T-3801-80
William Faulder Robertson (Plaintiff)
v.
Donald Yeomans, in his capacity as Commissioner
of Corrections, and John Dowsett, in his capacity
as Institutional Head of Kent Institution and the
Canadian Corrections Service and its members
(Defendants)
Trial Division, Gibson J.—New Westminster,
March 3; Vancouver, March 6, 1981.
Penitentiaries — Plaintiff an inmate at maximum security
penitentiary — Orders by Institutional Head to skin frisk all
inmates on completion of open visits — Whether orders incon
sistent with s. 41(2) of Penitentiary Service Regulations and
therefore unlawful — Whether doing skin frisks on a regular
and routine basis is unlawful in the absence of reasonable
grounds for suspecting contraband on the part of specific
inmates such as plaintiff — Whether s. 41(2) is ultra vires —
Penitentiary Service Regulations, C.R.C. 1978, Vol. XIII, c.
1251, s. 41(2) as amended by SOR/80-462.
The plaintiff, an inmate at Kent Institution, a maximum
security penitentiary, seeks injunctive and declaratory relief
against the defendants with respect to orders issued by the
Institutional Head of Kent to skin frisk all inmates on comple
tion of open visits. Plaintiff submits that those orders are
inconsistent with section 41(2) of the Penitentiary Service
Regulations (as it read prior to June 20, 1980 when amended
section 41(2) came into force, and as it now reads) and
therefore are unlawful; that doing skin frisks on a regular and
routine basis is unlawful in the absence of reasonable grounds
on the part of the member of the Penitentiary Service to
suspect contraband in relation to specific inmates such as
plaintiff; and finally that if section 41(2) is authority to issue
such orders, it is then ultra vires.
Held, the action is dismissed. Since June 20, 1980, skin frisks
of inmates at Kent Institution after open visits are within the
Institutional Head's authority as a member of the Penitentiary
Service and in accordance with section 41(2) of the Penitentia
ry Service Regulations. The Institutional Head ordered those
skin frisks on a routine and universal basis because in his
opinion, on a continuing basis, there are reasonable and prob
able grounds for believing, and it is his belief, that contraband
will enter Kent Institution after open visits if no preventative
measure is taken. His opinion is that of an experienced and
competent administrator with respect to security matters gener
ally and in particular in maximum security federal penitentia
ries. It follows therefore that section 41(2) is not ultra vires.
Finally, any declaration with respect to what took place prior to
June 20, 1980 would be of no material importance.
Gunn v. Yeomans [1981] 2 F.C. 99, considered.
ACTION.
COUNSEL:
John W. Conroy for plaintiff.
W. B. Scarth for defendants.
SOLICITORS:
John W. Conroy, Mission, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
GIBSON J.: William Faulder Robertson is an
inmate at Kent Institution, a federal maximum
security penitentiary located in British Columbia.
He is serving a 23-year sentence for conspiracy to
traffic in cocaine.
Robertson sues Donald Yeomans, the Commis
sioner of Corrections (appointed under section 4 of
the Penitentiary Act, R.S.C. 1970, c. P-6, as
amended) and John Dowsett, the Warden and
Institutional Head of Kent Institution. Robertson
claims certain injunctive and declaratory relief,
namely:
a) an interlocutory injunction or relief in the nature thereof
restraining the Defendants from requiring the Plaintiff on
being searched, to remove all of his clothing and to bend over
to enable the Defendants or any one of them to visually
inspect the area between the Plaintiff's buttocks on a routine
basis except in accordance with the provisions of Penitentiary
Service Regulation 41(2)(c) when the Defendants or any one
of them has reason to believe that the Plaintiff is in the
possession of contraband in that area of his anatomy or the
Defendants or any one of them have reason to believe that it
is necessary to search that area of the Plaintiff's anatomy to
maintain the good order of the institution, pending the ruling
of this Honourable Court on the merits of this action;
(This claim for interlocutory relief was dismissed
by Collier J. on 20 August 1980.)
