Judgments

Decision Information

Decision Content

A-724-87
Attorney General of Canada, Solicitor General of Canada, and Commissioner of Corrections (Appellant) (Defendants)
v.
Garnet Clarence Weatherall (Respondent) (Plain- tiff)
INDEXED AS: WEATHERALL V. CANADA (ATTORNEY GENERAL)
(CA.)
Court of Appeal, Mahoney, Stone and Lacombe JJ.—Toronto, May 30 and 31; Ottawa, June 28, 1988.
Penitentiaries — Convict strip searched for contraband with female guard as witness — Seeking declaration rights under Charter s. 8 infringed — Trial Judge declaring Penitentiary Service Regulations, s. 41(2)(c), (permitting strip searches of any inmate by any member of Service) inoperative in so far as authorizes strip searching in general — S. 41(2)(c) inoperative in so far as authorizes strip searches of male inmates in presence of female guard in non-emergency situation, as con trary to Charter, s. 8 — Commissioner's Directive, s. 14 not reasonable limit prescribed by law — S. 41(2)(c) not reason able standing alone as fails to specify criteria for searching inmates — Additional controls required in legislation but peculiarities of prison life rendering difficult definition of emergency situations.
Constitutional law — Charter of Rights — Criminal process — Search or seizure — Penitentiary Service Regulations, s. 41(2)(c), permitting any member of Service to search any inmate inconsistent with Charter, s. 8 to extent authorizing strip searching male inmates in presence of female guard in non-emergency situations — Commissioner's Directive, s. 14 not qualifying s. 41(2)(c) as not law — S. 41(2)(c) not reason able as fails to specify criteria for control of searches — Controls in Regulations desirable but peculiarities of prison life presenting difficulties in developing precise, yet flexible, definition of emergency situation.
Constitutional law — Charter of Rights — Limitation clause — Penitentiary Service Regulations, s. 41(2)(c) permit ting search of any inmate by any member of Service when considered reasonable — Commissioner's Directive, s. 14 limiting strip searches of male inmates by female guards to urgent circumstances not reasonable limit prescribed "by law" within Charter, s. 1 — Martineau et al. v. Matsqui Institution
Inmate Disciplinary Board, wherein Commissioner's Directive held not law, binding though Penitentiary Act, s. 29(3) author izing Commissioner to issue such directives — Directives not required to go through legislative process — Not intended to carry serious legal import of Regulations — S. 41(2)(c) not "reasonable" as failed to set down specific criteria for search ing inmates — Additional controls in Regulations desirable.
Practice — Pleadings — Convict strip searched in presence of female guard — Seeking declaration s. 8 Charter rights violated — Judge declaring Regulations permitting strip searches of any inmate by any member of Service inoperative — Judge exceeding issue defined in pleadings — Purpose of pleadings to define issues, give notice of case to be met — Appellant unaware Charter s. 8 relied on for general attack on validity of Regulations — Neither adducing evidence nor presenting argument — Pleadings put in issue only validity of provisions authorizing strip searches of male convicts in pres ence of female guards — Judgment varied accordingly.
This was an appeal from a trial judgment declaring para graph 41(2)(c) of the Penitentiary Service Regulations inoper ative. That paragraph provided that any member of the Peni tentiary Service may search any inmate where such action is considered reasonable to detect the presence of contraband or to maintain the good order of an institution. Paragraph 14 of the Commissioner's Directive provided that a male inmate may be searched by a female member in urgent circumstances. In the case at bar, the facts were that as the respondent, an inmate at the Joyceville Institution, was leaving the visiting area, he and another convict were each strip searched by a male guard, while a female guard served as a witness. The Trial Judge held that paragraph 41(2)(c) of the Regulations was inoperative as inconsistent with Charter, section 8, in so far as it authorized any strip searching of penitentiary inmates. The appellant argued that (1) the Trial Judge erred in that the issue raised by the pleadings was limited to the strip search of a male inmate by or in the presence of a female guard. The judgment was therefore rendered on an issue which the appellant had no opportunity of meeting by other evidence or argument; (2) the Trial Judge erred in concluding that paragraph 41(2)(c) of the Regulations and paragraph 14 of the Commissioner's Directive were inconsistent with section 8 of the Charter to the extent that, together, they purported to authorize the strip searching of a male inmate by or in the presence of a female guard in emergency situations; (3) the Trial Judge erred in concluding that the Commissioner's Directive did not have the force of law, and that it did not qualify the general search power in para graph 41(2)(c) of the Regulations. The appellant argued that paragraph 14 of the Commissioner's Directive represented a reasonable limit prescribed by law within section 1 of the Charter. It was argued that Martineau et al. v. Matsqui
Institution Inmate Disciplinary Board did not apply because it dealt with whether a decision was one required "by law" to be made on a judicial or quasi-judicial basis within section 28 of the Federal Court Act. Furthermore, it was urged that the limit in paragraph 14 was "prescribed by law" because subsection 29(3) of the Penitentiary Act specifically authorized the Com missioner to make rules, known as directives, for the good government of penitentiaries; (4) the Trial Judge erred in concluding that paragraph 14 was not a "reasonable" limit prescribed by law within section 1 of the Charter.
Held, the appeal should be allowed in part.
The issue raised in the pleadings was that the presence of a female guard denied the plaintiff (respondent) a right to be secure against unreasonable search and seizure guaranteed by the Charter, section 8 and that accordingly paragraph 41(2)(c) of the Regulations and paragraph 14 of the Commissioner's Directive, being inconsistent with the right so guaranteed, are, to the extent of the inconsistency, of no force and effect. The prayer for relief must be read as referring to the material facts, or the strip search that occurred, not to strip searches in general. Pleadings intended to define the issues and to give notice of the case to be met. The appellant was clearly prejud iced by the pleadings which did not put the strip searching of inmates in general in issue. The possible application of Charter, section 8 could only be addressed in the context of the plead- ings which only put in issue the validity of those paragraphs to the extent that they authorized strip searching of male inmates in the presence of a female guard.
As to the second issue, the Trial Judge was forced to examine paragraph 41(2)(c) of the Regulations from a reasonability standpoint alone, because he had found that paragraph 14 of the Commissioner's Directive could not qualify paragraph 41(2)(c) because the former was not "law".
