Gagnon v. Deslauriers, docket T-331-96

Date: 19971126

Docket: T-331-96

Before: Pinard J.

Between:

                 CAROLINE GAGNON

                 - and -

                 DANIEL RAYMOND,

Applicants,

- and -

                 MICHEL DESLAURIERS

                 - and -

                 JEAN-CLAUDE PERRON

                 - and -

                 ATTORNEY GENERAL OF CANADA,

Respondents.

ORDER

     The application for judicial review is dismissed.

YVON PINARD

JUDGE                

OTTAWA, ONTARIO,

November 26, 1997.

Certified true translation

C. Delon, LL.L.

Date: 19971126

Docket: T-331-96

Between:

                 CAROLINE GAGNON

                 - and -

                 DANIEL RAYMOND,

Applicants,

- and -

                 MICHEL DESLAURIERS

                 - and -

                 JEAN-CLAUDE PERRON

                 - and -

                 ATTORNEY GENERAL OF CANADA,

Respondents.

REASONS FOR ORDER

PINARD J.:

[1]      This application for judicial review concerns a decision of the Warden of the Leclerc Institution to introduce IONSCAN, a device using ion mobility spectrometry to detect drug particles on visitors to inmates at the institution. The applicants, two such visitors on whom the IONSCAN was used, are asking in particular that this device cease being used on all visitors to inmates at the institution in question. Michel Deslauriers and Jean-Claude Parent were made respondents in their respective capacities as Warden of the Leclerc Institution and Regional Commissioner of the Correctional Service of Canada.

FACTS

[2]      In view of the problems involved in preventing drugs being brought into federal correctional institutions and the significant interest which the Correctional Service of Canada has in stopping drug use and drug-related violence in those institutions, the Commissioner of the Correctional Service of Canada has implemented a national anti-drug strategy which is the subject of Commissioner's Directive No. 585 of January 2, 1996. As part of this national anti-drug strategy, together with an inmate urinalysis program provided for in s. 54 of the Corrections and Conditional Release Act, R.S.C. 1985, c. C-44.6 ("the Act"), it was decided to introduce the IONSCAN as a pilot project in order to prevent drugs being brought by visitors into the Leclerc Institution, which has a particularly severe problem with drugs.

[3]      To implement IONSCAN the Warden of the Leclerc Institution on December 8, 1995 adopted, pursuant to the Act, Standing Order No. 571.5, titled "Spectrometry Using the IONSCAN". This Standing Order, amplified on February 29 and June 5, 1996, defined the policy objective as follows:¹

To promote and further the safety of the institution and the public by detecting the use of illicit drugs such as narcotics and other banned substances in order to dissuade offenders from using these drugs and/or trafficking in them.

[4]      On November 17, 1995 notices about the introduction of the IONSCAN as a pilot project in the Leclerc Institution beginning on December 11, 1995 were given to all visitors as well as to inmates, and several such notices were posted in the institution's visitors' room. The equipment has in fact been in operation there since December 11, 1995 and makes possible a preliminary identification of visitors who might be in possession of drugs when they request admittance to the institution. Like use of the metal detector, this use of the IONSCAN is a non-intrusive search method. The equipment is used at the main entrance to the penitentiary to sweep a visitor's possessions. David Lévesque, Unit Manager at the Leclerc Institution, stated that this search procedure is carried out by asking the visitor to wipe personal possessions with a cloth or by using the suction device provided for the purpose on the personal possessions: the first method is used more often because it can be done more quickly. Of course, when the visitor enters the institution he or she may refuse to be checked in this way and simply leave the premises. If he or she agrees to an IONSCAN check the sample obtained is then given to the equipment operator for analysis. Depending on whether the drug level detected, if any, exceeds the lower threshold set by the Warden, paragraphs (c) and (d) of s. 19 of Standing Order No. 571.5^* of July 4, 1996 must now be applied. It is worth setting out s. 19 of the Standing Order here:

19.      Staff may request visitors to submit to a search of their clothing, such as coats, raincoats or other outerwear, and/or their personal possessions:

(a)      when visitors enter the institution;