b) a declaration of this Honourable Court that any Commis
sioner's Directives or other subordinate orders inconsistent
with the provisions of Regulation 41(2) of the Penitentiary
Service Regulations are unlawful to the extent of such
inconsistency;
c) a declaration of this Honourable Court that any searches
of the Plaintiff's person and any orders requiring searches of
the Plaintiff's person on or before June 19th, 1980 were
unlawful to the extent that they were not in compliance with
the provisions of Penitentiary Service Regulation 41(2) in
force up to that time;
d) a declaration of this Honourable Court that Penitentiary
Service Regulation 41(2)(c) that came into force on June
19th, 1980 continues to require the member, before search
ing, to have reason to believe that the Plaintiff is in posses
sion of contraband in order for such action to be reasonable
to detect the presence of contraband or reason to believe that
it is necessary to conduct such a search in the circumstances
of each case in relation to the Plaintiff for the good order of
the institution;
e) a declaration of this Honourable Court that any searches
of the Plaintiff's person or orders requiring searches of the
Plaintiff's person since June 19th, 1980 are or were unlawful
to the extent that such searches were conducted or ordered to
be conducted on a regular, routine and arbitrary basis in the
absence of specific reasons therefore [sic] in relation to the
Plaintiff as an individual;
f) a permanent injunction restraining the Defendants, their
servants, agents or employees from conducting by order or
otherwise any further searches of the Plaintiff's person
except in accordance with Regulation 41(2)(c) of the Peni
tentiary Service Regulations as interpreted by this Honour
able Court;
A maximum security penitentiary, which Kent
Institution has been designated, is defined in
Canadian Penitentiary Service Divisional Instruc
tion No. 1024 of August 8, 1978 at paragraph
5a(1) as follows:
5....
a. Security Definitions
The security requirements for inmates are defined as
follows:
(1) Maximum Security:
for the inmate who is likely to make active efforts to
escape and, if he is at large, is likely to be dangerous to
the public, and for the hostile and violent type of
offender who requires close supervision at all times.
Penitentiary Service Regulation 41(2) [C.R.C.
1978, Vol. XIII, c. 1251] enacted pursuant to the
enabling powers of the Governor in Council under
section 29 of the Penitentiary Act (supra) until the
19th June 1980 read as follows:
41....
(2) Where the institutional head suspects, on reasonable
grounds, that an officer, employee, inmate or visitor to the
institution is in possession of contraband he may order that
person to be searched, but no such person, who is female, shall
be searched except by a female person.
By amendment P.C. 1980-1638 [SOR/80-462], 19
June 1980, in force 20 June 1980 and to date,
section 41(2) now reads:
41....
(2) Subject to subsection (3), any member may search
(a) any visitor, where there is reason to believe that the
visitor has contraband in his possession, and if the visitor
refuses to be searched he shall be refused admission to or
escorted from the institution;
(b) any other member or members, where the institutional
head has reason to believe that a member or members has or
have contraband in his or their possession;
(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; and
(d) any vehicle on institution property where there is reason
to believe that such a search is necessary in order to detect
the presence of contraband or to maintain good order of the
institution.
Standing Order 7:21 of Kent Institution Stand
ing Orders in force at all material times reads as
follows:
7:21 SEARCHING OF INMATES
1. The searching of inmates shall be the responsibility of the
Assistant Director (Security), who shall ensure that searches
are properly carried out and shall issue instructions to his staff
regarding procedures to ensure that due regard to decency and
self respect is observed.
2. Inmates may be searched at any time by an Employee who
has reason to suspect that contraband is being carried within or
into the Institution.
3. It is the duty of the Employee in charge of shops or work
gangs to search all inmates on completion of work periods,
when inmates are leaving work areas or shops, before leaving or
entering the prison compound and when leaving or returning to
Living Units.
4. Frisking of inmates shall be in one of the forms outlined
depending on thoroughness required:
(a) Line Frisk
The clothed inmate shall be searched by hand from cap to
shoes, down the body front and rear and under the arms;
checking the waistbands, pockets, cuffs and inseams and
outseams of trousers, pockets in jackets and shirts, and socks
and the tops of boots.