Thus, regarding the third issue, the Trial Judge correctly followed the Matsqui case, wherein it was held that a Commis sioner's Directive was not law, even though the Directive's adoption was provided for in the statute. The Directive came into being without going through any legislative process, and may be altered or varied without such process. Directives are mere "directions as to the manner ... duties" are to be carried out. From the language used to authorize their adoption, when compared with the regulation-making power in subsection 29(1) of the Act, it is apparent that directives were not intended to carry anything like the serious legal import of the Regulations.
Returning to the second issue, nothing on the face of para graph 41(2)(c) limits the strip searching of male inmates by or in the presence of a female guard to emergency situations. The Trial Judge found it unreasonable because it failed to set down specific criteria for searching inmates. He concluded that addi tional controls were required in the Regulations, be it a reason able and probable belief, or prior authorization. The peculiari ties of prison life and the special problems they present to prison administrators discharging their responsibility for "safe- ty and security" of the institution must not be overlooked. These administrators are entitled to some deference in adopting and applying policies and practices required for the mainte nance of order and security, and for the safety and protection of inmates and staff. The authority contained in paragraph 41(2)(c) is limited to situations where a member considers that the action is "reasonable". Such searches must also be bona fide. They cannot be used to intimidate, humiliate or harass inmates or to inflict punishment. A meaningful post-review process should also be available so that any abuses may be detected at an early opportunity.
As to whether and, if so, how "emergency situations" may be defined in the Regulations, having regard to section 8 of the Charter, the difficulty of developing a definition of emergency situations based upon specific criteria that would be sufficiently clear and precise and yet be workable was noted. To insist upon a definition of emergency situations that was limited to specific types (such as riots) would be to inject the Court's judgment into the sphere of responsibility properly vested in the institu tional head. Though situations of that kind should be specified, the definition should also allow for unforeseen situations where strip searching of a male inmate by or in the presence of a female guard requires immediate implementation.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
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(1). Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28. Penitentiary Act, S.C. 1960-61, c. 53, s. 29(3). Penitentiary Act, R.S.C. 1970, c. P-6, s. 29(1) (as am. by
S.C. 1976-77, c. 43, s. 44), (3).
Penitentiary Service Regulations, C.R.C., c. 1251, ss. 5, 41(2)(c) (as am. by SOR/80-462, s. 1), (3) (as added idem).
U.S. Constitution, Amend. IV.
CASES JUDICIALLY CONSIDERED
APPLIED:
Esso Petroleum Co. Ltd. v. Southport Corporation,
[19561 A.C. 218 (H.L.); Grummett v. Rushen, 779 1.2d 491 (9th Cir. 1985); Martineau et al. v. Matsqui Institu tion Inmate Disciplinary Board, [1978] I S.C.R. 118.
DISTINGUISHED:
Douglas/Kwantlen Faculty Assn. v. Douglas College (1988), 21 B.C.L.R. (2d) 175 (C.A.).
REVERSED:
Weatherall v. Canada (Attorney General), [1988] 1 F.C. 369; (1987), 59 C.R. (3d) 247; (1987), 11 F.T.R. 279 (T.D.).
CONSIDERED:
R. v. Therens et al., [1985] 1 S.C.R. 613; Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Rao (1984), 46 O.R. (2d) 80 (C.A.); Bell v. Wolfish, 441 U.S. 520 (1979); R. v. J.M.G. (1986), 56 O.R. (2d) 705 (C.A.); Howard v. Stony Mountain Institution, [1984] 2 F.C. 642 (C.A.); Lanza v. New York, 370 U.S. 139 (1962); Sterling v. Cupp, 625 P.2d 123 (Or. 1981).
REFERRED TO:
R. v. Collins, [1987] 1 S.C.R. 265; Re Maltby et al. and Attorney-General of Saskatchewan et al. (1982), 143 D.L.R. (3d) 649 (Sask. Q.B.); affd (1984), 13 C.C.C. (3d) 308 (Sask. C.A.); Soenen v. Director of Edmonton Remand Centre, Attorney General of Alberta and Solici tor General of Alberta (1984), 48 A.R. 31 (Q.B.).
AUTHORS CITED
Williston, W. B. and Rolls, R. J. The Law of Civil Procedure, Vol. 2, Toronto: Butterworths, 1970.
COUNSEL:
J. Grant Sinclair, Q.C. and Michael Sherman
for appellant (defendants).
Ronald R. Price, Q.C. for respondent
(plaintiff).
•
SOLICITORS:
Deputy Attorney General of Canada for appellant (defendants).
Faculty of Law, Queen's University, Kings- ton, Ontario, for respondent (plaintiff).
The following are the reasons for judgment rendered in English by
STONE J.: This is an appeal from a judgment of Strayer J. in the Trial Divison rendered on August 19, 1987' whereby he declared paragraph 41(2)(c) of the Penitentiary Service Regulations, C.R.C., c. 1251 [as am. by SOR/80-462, s. 1] to be
(i) inoperative as being inconsistent with the right guaranteed in section 8 of the Canadian Charter of Rights and Freeedoms, insofar as it authorizes the strip searching of penitentiary inmates;
(ii) inoperative and of no force and effect as being inconsistent with the right guaranteed in section 12 of the Charter, insofar as it authorizes the strip searching of a male penitentiary inmate by or in the presence of a female guard in a non-emer gency situation.
and section 41(3) [as added idem] of the same Regulations to be inoperative and of no force or effect as being inconsistent with a right guaranteed in subsection 15(1) of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)]. An attack on paragraph 41(2)(c) and on paragraph 14 of the Commissioner's Directive based upon section 7 of the Charter, was rejected.
Sections 7, 8 and 12 and subsection 15(1) of the Charter read:
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.
8. Everyone has the right to be secure against unreasonable search or seizure.
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
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.
Paragraph 41(2) (c) of the Regulations reads:
41....
(2) Subject to subsection (3), any member may search
' [1988] 1 F.C. 369; (1987), 59 C.R. (3d) 247; (1987), 11 F.T.R. 279 (T.D.).
(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
The provisions of paragraph 14 of the Commis sioner's Directive are:
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.
The issues raised on this appeal emerge out of an incident which occurred on June 13, 1985 while the respondent was an inmate of the Joyceville Institution serving a long-term sentence. He had been just paid a visit by his wife when, upon leaving the visit area with another inmate, he was ordered to submit to a strip search 2 in an adjoining room. The purpose of the search was to look for contraband. What then occurred is described by the Trial Judge, at pages 377 F.C.; 253-254 C.R.; 284-285 F.T.R. of his reasons for judgment:
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 occa sion was called as a witness by the defendants.) 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 examina tion 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.