(b)      visitors who refuse to submit to a search must not be allowed to enter the institution and they will be asked to leave penitentiary property unless they are persons listed in Annex A of Commissioner's Directive #575 (legal counsel for example). These persons will be allowed to communicate with their inmate clients by means of a non-contact visit and/or under the direct supervision of a staff member;

(c)      if the drug level detected is not above the lower threshold, visitors may proceed with their regular visit;

(d)      in all cases where the level detected is over the minimum threshold, the visitor will be requested to wait, and, during the day shift, the preventive security officer, the Unit #4 Manager or the person designated by the institutional head and the V and C officer will be notified. During the evening shift, the correctional supervisor will be notified. In cases of this kind, one of the following decisions will be made:

(i)      authorization to enter if the Unit #4 Manager, the person delegated or the V and C staff (during the day shift), or the correctional supervisor (during the other shifts), are convinced that the visit will not present any risk to the safety of the institution. In such cases, visitors will have to provide a valid explanation for the positive finding and/or consent to a more complete search which will eliminate all suspicion;

(ii)      refusal of a contact visit and authorization for a non-contact visit (on condition there is room in the V and C area) or for a non-contact visit [sic] (in this case there is a physical barrier between the offender and the visitor or the visit takes place under the direct supervision of a staff member);

(iii)      the visitor is requested to leave the institutional premises.

The visitor may also be subjected to one or more of the following searches:

(iv)      further routine non-intrusive searches or a routine frisk search (CCRA, s. 59; Regulations, s. 54);

(v)      a frisk search (after the visitor has entered the visiting area and is no longer at the entrance) when the staff member suspects on reasonable grounds that the visitor is carrying contraband (subsection 60(1) of the CCRA);

(vi)      a strip search (at the entrance or afterwards) when the staff member suspects on reasonable grounds that the visitor is carrying contraband and believes that a strip search is necessary to find the contraband and can satisfy the institutional head that there are reasonable grounds to believe that a strip search is necessary. He must first give the visitor the option of voluntarily leaving the penitentiary (subsection 60(2) of the CCRA);

(vii)      a strip search, when the staff member suspects on reasonable grounds that the visitor is carrying contraband, and the visitor may be detained, with the usual precautions (subsection 60(3) of the CCRA), in order for the police or a staff member to conduct a strip search without the visitor being granted the option of leaving the penitentiary. Form CSC-844 entitled "Request and authorization to search a visitor" must also be completed and authorization obtained from the institutional head for conducting the strip search;

(viii)      in cases where the IONSCAN analysis indicates the presence of a banned substance in quantities above the threshold authorized, it is essential that the Unit #4 Manager or authorized person, the correctional supervisor, PSO or the V and C officers, question the visitor or visitors and consider each time, in an honest and thorough manner, the above possibilities in the order in which they are presented. A report must also be completed about each case.

ISSUE

[5]      The only point at issue is whether the use of the IONSCAN at the Leclerc Institution to detect the traces of drugs on visitors is a wrongful search in breach of s. 8 of the Canadian Charter of Rights and Freedoms ("the Charter"), which provides:

Everyone has the right to be secure against unreasonable search or seizure.

ANALYSIS

[6]      It was not disputed that Standing Order 571.5, "Spectrometry Using the IONSCAN", was adopted pursuant to the Act, which contains provisions for maintaining order inside penitentiaries, and in particular ss. 40, 45, 46, 59 and 60, the relevant provisions of which must be indicated:

40. An inmate commits a disciplinary offence who

. . . . .

( i) is in possession of, or deals in, contraband;

( j) without prior authorization, is in possession of, or deals in, an item that is not authorized by a Commissioner's Directive or by a written order of the institutional head;

( k) takes an intoxicant into the inmate's body . . .

45. Every person commits a summary conviction offence who

( a) is in possession of contraband beyond the visitor control point in a penitentiary;

( b) is in possession of anything referred to in paragraphs (b) or (c) of the definition "contraband" in section 2 before the visitor control point at a penitentiary;

( c) delivers contraband to, or receives contraband from, an inmate . . .

