Bill of Rights is
intended to proscribe inequality of trivial intru
sions into human privacy, any more than is section
15 of the Charter.
CONCLUSIONS
Weatherall
It is clear that the strip search of Weatherall in
the presence of a female guard was wrong, tested
by the standards of both the Charter and of the
Commissioner's Directives. It is obvious from the
response to his complaint that the authorities rec
ognized that there was no emergency as contem
plated by section 14 of Commissioner's Directives
800-2-07.1 and that such an emergency was
required to justify the presence of a female officer
during the strip search of a male inmate. Counsel
for the defendants at the trial conceded that the
only justification for such circumstances would be
an emergency and did not seek to defend what
actually happened in this case.
The remedy which Weatherall seeks is not
redress with respect to the wrongful search to
which he was subjected, but instead a declaration
as to the invalidity of the relevant Regulations and
Commissioner's Directives. Counsel for the
defendants has argued .that those provisions are
valid but were simply not properly applied in
respect of Weatherall.
For the reasons which I have given above it is
my view that the relevant provisions in the Regula-
tions, paragraph 41(2)(c) and subsection 41(3),
contravene the Charter in respect of strip searches.
Paragraph 41(2)(c) gives a very broad power of
searching which in my view purports to authorize
what would amount to "unreasonable" strip
searches as contemplated by section 8 of the
Charter. The only criterion imposed for any kind
of search of an inmate by a staff member is that
such member must "consider [s] such action
reasonable to detect the presence of contraband or
to maintain the good order of an institution". It
does not require that such action be reasonably
required for these purposes but only that a staff
member "considers" it to be reasonable. While it
would not be appropriate to require warrants in
such situations the Regulations must, in the case
of strip searches at least, be more precise. As I
have indicated above, they could properly define
situations where strip searching can be done as a
matter of routine and perhaps other situations
where non-routine general strip searching of a
certain group can be done to deal with a particular
situation. Beyond that, the Regulations should
require that reasonable and probable grounds exist
for believing that a particular inmate is in posses
sion of contraband or other items endangering
security. In cases other than routine strip searches
the Regulations should specifically require either
prior approval by a senior officer or a meaningful
review by such officer of the reasons for, and
conduct of, the search after it has taken place.
Obviously other forms of safeguards and limita
tions could be devised so long as they meet the
general requirements of section 8.
Further, subsection 41(3) is invalid because,
when read with paragraph 41(2)(c), it discrimi
nates on its face between male and female inmates.
Nothing in the evidence convinces me that this is
either consistent with section 15 of the Charter nor
that it is justifiable under section 1 of the Charter.
Also for reasons stated above, I do not consider
that the Regulations can in any way be saved by
the restrictions which appear in the Commission
er's Directives. Those restrictions are, as I have
held, not adequate in their formulation, and more
importantly they are not law and therefore do not
restrict, as a matter of law upon which an inmate
can rely, the wide powers of search conferred by
paragraph 41(2)(c).
I therefore find that paragraph 41(2) (c) and
subsection 41(3) of the Penitentiary Service Regu
lations are invalid insofar as they relate to strip
searches.
I need not make any declaration as to the
Commissioner's Directives, having regard to my
conclusion that they are not law and in no way
assist the defendants.
I have also concluded that the presence of
female officers during a strip search of a male
inmate, in a non-emergency situation, contravenes
section 12 of the Charter because it is "cruel and
unusual treatment", and as the existing regulation
does not adequately limit this practice to emergen
cy situations it is invalid for this reason as well.
The plaintiff is entitled to costs. Having regard
to the possible wide-spread implications of this
decision, and the fact that it can now have little
practical impact on the plaintiff, I will leave it to
the plaintiff to move for formal judgment either on
consent or if necessary by contested motion. This
will give the parties an opportunity to consider
whether the judgment should be suspended pend
ing appeal pursuant to Rule 341A [Federal Court
Rules, C.R.C., c. 663 (as added by SOR/79-57)].
Conway
As explained earlier I have concluded that much
of what Conway complains about is trivial and not
within the purview of the Charter. This is true of
his complaint about cross-gender frisk searching
and to some extent of his complaint about female
guards patrolling the "actual living areas of male
prisoners".
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 require-
ments of the institution, the relatively minor intru
sion on personal integrity, and the benefit of pro
viding employment opportunities for women.
There was no evidence, nor is it part of Conway's
case, that the searches are conducted in an
improper fashion: it is his position that they are all
simply unlawful no matter how conducted.
With respect to the patrolling of male living
quarters by female guards, again there was no
evidence of significant intrusions on privacy other
than with respect to the surveillance of occupied
cells. The evidence satisfied me that the modesty
of male inmates was adequately protected in
respect of shower facilities and in other situations
outside their cells and that there is therefore no
need for any declaration with respect to such
matters. I have concluded, however, that in the
context of Collins Bay Penitentiary, section 8 of
the Charter protects inmates while in their cells
from unexpected cross-gender viewing by guards
for security reasons. In assessing the interests of
both the inmates and the institution I have come to
this conclusion because the evidence does not satis
fy me that it is necessary, either for security
reasons or for the effective employment of female
officers, that they view inmates in their cells where
such viewing is neither scheduled nor preceded by
at least a minimal warning.