2 This is defined in paragraph 7 of Commissioner's Directive 800-2-07.1 adopted pursuant to subsection 29(3) of the Peni tentiary Act, S.C. 1960-61, c. 53 as amended, as
... a procedure which requires a person to undress complete ly and be searched visually but not touched except for head hair. In addition, all clothing and possessions are searched.
A less serious procedure is defined therein as a "frisk search", while a more serious kind, called a "body cavity search", requires that a person, while undressed, "... be searched by hand, including an examination of all body openings".
In a complaint lodged with the Institution, the respondent asserted that the search was contrary to paragraph 14 of the Commissioner's Dirèctive permitting a female guard to conduct the search in "urgent circumstances". In due course, the com plaint was upheld on the basis that no emergency existed at the time the strip search was carried out. However, a grievance lodged by the respondent with the head of the Institution in July, 1985 was rejected on the ground that it could not be accept ed because the complaint had been upheld.
As we shall see, the appellant limits the attack on the judgment below to the unqualified declara tion made by the learned Trial Judge that para graph 41(2)(c) of the Regulations is inoperative and of no force and effect, being inconsistent with the right guaranteed by section 8 of the Charter, in so far as it purports to authorize any strip searching of penitentiary inmates. On the other hand, both the declarations of inconsistency of paragraph 41(2)(c) with subsection 15(1) of the Charter, and of subsection 41(3) of the Regula tions with section 12 of the Charter, are limited by the judgment to the incident complained of, namely, the strip searching of the respondent in the presence of a female guard. The operative paragraphs of the judgment read:
1. IT IS ADJUDGED AND DECLARED THAT paragraph 41(2)(c) of the Penitentiary Service Regulations, C.R.C. 1978, c. 1251 insofar as it purports to authorize the strip search of penitentia ry inmates is, in its present form, inconsistent with rights guaranteed to penitentiary inmates by section 8 of the Canadi- an Charter of Rights and Freedoms and is for the purpose of authorizing any such strip searches, inoperative and of no force or effect.
2. IT IS FURTHER ADJUDGED AND DECLARED THAT subsection 41(3) of the Penitentiary Service Regulations, insofar as it discriminates between male and female inmates with respect to strip searches, is inconsistent with subsection 15(1) of the Canadian Charter of Rights and Freedoms, and to that extent inoperative and of no force or effect.
3. IT IS FURTHER ADJUDGED AND DECLARED THAT subsection 41(2)(c) of the Penitentiary Service Regulations, insofar as it purports to authorize a strip search of ,a male penitentiary inmate by or in the presence of a female correctional officer in a non emergency situation, is to that extent inconsistent with section 12 of the Canadian Charter of Rights and Freedoms and is inoperative and of no force or effect.
(Appeal Book, pages 12-13)
The appellant's objections are that the Trial Judge erred:
(1) in declaring paragraph 41(2)(c) of the Regu lations to be inconsistent with section 8 of the Charter and, therefore, of no force and effect for the purpose of authorizing a stirp search of any penitentiary inmate when the issue raised by the pleadings and the material facts was limited to the question of a strip search of a male inmate by or in the presence of a female guard (sometimes referred to as "a cross-gender strip search");
(2) that in reaching the conclusion in (1), the learned Judge departed substantially from the pleadings and, accordingly, that the judgment was rendered on an issue which had not been pleaded and which the appellant had no opportunity of meeting by other evidence or argument;
(3) in concluding that paragraph 41(2)(c) of the Regulations and paragraph 14 of the Commission er's Directive 800-2-07.1 are inconsistent with sec tion 8 of the Charter to the extent that, read together, they purport to authorize a strip search of a male inmate by or in the presence of a female guard in an emergency;
(4) in concluding that paragraph 14 of the Com missioner's Directive 800-2-07.1 does not have the force of law and, accordingly, that it does not qualify, the general search power contained in paragraph 41(2)(c) of the Regulations;
(5) in concluding that paragraph 14 of Commis sioner's Directive 800-2-07.1 does not constitute a reasonable limit prescribed by law within section 1 of the Charter.
The Section 8 Charter Issue as Pleaded
The first two issues may be conveniently dis cussed together. The essential complaint here is that, in declaring paragraph 41(2) (c) of the Regu lations to be inoperative and of no force and effect, being inconsistent with a right guaranteed by sec tion 8 of the Charter, the learned Judge went
beyond the issue as defined by the pleadings. At pages 415-416 F.C. of his reasons for judgment, he summarized the position in this way:
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 recog nized that there was no emergency as contemplated 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 Regula tions and Commissioner's Directives. Counsel for the defen dants 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 Regulations, 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 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.
Our attention was drawn to paragraphs 7, 8, 9, 10 and 16 of the statement of claim in connection with these first two grounds of appeal. They read:
7. On or about the 13th day of June, 1985, at the said Joyceville Institution, the Plaintiff, and another inmate, one Benjamin Greco, were strip searched by two male guards, Dixon and Hasan, in the presence of one female guard, Hlywa.
8. The strip search referred to in paragraph 7 hereof was proceeded with notwithstanding the express prior request by the Plaintiff that the female guard, Hlywa, leave before he was required to remove his clothes.
9. The strip search of the Plaintiff in the presence of a female guard was conducted pursuant to the purported authority of s. 41(2)(c) of the Penitentiary Service Regulations, C.R.C. 1978, c. 1251, and paragraph 14 of the Directives of the Commission er of Corrections, C.D. 800-2-07.1
10. Following his naked exposure to the female guard, Hlywa, the Plaintiff experienced a sense of humiliation, indignity, frustration and emotional upset.
16. The Plaintiff contends that the presence of a female guard during a strip search procedure denies him, as a male inmate, the right to be secure against unreasonable search or seizure. The Plaintiff pleads Section 8 of the Canadian Charter of Rights and Freedoms.
(Appeal Book, pp. 2, 3, 4)
The appellant, by the defence, put each of these allegations in issue by a general denial contained in paragraph 4 thereof, and in paragraphs 8 and 9 pleaded:
8. He further says that the practice of Correctional Service Canada presently and at all material times prohibits strip searches of an inmate by a guard of the opposite sex except in emergency situations.