46. "non-intrusive search" means

( a) a search of a non-intrusive nature of the clothed body by technical means, in the prescribed manner, and

( b) a search of

(i) personal possessions, including clothing, that the person may be carrying, and

(ii) any coat or jacket that the person has been requested to remove,

in accordance with any applicable regulations made under paragraph 96(l) . . .

59. A staff member may conduct routine non-intrusive searches or routine frisk searches of visitors, without individualized suspicion, in the prescribed circumstances, which circumstances must be limited to what is reasonably required for security purposes.

60.      (1) A staff member may conduct a frisk search of a visitor where the staff member suspects on reasonable grounds that the visitor is carrying contraband or carrying other evidence relating to an offence under section 45.

(2) Where a staff member

( a) suspects on reasonable grounds that a visitor is carrying contraband or carrying other evidence relating to an offence under section 45 and believes that a strip search is necessary to find the contraband or evidence, and

( b) satisfies the institutional head that there are reasonable grounds

(i) to suspect that the visitor is carrying contraband or carrying other evidence relating to an offence under section 45, and

(ii) to believe that a strip search is necessary to find the contraband or evidence,

a staff member of the same sex as the visitor may, after giving the visitor the option of voluntarily leaving the penitentiary forthwith, conduct a strip search of the visitor.

(3) Where a staff member believes on reasonable grounds that a visitor is carrying contraband or carrying other evidence relating to an offence under section 45 and that a strip search is necessary to find the contraband or evidence,

( a) the staff member may detain the visitor in order to

(i) obtain the authorization of the institutional head to conduct a strip search, or

(ii) obtain the services of the police; and

( b) where the staff member satisfies the institutional head that there are reasonable grounds to believe

(i) that the visitor is carrying contraband or carrying other evidence relating to an offence under section 45, and

(ii) that a strip search is necessary to find the contraband or evidence,

the institutional head may authorize a staff member of the same sex as the visitor to conduct a strip search of the visitor.

(4) A visitor who is detained pursuant to subsection 3 shall

( a) be informed promptly of the reasons for the detention; and

( b) before being searched, be given a reasonable opportunity to retain and instruct counsel without delay and be informed of that right.

[7]      Through their counsel the applicants indicated that they also agreed with the stated objective of the policy in Standing Order 571.5 in question, recognizing that there are serious drug-related problems in federal penal institutions.

[8]      What the applicants actually objected to was the excessive discretion given to the authorities concerned of the Leclerc Institution by Standing Order 571.5 in applying the policy contained therein, in view of the unreliability of the IONSCAN equipment and the experience undergone by the two applicants. In this connection the applicants, in their respective affidavits, objected to an arbitrary and wrongful application of the policy in question and, at the end of his affidavit, their expert witness Louis Léonard concluded:

[TRANSLATION]

This equipment does allow the presence of drugs to be identified with a certain measure of effectiveness, but with certain important limitations . . .

[9]      All of this evidence by the applicants was however categorically contradicted by that of the respondents, and in particular the version of the facts given by the deponent Jean-Luc Mercier, the correctional officer assigned to search the two applicants, that given by the deponent David Lévesque, Unit Manager at the Leclerc Institution responsible for supervising operation of the IONSCAN, who was present when the two applicants were searched, and the expert opinion set out in affidavit of the scientist Ludmila (Lucy) Danylewych-May. Further, in his affidavit the Warden of the Leclerc Institution stated that he had found the following since the IONSCAN went into operation:

[TRANSLATION]

(a)      a drastic reduction in violent incidents between inmates;

(b)      a drastic reduction in requests for protection in preventive detention by inmates on account of drug debts;

(c)      no hospitalization of an inmate for intoxication, whereas they occurred frequently prior to December 1995;

(d)      a marked decrease in the quantity of drugs seized on visitors;

(e)      a renewal of the use of new methods to bring drugs into the institution, especially by drug-filled objects thrown over the institution fence and falling into the inside yard.

