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

      (2) Idem - A person providing services of a prescribed class to the Service under a contract has the power to search that a staff member is authorized to conduct under subsection (1) if

the conducting of such searches is provided for in the contract but does not constitute the person's principal services under the contract;

the searches are reasonably related to the person's principal services under the contract; and

the person has received the prescribed training to conduct such searches.

[1992, c. 20, s. 47; 1995, c. 42, s. 14(F). ]

Gunn v. Yeomans (No.2) - (1980), 55 C.C.C. (2d) 452, 114 D.L.R. (3d) 289, [1981] 2 F.C. 99 (F.C.T.D.)

- Section 41(2) of the Penitentiary Service Regulations provided that "where the institutional head of a federal penitentiary suspects, on reasonable grounds, that an… inmate… is in possession of contraband he may order that person to be searched…" Under the Penitentiary Act, the institutional head was also responsible for the direction of his staff, the organization, safety and security of his institution and the correctional training of all inmates confined within the institution. To that end he may issue standing orders peculiar to his institution and routine orders to give information and direction to all officers under his command. Both standing orders and routine orders are issued under the authority of the Commissioner. It follows that since the Commissioner cannot issue directives in conflict with the Regulations he cannot authorize standing orders that will do so. In this case, the institutional head had issued standing orders requiring employees to ensure that all inmates are thoroughly skin-frisked before leaving and when returning to the penitentiary. Accordingly, the Court held that such standing orders were unlawful because they were in conflict with section 41(2) of the Regulations. This Regulation prescribed the circumstances under which the institutional head may order the search of an inmate for contraband. He must suspect, on reasonable grounds, that the inmate to be searched is in possession of contraband as a condition precedent to ordering the search. While the institutional head might be justified in holding the suspicion that each and every inmate who leaves the institution and returns thereto on temporary, but authorized, absences is likely to be carrying contraband the Court did not think that such suspicion is held on reasonable grounds with respect to a particular inmate. The suspicion must be specific and not a suspicion generally held.

Robertson v. Yeomans - (1981), 58 C.C.C. (2d) 1, 121 D.L.R. (3d) 353, [1982] 1 F.C. 53 (F.C.T.D.)

- In response to the decision in Gunn v. Yeomans (No.2)(1980), 55 C.C.C. (2d) 452, 114 D.L.R. (3d) 289, [1981] 2 F.C. 99 (F.C.T.D.), section 41(2) of the Penitentiary Service Regulations was amended to so that a member may search "any inmate or inmates, where a member considers such action reasonable to detect the presence of contraband or to maintain the good order of the institution…" Accordingly, the Court held a standing order of the institution directing body searches of all inmates after open visits to be valid. Further, it followed that there was no basis for the submission that section 41(2), as amended, was ultra vires based on the point of lack of reasonable and probable grounds for believing on the part of a member of the penitentiary services at the time skin-frisks were ordered that such skin-searches were necessary to detect the presence of contraband or to maintain the good order of the institution. The Court accepted in this case the expert evidence of the institutional warden that contraband would enter the institution after open visits if no such preventative measures were taken.

Weatherall v. Canada (Attorney General) - (1993), 83 C.C.C. (3d) 1, 23 C.R. (4th) 1, [1993] 2 S.C.R. 872 (S.C.C.)

- This was an appeal by a male inmate from the Federal Court of Appeal where the appellant challenged the constitutionality of frisk searching and patrolling of cell ranges conducted in male penitentiaries by female guards pursuant to sections 7, 8 and 15 of the Charter. In dismissing the appeal, the Supreme Court stated that 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, section 8 of the Charter is not called into play; nor is section 7 implicated. The Court felt it doubtful that section 15(1) of the Charter was violated despite the fact that female penitentiary inmates are not similarly subject to cross-gender frisk searches and surveillance. Even if one were to look at this different treatment as amounting to a breach of section 15(1), the practices are saved by section 1 of the Charter.

48. Routine strip search of inmates - A staff member of the same sex as the inmate may conduct a routine strip search of an inmate, without individualized suspicion,

in the prescribed circumstances, which circumstances must be limited to situations in which the inmate has been in a place where there was a likelihood of access to contraband that is capable of being hidden on or in the body; or

when the inmate is entering or leaving a segregation area.

49. (1) Frisk search of inmate - Where a staff member suspects on reasonable grounds that an inmate is carrying contraband or carrying evidence relating to a disciplinary or criminal offence, the staff member may conduct a frisk search of the inmate.

      (2) Idem - A person providing services of a prescribed class to the Service under a contract has the powers of search of a staff member under subsection (1) if

the conducting of such searches is provided for in the contract but does not constitute the person's principal services under the contract;

the searches are reasonably related to the person's principal services under the contract; and

the person has received the prescribed training to conduct such searches.

      (3) Strip search of inmate - Where a staff member

believes on reasonable grounds that an inmate is carrying contraband or carrying evidence relating to a disciplinary or criminal offence, and that a strip search is necessary to find the contraband or evidence, and

 (b)

satisfies the institutional head that there are reasonable grounds to so believe,

a staff member of the same sex as the inmate may conduct a strip search of the inmate.