9. He further pleads and relies on the Canadian Charter of Rights, Constitution Act, 1982 Part I, S.C. 1980-81-82-83, v. 1, pp. v-xiii, particularly sections 1 and 15 thereto and the Com missioner's Directive 800-2-07.1.
I have no doubt that the issue as defined by the pleadings in relation to section 8 of the Charter, was that the presence of a female guard during the strip search of the respondent on June 13, 1985 denied him a right to be secure against unreason able search and seizure guaranteed by that section and, accordingly, that paragraph 41(2)(c) of the Regulations and paragraph 14 of the Commission er's Directive, being inconsistent with the right so guaranteed, are, to the extent of the inconsistency, of no force and effect. I do not think that the prayer for relief set out in paragraph 22(a) of the statement of claim
22....
WHEREFOR THE PLAINTIFF PRAYS:
(a) A declaration of this Honourable Court that Section 41(2)(c) of the Penitentiary Service Regulations, C.R.C. 1978, c. 1251, and paragraph 14 of the Directives of the Commissioner of Corrections, C.D. 800-2-07.1, are inconsist ent with rights guaranteed to the Plaintiff by Sections 7, 8, 12, and 15 of the Canadian Charter of Rights and Freedoms, or any of them, and are to the extent of the inconsistency as determined by the Court, of no force or effect;
(Appeal Book, page 6)
can be read otherwise than as referring to the material facts relied upon in the above-recited paragraphs of the statement of claim. It is clearly limited to allegations of fact based upon the strip search that occurred on June 13, 1985. It does not
speak to the constitutional validity of paragraph 41(2)(c) in so far as it purports to authorize strip searches in general. No facts in support of a separate and distinct issue of that kind were plead ed and, indeed, the incident of June 13, 1985 could not admit of any such plea.
It is elementary that two of the principal func tions of pleadings are "To define with clarity and precision the question in controversy between liti gants" and to "give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issues disclosed by them." 3 These important functions of pleadings were underscored by Lord Radcliffe in Esso Petroleum Co. Ltd. v. Southport Corporation, [1956] A.C. 218 (H.L.), at page 241:
My Lords, I think that this case ought to be decided in accordance with the pleadings. If it is, I am of opinion, as was the trial judge, that the respondents failed to establish any claim to relief that was valid in law. If it is not, we might do better justice to the respondents—I cannot tell, since the evi dence is incomplete—but I am certain that we should do worse justice to the appellants, since in my view they were entitled to conduct the case and confine their evidence in reliance upon the further and better particulars of paragraph 2 of the statement of claim which had been delivered by the respondents. It seems to me that it is the purpose of such particulars that they should help to define the issues and to indicate to the party who asks for them how much of the range of his possible evidence will be relevant and how much irrelevant to those issues. Proper use of them shortens the hearing and reduces costs. But if an appellate court is to treat reliance upon them as pedantry or mere formalism, I do not see what part they have to play in our trial system.
The appellant complains of being taken una wares by paragraph 1 of the judgment and says that, had notice been given in the pleadings that section 8 of the Charter was being relied upon as the basis for a general attack on the validity of paragraph 41(2)(c) of the Regulations and para graph 14 of the Commissioner's Directive, evi dence would have been adduced in response and argument presented. In short, the claim is one of
3 The Law of Civil Procedure, Williston, W.B. and Rolls, R.J., Vol. 2 (Toronto: Butterworths, 1970), at p. 637, and the authorities therein cited.
prejudice. I quite agree. In my view of the plead- ings, the strip searching of inmates in general as authorized by paragraph 41(2)(c) of the Regula tions and as purportedly qualified by paragraph 14 of the Commissioner's Directive, was not put in issue. That being so, the possible application of section 8 of the Charter could only be addressed at the trial, and form a basis for relief in the judg ment, in the context of the pleadings which, when read as a whole, put into question only the validity of those two paragraphs to the extent that they purport to authorize the strip searching of male inmates in the presence of a female guard.
Strip Searching
This brings me to the third issue. The appellant contends that the learned Judge erred in conclud ing that paragraph 41(2)(c) of the Regulations and paragraph 14 of the Commissioner's Directive are inconsistent with section 8 of the Charter to the extent that, together, they purport to authorize the strip searching of a male inmate by or in the presence of a female guard in emergency situa tions. The Trial Judge expressed his concern with such strip searching when weighed against the right to a reasonable expectation of privacy guar anteed by section 8. In his view, this rendered the manner of the search unreasonable. At pages 399- 400 F.C. of his reasons for judgment, he said:
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 situations 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 sensitivity 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 circumstances 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 viewing 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 (ibid).
The Grummett case, a decision of the United States Court of Appeals for the 9th Circuit, is reported at 779 F.2d 491 (1985). I respectfully agree with the learned Trial Judge on this aspect of his decision.
Clearly, nothing on the face of paragraph 41(2)(c) limits strip searching of male inmates by or in the presence of female guards to emergency situations. The only cross-gender searches it recog nizes for exclusion are of female inmates by male guards as provided for in subsection 41(3). The appellant seeks to save the paragraph from a dec laration of invalidity by reference to the qualifica tion contained in paragraph 14 of the Commission er's Directive, providing that searches of the kind complained of be made only in "urgent circum stances". The learned Trial Judge rejected that argument as well, being of the opinion that the Commissioner's Directive did not have the force of law and, accordingly, that it could neither qualify the generality of paragraph 41(2)(c) nor prescribe a "limit" within section 1 of the Charter. The learned Trial Judge, at page 396 F.C. of his reasons for judgment (Appeal Book, page 38), viewed this paragraph as "the critical provision because only it has the force of law".
The appellant submits that paragraph 14 of the Commissioner's Directive constitutes a qualifica tion of paragraph 41(2)(c) or, at all events, that it represents a reasonable limit on that paragraph that is "prescribed by law" within section 1 of the Charter. The learned Trial Judge, at page 397 F.C. of his reasons for judgment (Appeal Book, page 39), was of opinion that the Directive "can- not be seen as having legal force" and that it did not "constitute legal requirements which would make the search power provided in the Regula tions a reasonable one within the meaning of sec tion 8 of the Charter". He also rejected the argu ment that paragraph 14 of the Directive prescribed a reasonable limit within section 1 of the Charter. At page 413 F.C. of his reasons for judgment, he said:
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 Direc tives are designed for the internal management of prison insti tutions. Their infringement may give rise to disciplinary action within the institution, but they create no legal rights or obliga tions (Martineau et al. v. Matsqui Institution Inmate Discipli nary Board, [ 1978] 1 S.C.R. 118, at p. 129) ....