[10]      Accordingly, it is not the constitutionality of any particular provision of the Act (or the Regulations adopted thereunder) which is at issue in the case at bar (this undoubtedly explains why no notice was given under s. 57 of the Federal Court Act as required), but simply the actual application of the policy of using the IONSCAN set out in Standing Order No. 571.5. In fact, during his oral argument counsel for the applicants even admitted that full application of this written policy, combined with a judicious exercise of the discretion provided for in it, would not cause a problem. The attempt here to stop use of the equipment on all visitors to the Leclerc Institution is based on the contradicted evidence of only two visitors, against a background of testimony by expert witnesses whose opinions differed significantly on whether the IONSCAN was really reliable, and this attempt is made on the pretext of a breach of the rights of those two individuals under s. 8 of the Charter. In the circumstances, I consider that the applicants have not shifted the burden of establishing the necessary factual basis to support their request, and this suffices to dismiss the application for judicial review.

[11]      However, there is another significant and sufficient ground which leads the Court to the same conclusion. For there to be an "unreasonable search" within the meaning of s. 8 of the Charter there must be a reasonable invasion of the privacy of the person subject to that search. In [1984] 2 S.C.R. 145">Hunter v. Southam, [1984] 2 S.C.R. 145, at 159 and 160, Dickson J. said the following for the Supreme Court:

The guarantee of security from unreasonable search and seizure 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 positively as an entitlement to a "reasonable" expectation of privacy, 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 individuals' privacy in order to advance its goals, notably those of law enforcement.

[12]      Subsequently, in the Supreme Court judgment in Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872,² La Forest J. wrote for the Court, at 877:

Imprisonment necessarily entails surveillance, searching and scrutiny. A prison cell is expected to be exposed and to require observation. The frisk search, the count and the wind are all practices necessary in a penitentiary for the security of the institution, the public and indeed the prisoners themselves. A substantially reduced level of privacy is present in this setting and a prisoner thus cannot hold a reasonable expectation of privacy with respect to these practices. This conclusion is unaffected by the fact that the practices at times may be conducted by female guards. There being no reasonable expectation of privacy, s. 8 of the Charter is not called into play; nor is s. 7 implicated.

                                 (My emphasis.)

[13]      In Fieldhouse et al. v. The Queen in right of Canada et al. (1995), 98 C.C.C. (3d) 207, the British Columbia Court of Appeal, which had to decide on the constitutionality of urine tests administered in penitentiaries at random, first described the problems found in such institutions, at 212 and 213 of its decision:

. . . management problems associated with drug-related assaults, intimidation, underground (the market-place) and overdoses leading to death; the power exerted by those who control the drug trade, the extent to which property and sexual favours are exchanged for drugs, tension for both staff and inmates; beatings, requests for transfers to protective custody, pressure on visiting family members to import drugs, younger and weaker inmates being converted to mules for transporting drugs. And the litany goes on.

[14]      The Court then held that in light of the scope and seriousness of the problem the appellants could no longer have a reasonable expectation of privacy as to the selection of urine samples as in Weatherall, supra.

[15]      Relying on these precedents, and also on the article by A.D. Reid and A.H. Young titled "Administrative Search and Seizure Under the Charter" (1985), 10 Queen's L. J. 392, R. v. McKinlay Transport Limited et al., [1990] 1 S.C.R. 627, and on R. v. Lirette (September 12, 1995), DRS 96-13312, [1995] A.Q. No. 701, I consider that individuals' expectations of privacy are lower when they have to visit someone in a penal institution.

[16]      In McKinlay, supra, Wilson J., citing the relevant passage in the article by A.D. Reid and A.H. Young, supra, said the following at 645:

Since individuals have different expectations of privacy in different contexts and with regard to different kinds of information and documents, it follows that the standard of review of what is "reasonable" in a given context must be flexible if it is to be realistic and meaningful. I think the point is aptly made by A.D. Reid and A.H. Young in "Administrative Search and Seizure Under the Charter" (1985), 10 Queen's L. J. 392, at pp. 398-400:

A person's expectations of privacy with respect to administrative search and seizure have been less well defined [than criminal search and seizure]. There are facets of state authority, generically associated with search or seizure, that are so intertwined with the regulated activity as to raise virtually no expectation of privacy whatsoever. Inspections may be blended into product grading functions, and in fact, they may be so integrated into the production process that a refusal to inspect can by law be invoked as a sanction to enforce the maintenance of prescribed sanitary conditions within the plant. Other activities are regulated so routinely that there is virtually no expectation of privacy from state intrusion. Annual filing requirements for banks, corporations, trust companies, loan companies and the like are inextricably associated with carrying on business under state licence.