In my view the same result flows from the
application of section 15 of the Charter. The affir
mative action programme justified under subsec
tion 15(2) which has enabled female officers to
work at Collins Bay, even though male guards are
not employed in the living areas of the Women's
Prison at Kingston, justifies, by virtue of the open
ing words of subsection 15(2), any intrusion on the
equality rights of male inmates under subsection
15(1) which are reasonably necessary to make that
programme possible. I am not satisfied that it is
reasonably necessary for female officers to make
such unannounced visual searches of the cells of
male inmates except in emergencies.
For reasons stated above, section 28 reinforces
the finding of invalidity which I have made, based
on sections 8 and 15 with respect to unannounced
cross-gender viewing of inmates in their cells.
Rights under section 8, and under subsection 15(1)
(where not validly qualified by subsection 15(2))
must be accorded equally to males and females.
I will therefore issue a declaration that at Col-
lins Bay Penitentiary it is unlawful, except in
emergencies, for female officers to view male
inmates in their cells where such viewing is neither
scheduled nor preceded by a warning or announce
ment.
Conway made no attack on any statute, regula
tion, or Commissioner's Directive which may
relate to this subject, so I make no finding with
respect to any of these. As success is divided I will
order no costs.
Spearman
The procedural setting for Spearman's com
plaint is somewhat different. It involves an
application for certiorari to quash a conviction
entered against him by the respondent Disciplinary
Tribunal of Collins Bay Penitentiary. The original
notice of motion states as grounds for certiorari
that the Chairman of the Tribunal made various
errors going to jurisdiction in failing to consider
issues of right to privacy and of sexual discrimina
tion (involving, presumably, the Charter and the
Canadian Bill of Rights). It was also alleged in
the notice of motion that there was an error of
jurisdiction because the Chairman had failed to
consider whether the applicant had really violated
a lawful order requiring him to submit to a frisk
search by a female guard.
In his written argument, counsel for Spearman
added additional grounds, in particular contending
that because Spearman pleaded "guilty with an
explanation" to the charge of a disciplinary
offence, the Chairman should have treated that as
a "not guilty" plea. Because counsel for the appli
cant had thus broadened the grounds of the attack
on the decision of the Disciplinary Tribunal, coun
sel for the Tribunal asked that the Attorney Gen
eral of Canada be added as a party and, this being
agreed to by the applicant and approved by the
Court, he proceeded to make arguments on behalf
of the Attorney General.
Dealing first with these additional grounds for
quashing, I have read the transcript of the hearing
before the Tribunal and I think such grounds are
insubstantial and vexatious. The basic fact is that
Spearman pleaded guilty to the offence. His pre
cise words were "guilty with an explanation". His
counsel now argues that that is not a proper plea
and therefore should have been treated as a "not
guilty" plea. One does not expect, in disciplinary
proceedings such as these, all the precision and
formality of a court. Words can be given their
normal meaning even though they may not be
chosen as precisely as one would require under a
formal plea to a Criminal Code [R.S.C. 1970, c.
C-34] charge. I believe the normal meaning of the
words "guilty with an explanation" would by most
people be understood to be that the speaker
acknowledged his guilt but wished to explain the
circumstances which could mitigate the sentence.
This is precisely what Spearman proceeded to do
during this hearing. I think it was reasonable for
the Chairman of the Tribunal to assume that the
applicant, who presumably has had at least one
previous experience in court, meant what he said
when he employed the word "guilty". The record
shows that the Chairman listened to the appli
cant's concerns about cross-gender frisk searches
and explained to him the proper way to seek to
have this practice changed.
With respect to the defences—right of privacy
and the right not to be discriminated against—
which the applicant says should have been con
sidered, I have found that in respect of frisk
searching these "defences" have no validity. I have
concluded above that any intrusion on privacy, or
any inequality resulting as between the sexes,
resulting from frisk searches are trivial and do not
invalidate the practice or the Regulations under
which it is carried out. Therefore the Chairman of
the Tribunal did not exceed his jurisdiction in
failing to take such matters into account. There
was no other basis for impugning the validity of
the order which Spearman disobeyed.
As I have found that there was no jurisdictional
impediment based on the Charter or the Canadian
Bill of Rights to the Chairman dealing with this
matter, and as the applicant pleaded guilty to the
charge, there is nothing further that can or should
be done by way of certiorari. It is arguable that a
charge might better have been laid for failure to
obey a lawful order, rather than one for disobeying
a regulation or rule. The applicant not having
taken that objection at the hearing, I would not
exercise my discretion in the matter of certiorari
to quash the conviction on this ground. The plea of
guilty also, in my view, wipes out any basis for the
applicant now asserting that he did not think any
order had been issued by the guard—if indeed,
that is what he is now asserting.
The application will therefore be dismissed with
costs.
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