Therefore, such Directives cannot be regarded as legally effective to limit search powers nor can they be regarded as effective under section 1 as "limits prescribed by law" for the purposes of limiting rights guaranteed by the Charter.
The appellant argues that there was error in applying the decision of the Supreme Court of Canada in Martineau et al. v. Matsqui Institution Inmate Disciplinary Board [[1978] 1 S.C.R. 118], which is submitted to be distinguishable because it was concerned with whether a decision was one that was required "by law" to be made on a judicial or quasi-judicial basis within the meaning of section 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10. In fact, it had been made pursuant to a Commissioner's Directive, also adopted in virtue of authority conferred by subsec tion 29(3) of the Penitentiary Act [R.S.C. 1970, c. P-6]. In deciding that the Directive was not "law", Pigeon J., for the majority, said at page 129:
I have no doubt that the regulations are law. The statute provides for sanction by fine or imprisonment. What was said by the Privy Council with respect to orders in council under the War Measures Act in the Japanese Canadians case ([1947] A.C. 87), at p. 107, would be applicable:
The legislative activity of Parliament is still present at the time when the orders are made, and these orders are "law".
I do not think the same can be said of the directives. It is significant that there is no provision for penalty and, while they are authorized by statute, they are clearly of an administrative, not a legislative, nature. It is not in any legislative capacity that the Commissioner is authorized to issue directives but in his administrative capacity. I have no doubt that he would have the power of doing it by virtue of his authority without express legislative enactment. It appears to me that s. 29(3) is to be considered in the same way as many other provisions of an administrative nature dealing with departments of the adminis-
tration which merely spell out administrative authority that would exist even if not explicitly provided for by statute.
In my opinion it is important to distinguish between duties imposed on public employees by statutes or regulations having the force of law and obligations prescribed by virtue of their condition of public employees. The members of a disciplinary board are not high public officers but ordinarily [sic] civil servants. The Commissioner's directives are no more than directions as to the manner of carrying out their duties in the administration of the institution where they are employed.
With respect, I think we are bound by that deci sion. Accordingly, I must agree with the Trial Judge that the Commissioner's Directive could not work a change in paragraph 41(2)(c) of the Regulations.
It is argued that the limit set forth in paragraph 14 of the Commissioner's Directive was, in any event, "prescribed by law" within section 1 of the Charter, although it is not expressed in terms of a regulation, because statutory provision for its adoption was made in subsection 29(3) of the Penitentiary Act:
29....
(3) Subject to this Act and any regulations made under subsection (I), the Commissioner may make rules, to be known as Commissioner's directives, for the organization, training, discipline, efficiency, administration and good government of the Service, and for the custody, treatment, training, employ ment and discipline of inmates and the good government of penitentiaries.
In this connection, the appellant relies on the following views expressed by Le Dain J., dissent ing, in R. v. Therens et al., [1985] 1 S.C.R. 613, at page 645:
Section 1 requires that the limit be prescribed by law, that it be reasonable, and that it be demonstrably justified in a free and democratic society. The requirement that the limit be prescribed by law is chiefly concerned with the distinction between a limit imposed by law and one that is arbitrary. The limit will be prescribed by law within the meaning of s. 1 if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements. The limit may also result from the application of a common law rule. [Emphasis added.]
Reliance is also placed on the decision of the Court of Appeal for British Columbia in Douglas/ Kwantlen Faculty Assn. v. Douglas College (1988), 21 B.C.L.R. (2d) 175, where one of the questions before the Court concerned the meaning
of the word "law" in section 52 of the Charter. After referring to the various views expressed in the Therens case, including those of Le Dain J. just recited, the Court said, at pages 182-183:
If R. v. Therens offers guidance on what is not "law" under the Charter, Operation Dismantle Inc. v. R., [1985] 1 S.C.R. 441 at 459, 12 Admin. L.R. 16, -13 C.R.R. 287, 18 D.L.R. (4th) 481 at 494, 59 N.R. 1 [Fed.], suggests what "law" may include. The court there concluded that acts of the Cabinet, as the executive arm of government, are reviewable under s. 32(1) of the Charter. Dickson J., speaking for the majority of the court, added the following comment with respect to s. 52:
I would like to note that nothing in these reasons should be taken as the adoption of the view that the reference to "laws" in s. 52 of the Charter is confined to statutes, regulations and the common law. It may well be that if the supremacy of the constitution expressed in s. 52 is to be meaningful, then all acts taken pursuant to powers granted by law will fall within s. 52.
This comment may be read as suggesting that "law" in s. 52 of the Charter extends to the acts of subordinate government bodies, such as Douglas College. An alternative interpretation is that the court wished to leave open the question of whether executive acts of government, as opposed to statutes and regu lations, may constitute "law" under s. 52. Whatever the inten tion, the language chosen is broad. "Law" in s. 52, the majority of the court concludes, may not be confined to statutes. regula tions and the common law. "[A]ll acts taken pursuant to powers granted by law" may fall within s. 52. That language is capable of embracing the contention that the policies of subor dinate government bodies may constitute "law" under s. 52 of the Charter.
In our opinion, the broad approach to "law" in s. 52 of the Charter suggested in Operation Dismantle does not necessarily conflict with the view of "law" in s. 1 adopted in Therens. The question in Therens was whether the police officers' conduct could be said to be "prescribed by law" under s. 1 of the Charter. An arbitrary, discretionary act may not be prescribed by law even though it may be said to have been made pursuant to a power conferred by law. On the other hand, where legislation or other government rule which is law expressly confers a discretion to make a decision on a particular matter and the decision is in accordance with stipulated criteria, the decision of the public servant might be considered to be pre scribed by law: see, for example Re Germany and Rauca (1983), 41 O.R. (2d) 225, 34 C.R. (3d) 97, 4 C.C.C. (3d) 385, 4 C.R.R. 42, 145 D.L.R. (3d) 638 (C.A.); Horbas v. Min. of Employment & Immigration, [1985] 2 F.C. 359, 22 D.L.R. (4th) 600 (T.D.); and Re Ont. Film & Video Appreciation Soc. and Ont. Bd. of Censors (1983), 41 O.R. (2d) 583, 34 C.R. (3d) 73, 147 D.L.R. (3d) 58, affirmed 45 O.R. (2d) 80, 38
C.R. (3d) 271, 2 O.A.C. 388, 5 D.L.R. (4th) 766, leave to appeal to S.C.C. granted 5 D.L.R. (4th) 766n, 3 O.A.C. 318. If the emphasis is placed on "prescribed" rather than on "law" in s. 1, the Supreme Court's comments in Therens do not conflict with the suggestion in Operation Dismantle that all acts per formed under powers conferred by government may be "law" under s. 52. [Emphasis added.]
