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.