(b) Security or Skin Frisk
Shall consist of undressing the inmate in privacy where a
thorough examination of body and body cavities and a
detailed examination of all clothing and accessories can be
made. Such examinations of the body cavities shall be con
ducted by the Institutional Physician or a Health Care
Officer.
5. Thorough examination of body and body cavities shall only
be completed on those inmates being admitted to dissociation/
segregation or when there is sufficient suspicion to warrant
same; or as directed by the Director, Assistant Director (Secu-
rity) or the Employee I/C of the Institution.
In addition, by memorandum dated 14 August
1980 it was prescribed:
Searching of Inmates:
1. In addition to Standing Order 7:21, paragraph 3, all inmates
are to be body searched on completion of visits.
In evidence Robertson and his wife, among
other things, said skin frisks are not necessary and
are useless and degrading. And of the submissions
of counsel for Robertson, the submission is that
orders to skin frisk are inconsistent with section
41(2) of the Penitentiary Service Regulations and
therefore unlawful; alternatively, the submission is
that if they are consistent, doing skin frisks on a
routine and universal basis is unlawful because of
the lack of reasonable and probable grounds on the
part of the member of the Penitentiary Service
authorizing such skin frisks for believing that con
traband would enter the penitentiary through spe
cific inmates such as Robertson; and further, alter
natively the submission is that if section 41(2)
purports to be authority to enable orders to be
issued such as here, namely that skin frisks be
done on a routine and universal basis without such
reasonable and probable grounds, section 41(2) is
ultra vires.
John Dowsett, Warden and Institutional Head
of Kent Institution, (formerly Deputy Regional
Director of Security in the Penitentiary Service
from July 1973 to April 1974 and Director of
maximum security penitentiary Millhaven Institu
tion from May 1974 to 1977) in evidence said that
there are 160 inmates in Kent at the moment, 10
to 12 of whom have been convicted of capital
murder, 1 / 2 of whom are serving sentences for life,
'/s of whom were convicted for various drug
offences and 30 to 32 of whom have been involved
in escapes or escape attempts.
Dowsett said further that prior to the opening of
Kent Institution he caused Kent Standing Orders
to be issued and specifically directed that there be
skin frisks of inmates after open visits. He said he
decided to so order because he was of opinion that
this was one way to control some of the introduc
tion of contraband into the Institution, that is
contraband in the form of hardware, knives,
ammunition, drugs, explosives, money, etc. Dow-
sett said he formed his opinion as to the efficacy of
skin frisks based on his training, knowledge and
experience. His opinion is that skin frisks on a
universal and routine basis after open visits have
been effective, by and large, in curtailing, and in
many cases preventing, the entry of contraband
into penitentiaries generally, and particularly in
penitentiaries where he has been Warden and
Institutional Head and further based on the practi
cal experience at Kent Institution since it opened,
skin frisks have produced similar successful results
in that Institution. Dowsett also said that in his
opinion, based on an amalgam of knowledge
derived for example from instructions he has
received, information he has obtained from others,
and what he has read and experienced, after open
visits there is always reasonable and probable
grounds for believing that contraband will enter an
institution such as Kent Institution, by transfer
from the visitor to inmate unless some preventative
measures are taken and that skin frisks is one of
such measures; and that in deciding what inmates
to skin frisk, it is, from a practicable point of view,
impossible to differentiate among inmates as to
who might be a probable transferee at any time so
as to be selective as to which inmate or inmates
should be skin frisked.
The open visits at Kent Institution take place in
a room (see Exhibit 3) which can hold up to 10
inmates, plus 2 visiting adults for each inmate,
plus children in respect of which no limit in
number is placed by the authorities. The visits last
for 1' hours. Personal contact between inmate
and visitor is permitted. There is an officer, or
officers, monitoring the visits behind a glassed
area but they have other duties at the time besides
monitoring.
The evidence is that skin frisks were ordered to
be done and are done on a routine and universal
basis at Kent Institution after all open visits; that
the author of such requirement is the Warden,
John Dowsett, through Standing Orders and Spe
cific Orders and that an inmate may have an open
visit with a visitor only if he consents to a skin
frisk after such open visit.