That case as I see it, did not deal with the precise point now under discussion. It is whether a further rule authorized by Parliament, rather than a decision made pursuant to a statute or regula tion, may be viewed as "law" for the purposes of section 1 of the Charter. Although the point at issue has yet to be authoritatively decided, I ven ture to suggest that the term "by law" in section 1 does not include the Commissioner's Directive even though its adoption is provided for in the statute. That directive was not, in its adoption, required to be put through any recognized legisla tive process, and may be altered without reference to such process, theoretically even at the whim of its creator. In this sense, the statute is "law" and so too are the Regulations. Directives, on the other hand, are, as Pigeon J. described them [at page 129] in the Martineau case, mere "directions as to the manner . .. duties" are to be carried out. They are not "law". From the language used to author ize their adoption, when compared with the regula- tion-making power in subsection 29(1) of the Act, it is apparent that the directives were not intended to carry anything like the serious legal import of the Regulations. Though, obviously, the language of their authorization is similar in many respects to the regulation-making power, the intention seems to have been to provide for measures con cerning the "good government of penitentiaries". I cannot regard paragraph 14 of the Directive as
"law" in the sense that it could prescribe a limit authorized by section 1, and so result in a depar ture from the supreme law of Canada as enshrined in section 8 of the Charter.
As the language of paragraph 41(2)(c), taken alone, purports to authorize the strip search com plained of, the Trial Judge proceeded to an exami nation of its provisions from a reasonability stand point and found it wanting in that it failed to set down specific criteria for searching inmates by which it could be judged against the right guaran teed by section 8 of the Charter. The qualification in paragraph 41(2)(c) that a member must consid er the search "reasonable" for detecting contra band or to maintain good order of the institution, was not considered by the Trial Judge to furnish the control of the use of strip searches he thought necessary. A step in the right direction, he thought, might have been taken had the Regula tions adopted the criteria set out in paragraph 12 of the Commissioner's Directive, providing for strip searching of inmates in limited situations. 4 Those limits were ineffectual because the Directive did not have the force of law and, in any event, paragraph 12 did not include other possible situa tions in which strip searches might be used.
After reviewing certain decided cases in Canada and the United States (R. v. Collins, [1987] 1 S.C.R. 265; Hunter et al. v. Southam Inc., [ 1984] 2 S.C.R. 145; R. v. Rao (1984), 46 O.R. (2d) 80 (C.A.); Re Maltby et al. and Attorney-General of Saskatchewan et al. (1982), 143 D.L.R. (3d) 649 (Sask. Q.B.); aff'd (1984), 13 C.C.C. (3d) 308 (Sask. C.A.); Soenen v. Director of Edmonton Remand Centre, Attorney General of Alberta and
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.
Solicitor General of Alberta (1984), 48 A.R. 31 (Q.B.); Bell v. Wolfish, 441 U.S. 520 (1979)), the learned Judge gave the following explanation at pages 394-395 F.C. of his reasons for judgment, for concluding that additional control should be provided for in the Regulations:
While there may be some differences between what is justifi able in a remand centre, and in long-term imprisonment situa tions, the evidence satisfies me that a convicted inmate cannot reasonably 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 limitations on his normal rights implicit in conviction 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 reasonable and probable cause to suspect the particu lar 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 themselves, 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 situations. There might be, for example, a rule providing 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 routine 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 prohibited matter on his person. Where time or circumstances do not permit those conducting non-routine searches to obtain authority from a superior officer, there should be some meaningful requirement of review by such superior officer after the event. The evidence as to post-search reviews at Joyceville does not suggest to me that they were likely to be effective in deterring unjustified searches.
The appellant submits that the standard enun ciated by Dickson C.J. in the Hunter case for determining whether any state intrusions on priva cy constitute an unreasonable search within sec tion 8 in the context of the warrantless search of a business office, ill-fits strip searching of inmates in
a penitentiary setting, and that, in any case, it was not intended to be applied across the board. The standard in that case calls for an assessment of the right of privacy against the state's interest in intruding on that right, and for a system of prior authorization in order to prevent unjustified intru sions. That only a reasonable expectation of priva cy is protected by section 8 was made clear by the learned Chief Justice, at pages 159-160:
Like the Supreme Court of the United States, I would be wary of foreclosing the possibility that the right to be secure against unreasonable search and seizure might protect interests beyond the right of privacy, but for purposes of the present appeal I am satisfied that its protections go at least that far. The guarantee of security from unreasonable search and sei zure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from "unreasonable" search and seizure, or posi tively as an entitlement to a "reasonable" expectation of priva cy, indicates that an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement.
The question that remains, and the one upon which the present appeal hinges, is how this assessment is to be made. When is it to be made, by whom and on what basis? Here again, I think the proper approach is a purposive one.
That purpose is, as I have said, to protect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation.
A requirement of prior authorization, usually in the form of a valid warrant, has been a consistent prerequisite for a valid search and seizure both at common law and under most statutes. Such a requirement puts the onus on the state to demonstrate the superiority of its interest to that of the individual. As such it accords with the apparent intention of the Charter to prefer, where feasible, the right of the individual to be free from state interference to the interests of the state in advancing its purposes through such interference.
The appellant argues that this standard was not intended to be applied to circumstances that are markedly different from those considered by the
Supreme Court in the Hunter case. It is asserted, indeed, that the possible operation of a different standard in wholly different circumstances was recognized in that case by the learned Chief Jus tice when he said, at page 161:
I recognize that it may not be reasonable in every instance to insist on prior authorization in order to validate governmental intrusions upon individuals' expectations of privacy. Neverthe less, where it is feasible to obtain prior authorization, I would hold that such authorization is a precondition for a valid search and seizure. [Emphasis added.]
