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The Court of Appeal dismissed the appeal. Gibbs J.A. held that the random urinalysis program did not violate sections 7 or 8 of the Charter while acknowledging that a conviction for either a positive result or a refusal to submit to testing could impact on transfer prospects, consideration for various forms of conditional release, and participation in programs involving contact with the community. Gibbs J.A. asserted that in his judgment of the application of sections 7 and 8 of the Charter, the trial judge took all the appropriate factors into account, touching upon the relevant evidence from time to time, and reached the right conclusion. The three-part test associated with a section 8 Charter analysis was met. The Act and the Regulations authorize the search. Regarding the question of whether the law is reasonable, the court is called upon to strike a delicate balance between societal interests and individual rights. Given the magnitude and pervasiveness of the problem and the minimal intrusion into the already limited privacy expectation of the inmates, Gibbs J.A. had no difficulty in concluding that the balance falls heavily in favour of the societal interest. It followed that the law was reasonable. The third part of the test requires consideration of the question of whether the manner of carrying out the search is reasonable. Gibbs J.A. agreed with the trial judge's view that the seizures are carried out in a reasonable manner. Although urination on demand is unusual, the two-hour time period given for compliance addresses that. Although urination in the presence of an observer (of the same sex) is also unusual, the need to ensure that the sample is not tampered with seems obvious, and the fact of observation does not, by itself, make the collection process unreasonable. As to section 7 of the Charter, when a law is found not to violate section 8, it follows that the same law will meet the fundamental justice requirement of section 7 to justify a deprivation or diminution of the right to liberty and security of the person. If section 7 requires a kind of stand-alone consideration, Gibbs J.A. is content that its analysis of the section 8 factors as applied to the evidence in this case be applied also to section 7 and that the result would be the same. The one additional factor is a purpose test, which establishes that where deprivation of the right in question does little or nothing to enhance the state's interest, a breach of fundamental justice will be made out. It could not be seriously contended otherwise than that the prospect of advancing the state's interest in this case, given the nature of that interest, constitutes a valid purpose that justifies the infringement upon section 7 rights.
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