An inmate has the option, however, if he does
not wish to be subject to a skin frisk, to have a visit
with a visitor in another way. The inmate can have
a visual one with a glass partition separating him
from the visitor and with communication between
them accomplished by telephone.
According to the evidence of Dowsett and the
two other Kent Institution officers, Robertson has
been a satisfactory inmate during his incarceration
and has not given any trouble to the authorities.
In an action in this Court, Gunn v. Yeomans
[1981] 2 F.C. 99, Mr. Justice Cattanach, in his
judgment dated 11 June 1980, decided an issue
and a matter that is much similar on its facts as in
this case. Mr. Justice Cattanach's decision was
made when section 41(2) of the Penitentiary Ser
vice Regulations read as it did, prior to the 20th
June 1980 (see supra). Mr. Justice Cattanach in
that case held that the Standing Orders of the
Warden of Matsqui Institution and other orders of
the Warden and all other orders of all members of
the Penitentiary Service, all of which were subor
dinate to the provisions of section 41(2) of the
Penitentiary Service Regulations as it then read,
were not lawful to the extent of their inconsistency
with section 41(2); and further that all searches of
the plaintiff's person in that case could only be
made in accordance with section 41(2) of the
Penitentiary Service Regulations as it then read.
Section 41(2) of the Penitentiary Service Regu
lations as it now reads (Exhibit 6) apparently was
issued and enacted having in mind this decision of
Mr. Justice Cattanach.
Relevant to this case also are the words of Mr.
Justice Cattanach in that case regarding the
efficacy of skin frisking in the light of its declared
purpose [at pages 107-108]:
The plaintiff in his testimony expressed the belief that skin
frisking was deliberately imposed to degrade and humiliate
inmates and not for any other purpose. If that were so the
Standing Order directed to be rigidly enforced by Mr. Caros
would be unlawful as effecting an ulterior purpose.
It is not my function to substitute my opinion for that of the
institutional head as to the most effective methods to ensure the
safety and security of the institution for which he was respon
sible. Skin frisking is an accepted procedure throughout the
Penitentiary Service and I must, therefore, accept the premise
that it is the most effective method of search for contraband
not required to be conducted by medical personnel and accept
ing that premise, as I have, it follows that it was not invoked for
any ulterior purpose.
With this view I agree.
In the result, therefore, based on the whole of
the evidence and especially the evidence of John
Dowsett, Warden and Institutional Head of Kent
Institution, an experienced and competent
administrator with respect to security matters gen
erally and in particular in maximum security fed
eral penitentiaries, I am of opinion that since 20
June- 1980 skin frisks of inmates at Kent Institu
tion after open visits are lawful.
Warden Dowsett ordered these skin frisks on a
routine and universal basis because in his opinion
on a continuing basis there are reasonable and
probable grounds for believing, and it is his belief,
that contraband will enter Kent Institution after
open visits if no preventative measure or measures
are taken. As a means of preventing or minimizing
such entering of contraband he ordered that skin
frisks be done. His opinion is that of an expert. His
opinion is based on an amalgam of knowledge
arising, among other ways, out of information as
to security matters and methods he has obtained
by his reading, his formal training, his conversa
tions with security people in Canada and in other
countries and his experience as head of two max
imum security penitentiaries in Canada since
1974. His orders for skin frisks are within his
authority as a member of the Penitentiary Service
and in accordance with section 41(2) of the Peni
tentiary Service Regulations.
Further, it follows that there is no basis for the
submission that section 41(2) is ultra vires based
on the point of lack of reasonable and probable
grounds for believing on the part of a member of
the Penitentiary Service at the time skin frisks are
ordered that such skin searches are necessary to
detect the presence of contraband or to maintain
the good order of Kent Institution.
In regard to part of the relief claimed, any
declaration with respect to what took place prior to
20 June 1980 (the date when amended section
41(2) of the Penitentiary Service Regulations
came into force) would be of no material
importance.
Accordingly this action is dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.