The idea that some searches, by virtue of the circumstances in which they are made, may not admit of prior authorization, was noted by the Court of Appeal for Ontario in Rao case, where Martin J.A. said, at pages 106-107:
In my view, the warrantless search of a person's office requires justification in order to meet the constitutional stand ard of reasonableness secured by s. 8 of the Charter, and statutory provisions authorizing such warrantless searches are subject to challenge under the Charter. The justification for a warrantless search may be found in the existence of circum stances which make it impracticable to obtain a warrant: see, for example, s. 101(2) of the Code, s. 11(2) of the Official Secrets Act. The individual's reasonable expectation of privacy must, of course, be balanced against the public interest in effective law enforcement. However, where no circumstances exist which make the obtaining of a warrant impracticable and when the obtaining of a warrant would not impede effective law enforcement, a warrantless search of an office of fixed location (except as an incident of a lawful arrest) cannot be justified and does not meet the constitutional standard of reasonableness prescribed by s. 8 of the Charter. [Emphasis added.]
This was recognized again in R. v..T.M.G. (1986), 56 O.R. (2d) 705 (C.A.), where a statutory provi sion authorizing the search of a student for contra band without prior authorization, was upheld. At pages 710-711, Grange J.A. observed on behalf of the Court:
In Canada the test for a statute authorizing a search has been held in Hunter et al. v. Southam Inc. (1984), 14 C.C.C. (3d) 97, 11 D.L.R. (4th) 641, 2 C.P.R. (3d) 1, to be, generally speaking, for the search to be prior-authorized by a neutral and impartial person. The Supreme Court of Canada also con sidered the "reasonable expectation of privacy" of the individu al who is subjected to the search. However in Hunter, Dickson C.J.C. was balancing the interest of an individual with that of the State. Although, as I have said, I am prepared to presume that the Charter applies to the relationship between principal
and student, that relationship is not remotely like that of a policeman and citizen. First, the principal has a substantial interest not only in the welfare of the other students but in the accused student as well. Secondly, society as a whole has an interest in the maintenance of a proper educational environ ment, which clearly involves being able to enforce school discipline efficiently and effectively. It is often neither feasible nor desirable that the principal should require prior authoriza tion before searching his or her student and seizing contraband. [Emphasis added.]
The appellant stresses that the realities of the penitentiary setting should be viewed as allowing departure from the need of prior authorization or for the existence of a reasonable belief. Such reali ties have been recognized by the Courts. They are graphically described in these words of Mr. Justice MacGuigan (speaking for himself) in Howard v. Stony Mountain Institution, [1984] 2 F.C. 642 (C.A.), at page 681:
Penitentiaries are not nice places for nice people. They are rather institutions of incarceration for the confinement of for the most part crime-hardened and anti-social men and women, serving sentences of more than two years. Reformation fortu nately remains an aspiration of the prison system, but the prevalent environment is sadly reminiscent of Hobbes' primitive state of nature before the advent of the leviathan, where human life was said to be solitary, poor, nasty, brutish and short. In such an atmosphere of discord and hatred, minor sparks can set off major conflagrations of the most incendiary sort. Order is both more necessary and more fragile than in even military and police contexts, and its restoration, when disturbed, becomes a matter of frightening immediacy.
It would be an ill-informed court that was not aware of the necessity for immediate response by prison authorities to breaches of prison order and it would be a rash one that would deny them the means to react effectively.
In two American cases, which reached the Supreme Court of the United States, the searching of inmates or detainees appears to have been left to the discretion of the penal or detention institu tion concerned rather than controlled by a set of pre-conditions: Lanza v. New York, 370 U.S. 139 (1962); Bell v. Wolfish, 441 U.S. 520 (1979). It was argued there that searches violated the right in the Fourth Amendment to the United States Constitution to be secure "... against unreason-
able searches and seizures". In the former case, Stewart J. noted the peculiarities of the prison setting when he said on behalf of the majority, at page 143:
But to say that a public jail is the equivalent of a man's "house" or that it is a place where he can claim constitutional immunity from search or seizure of his person, his papers, or his effects, is at best a novel argument. To be sure, the Court has been far from niggardly in construing the physical scope of Fourth Amendment protection. A business office is a protected area, (Silverthorne Lumber Co. v. United States, 251 U.S. 385; Gouled v. United States, 255 U.S. 298) and so may be a store. (Amos v. United States, 255 U.S. 313; Davis v. United States, 328 U.S. 582.) A hotel room, in the eyes of the Fourth Amendment; may become a person's "house," (Lustig v. United States, 338 U.S. 74; United States v. Jeffers, 342 U.S. 48) and so, of course, may an apartment. (Jones v. United States, 362 U.S. 257.) An automobile may not be unreasonably searched. (Gambino v. United States, 275 U.S. 310; Carroll v. United States, 267 U.S. 132; Brinegar v. United States, 338 U.S. 160; Henry v. United States, 361 U.S. 98.) Neither may an occupied taxicab. (Rios v. United States, 364 U.S. 253.) Yet, without attempting either to define or to predict the ultimate scope of Fourth Amendment protection, it is obvious that a jail shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room. In prison, official surveillance has traditionally been the order of the day. (N. Y. Correction Law §500-c provides, in part: "Convicts under sentence shall not be allowed to converse with any other person, except in the presence of a keeper." The N. Y. State Commission of Correc tion, Regulations for Management of County Jails (Revised 1953 ed.), provide, in part: "All parts of the jail should be frequently searched for contraband.") [Emphasis added.]
In the Wolfish case, Rehnquist J. (as he then was), speaking for the majority, focused mainly on con cerns for a detention institution's security in assessing the reasonability of body searches. At pages 558-559, he said:
Admittedly, this practice instinctively gives us the most pause. However, assuming for present purposes that inmates, both convicted prisoners and pretrial detainees, retain some Fourth Amendment rights upon commitment to a corrections facility, see Lanza v. New York, supra; Stroud v. United States, 251 U.S. 15, 21 (1919), we nonetheless conclude that these searches do not violate that Amendment. The Fourth Amendment prohibits only unreasonable searches, Carroll v. United States, 267 U.S. 132, 147 (1925), and under the
circumstances, we do not believe that these searches are unreasonable.