There are other situations in which government intrusion cannot be as confidently predicted, yet the range of discretion extended to state officials is so wide as to create in the regulatee an expectation that he may be inspected or requested to provide information at some point in the future. This may arise in the form of an inspection carried out either on a "spot check" basis, or on the strength of suspected non-compliance. The search may be in the form of a request for information that is not prescribed as an annual filing requirement, but is required to be produced on a demand basis. For the most part, there is no requirement that these powers be exercised on belief or suspicion of non-compliance. Rather, they are based on the common sense assumption that the threat of unannounced inspection may be the most effective way to induce compliance. They are based on a view that inspection may be the only means of detecting non-compliance, and that its detection serves an important public purpose. Inspections to determine work place safety, building safety, aviation safety, fire safety, environmental quality, food quality, health standards and the like have been routinely authorized by statute without specifying grounds for intruding upon someone's privacy.

There is, therefore, a large circle of social and business activity in which there is a very low expectation of privacy. The issue is not whether, but rather when, how much, and under what conditions information must be disclosed to satisfy the state's legitimate requirements. Every person who files an annual tax return may be said to enjoy a low expectation of privacy with respect to information about his income. But that is surely tempered by an expectation that demands for information have limits, and will be administered under terms that are fair and reasonable. That is what section 8 of the Charter is all about. [Emphasis added.]

[17]      Finally, in Lirette, supra, the Quebec Court of Appeal had to consider the admissibility in evidence of an audio tape made at the visit to an inmate in a penitentiary by his companion. After citing the passage from Weatherall cited above, the Court said in paragraph 13:

[TRANSLATION]

The circumstances in which the visits to inmates take place are not such as to suggest a higher expectation of privacy in the visiting room than that which inmates may claim for their cells. The penal setting, the express terms of the messages written on signs, the number of signs, the places where they are posted, the attendance at visits, the fact that all communications are also monitored, are all factors which taken together render untenable the argument that a reasonable person could expect that his conversation would not be intercepted.

                                 (My emphasis.)

[18]      In view of the particular circumstances of the case at bar, the undoubted existence of serious problems from the bringing of drugs into federal penal institutions and the significant interest which the Correctional Service of Canada has in preventing drug use and drug-related violence in those institutions, and in particular and above all at the Leclerc Institution, I feel that someone in that institution to visit an inmate does not have a higher expectation of privacy in any search to which he or she may be subjected than that which inmates in the institution may claim to have. Accordingly, as the applicants here have no reasonable expectation of privacy there can be no breach of s. 8 of the Charter.

[19]      For these reasons, the application for judicial review is dismissed.

YVON PINARD

JUDGE                

OTTAWA, ONTARIO,

November 26, 1997.

Certified true translation

C. Delon, LL.L.

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:      T-331-96

STYLE OF CAUSE:      Caroline Gagnon and Daniel Raymond v.

     Michel Deslauriers and Jean-Claude Perron and

     Attorney General of Canada

PLACE OF HEARING:      Montréal, Quebec

DATE OF HEARING:      November 19, 1997

REASONS FOR ORDER BY PINARD J.

DATED:      November 26, 1997

APPEARANCES:

Jacques Normandeau      FOR THE APPLICANT

David Lucas      FOR THE RESPONDENT

SOLICITORS OF RECORD:

Jacques Normandeau

Montréal, Quebec      FOR THE APPLICANT

George Thomson

Deputy Attorney General of Canada      FOR THE RESPONDENT

__________________

¹      This objective is exactly the same as that described in the national Standing Order of October 25, 1995 regarding the introduction of the IONSCAN.

^*      Now 571.2 - TR.

²      Also often cited as Conway v. Canada (Attorney General), [1993] 2 S.C.R. 872.