The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intru sion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. E. g., United States v. Ramsey, 431 U.S. 606 (1977); United States v. Martinez-Fuerte, 428 U.S. 543 (1976); United States v. Brignoni-Ponce, 422 U.S. 873 (1975); Terry v. Ohio, 392 U.S. 1 (1968); Katz v. United States, 389 U.S. 347 (1967); Schmer- ber v. California, 384 U.S. 757 (1966). A detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence. And inmate attempts to secrete these items into the facility by concealing them in body cavities are documented in this record, App. 71-76, and in other cases. E.g., Ferraro v. United States, 590 F. 2d 335 (CA6 1978); United States v. Park, 521 F. 2d 1381, 1382 (CA9 1975). [Emphasis added.]
In my view, in deciding the point we ought not to overlook these peculiarities of prison life and the special problems they present to prison administra tors discharging their responsibility for "safety and security" of the institution. 5 They suggest to me that these administrators are entitled to some def erence in adopting and applying policies and prac tices required for the maintenance of order and security, and for the safety and protection of inmates and staff alike. This is not to suggest that the authorities and staff should have a completely free hand in these matters and so abuse their powers. The authority contained in paragraph 41(2) (c) is limited to situations where a member considers that the action is "reasonable" either to
5 Subsection 5(1) of the Regulations provides:
5. (1) The institutional head is responsible for the direc tion of his staff, the organization, safety and security of his institution and the correctional training of all inmates con fined therein.
detect contraband or to maintain the good order of the Institution. In my opinion, such searches must always be bona fide. They cannot be used with the intent of intimidating, humiliating or harassing inmates or of inflicting punishment. A meaningful post-search review process should also be available so that any abuses may be detected at an early opportunity.
Emergency Situations
The question whether and, if so, how "emergen- cy situations" may be defined in the Regulations, having regard to the right guaranteed by section 8 of the Charter, was fully argued before us. Such a definition could be adopted by a regulation made by the Governor in Council pursuant to the broad powers conferred under subsection 29(1) [as am. by S.C. 1976-77, c. 43, s. 44] of the Penitentiary Act:
29. (1) The Governor in Council may make regulations
(a) for the organization, training, discipline, efficiency, administration and good government of the Service;
(b) for the custody, treatment, training, employment and discipline of inmates;
(c) generally, for carrying into effect the purposes and provi sions of this Act.
I do not propose to deal with the point at length, but merely to offer a few observations. The appel lant argues for a flexible approach which would allow the institutional head to discharge his statu tory responsibility for the "safety and security of his institution" in a sound and reasonable manner. The respondent supports a more specific definition. I have already noted the peculiarities of the peni tentiary setting as compared with other places where searches of individuals are sometimes car ried out, e.g. a business office or a private dwell ing. In this regard, I fully agree with the learned' Trial Judge when he says at page 393 F.C. of his reasons for judgment:
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 reasonable to equate the expectation of privacy in a home or office with that in a prison.
At the same time, it appears to me difficult, if not impossible, to develop a definition of emergen cy situations based upon specific criteria that would be sufficiently clear and precise and yet be workable. This is borne out by expert opinion adduced at trial. The witness considered that an emergency would exist "if one is in the midst of a full-scale major disturbance or prison riot" (Tran- script, Vol. 5, at page 959) but offered no other illustrations. In cross-examination, he acknowl edged that some degree of discretion must always remain with the institution in deciding whether an emergency situation exists. He testified:
Q. You would agree that the institution head should be left with some scope to decide when an emergency exists?
A. That is the exact purpose of asking the institution or the jurisdiction to develop policies on emergencies, yes.
Q. But these policies would leave discretion to the institutional head to decide when an emergency would exist?
A. I would think the degree of discretion would be dependent upon what the definition of an emergency would be.
Again, I would imagine that there would be more than one type of emergency, but it would probably be identified and perhaps more than one course of action might be identified.
Q. You would agree that there would always have to be some discretion left to the institutional head to decide when an emergency existed even if there were other set defined circumstances?
A. I agree that discretion would have to exist within the directors of an institution, yes.
(Transcript, Vol. 5, page 960)
This evidence, it seems to me, points out the difficulty of satisfactorily defining "emergency situations" without running afoul of the section 8 guarantee. A definition that proceeded from the particular to the general (starting with specific situations such as major disturbances or riots and ending with more general wording that included unspecified situations that might be difficult if not impossible to foresee), could no doubt be cast. If I have correctly understood the realities of the prison setting, it would seem foolish to insist upon a definition of emergency situations that was lim ited to specific types, e.g. major disturbances and
riots. To do so would be to inject the Court's judgment into the sphere of responsibility properly vested in the institutional head. Though situations of that kind should be specified, I think the defini tion should also allow for other unforeseen situa tions where strip searching of a male inmate by or in the presence of a female guard requires immedi ate implementation. 6
Disposition
In the result I would allow the appeal to the extent I have indicated, and would vary paragraph 1 of the judgment below as follows:
1. by adding the word "male" immediately before the word "penitentiary", and the words "by or in the presence of a female correctional officer in a non-emergency situation" immediately after the word "inmates" in the fourth line;
2. by adding the word "male" immediately before the word "penitentiary" in the sixth line;
3. by adding to the end of the paragraph the words "to the extent of that inconsistency."
so that the paragraph as so varied shall read:
1. IT IS ADJUDGED AND DECLARED THAT paragraph 41(2)(c) of the Penitentiary Service Regulations, C.R.C. 1978, c. 1251 insofar as it purports to authorize the strip searching of male penitentiary inmates by or in the presence of a female correc tional officer in a non-emergency situation is, in its present form, inconsistent with rights guaranteed to male penitentiary inmates by section 8 of the Canadian Charter of Rights and Freedoms and is for the purpose of authorizing any such strip searches, inoperative and of no force or effect to the extent of that inconsistency.
The respondent also submitted that the learned Judge erred in law in rejecting his claim that there
6 In Sterling v. Cupp, 625 P.2d 123 (Or. 1981), for example, the term "emergency situation" in a prison's administrative rules was broadly re-defined as the "occurrence of an unforeseen circumstance requiring immediate implementation of remedial action".
exists in a penitentiary inmate a general right to the privacy that is guaranteed by section 7 of the Charter. As the question is not squarely raised for our decision, I do not feel the necessity of taking it up at this time.
As no costs are requested by the appellant, none will be awarded.
MAHONEY J.: I agree. LACOMBE J.: I agree.
 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.