      (4) Emergency search - Where a staff member

satisfies the requirements of paragraph (3)(a), and

believes on reasonable grounds that the delay that would be necessary in order to comply with paragraph (3)(b) or with the gender requirement of subsection (3) would result in danger to human life or safety or in loss or destruction of the evidence,

the staff member may conduct the strip search without complying with paragraph (3)(b) or the gender requirement of subsection (3).

Shortreed v. Canada (Attorney General) - (1997), 131 F.T.R. 113, [1997] F.C.J. No.954 (F.C.T.D.), 1999 CanLII 8764 (F.C.A.)

- On the basis of information received from Xerox Canada, a correctional officer acting as supervisor of the Inmate Committee, perceived that someone was abusing subsidized photocopying privileges. The officer later found the inmate applicant, a member of the Inmate Committee, using the photocopier in the Personal Development Programs building. The inmate was copying pages from a legal text on behalf of the Inmate Committee. The officer advised that he considered this legal research to be personal business and therefore unauthorized legal research, as personal photocopying had to be done through the library. The inmate disagreed and the officer then took the two law books to his supervisor for an opinion as to whether the photocopying was for personal use or not. At no time did the inmate object to this action. After a few days the supervisor agreed that the texts were for personal business, and that the inmate was not entitled to photocopy the articles on the Personal Development Programs machine. The officer informed the inmate of this decision and returned the books to him. In applying for judicial review, the inmate submitted that the CSC had no jurisdiction to search for the books pursuant to s49(1) of the CCRA. In dismissing the application, the Federal Court held that there was no evidence that the inmate objected to the officer's actions, and that since the officer took the books to get a second opinion, it was actually in the inmate's interest to give the books to the officer. Furthermore, there was no evidence that CSC officers decided that the law books were "contraband," and seized them on that basis. The evidence was that there was a concern over the abuse of photocopying privileges for unauthorized personal use, and the books were examined to see if they were for personal use or unauthorized use. There was no error of fact or jurisdictional error and the Court saw no unreasonableness in the officer's actions. In any event, the issue was moot, as the books were returned to the inmate within a few days.

50. Staff member to inform institutional head - Where a staff member believes on reasonable grounds that an inmate is carrying contraband in a body cavity, the staff member may not seize or attempt to seize that contraband, but shall inform the institutional head.

51. Use of X-ray, "dry cell" - Where the institutional head is satisfied that there are reasonable grounds to believe that an inmate has ingested contraband or is carrying contraband in a body cavity, the institutional head may authorize in writing one or both of the following:

the use of an X-ray machine by a qualified X-ray technician to find the contraband, if the consent of the inmate and of a qualified medical practitioner is obtained; and

the detention of the inmate in a cell without plumbing fixtures, with notice to the penitentiary's medical staff, on the expectation that the contraband will be expelled.

52. Body cavity search - Where the institutional head is satisfied that there are reasonable grounds to believe that an inmate is carrying contraband in a body cavity and that a body cavity search is necessary in order to find or seize the contraband, the institutional head may authorize in writing a body cavity search to be conducted by a qualified medical practitioner, if the inmate's consent is obtained.

53. (1) Exceptional power of search - Where the institutional head is satisfied that there are reasonable grounds to believe that

there exists, because of contraband, a clear and substantial danger to human life or safety or to the security of the penitentiary, and

a frisk search or strip search of all the inmates in the penitentiary or any part thereof is necessary in order to seize the contraband and avert the danger,

the institutional head may authorize in writing such a search, subject to subsection (2).

      (2) Gender requirement - A strip search authorized under subsection (1) shall be conducted in each case by a staff member of the same sex as the inmate.

54. Urinalysis - Subject to section 56 and subsection 57(1). a staff member may demand that an inmate submit to urinalysis

where the staff member believes on reasonable grounds that the inmate has committed or is committing the disciplinary offence referred to in paragraph 40(k) and that a urine sample is necessary to provide evidence of the offence, and the staff member obtains the prior authorization of the institutional head;

as part of a prescribed random selection urinalysis program, conducted without individualized grounds on a periodic basis and in accordance with any Commissioner's Directives that the regulations may provide for; or

where urinalysis is a prescribed requirement for participation in

a prescribed program or activity involving contact with the community, or

a prescribed substance abuse treatment program.

Dion v. Canada - (1986), 30 C.C.C. (3d) 108, [1986] R.J.Q. 2196 (Que.S.C.)

- The Court declared that section 41.1 of the Penitentiary Service Regulations did not satisfy the requirements of fundamental justice referred to in section 7 of the Charter and were thus of no force and effect. Section 41.1 authorized a member to require that an inmate provide him with a sample of his urine when he considers it necessary in order to detect the presence of an intoxicant in the inmate's body. Essentially, section 41.1 gave an officer or penitentiary employee the absolute power to require a urine sample, even if the inmate did not present any danger of committing discipline breaches or acts linked to the absorption of intoxicants, and without requiring that the penitentiary employee act only upon reasonable and probable grounds. This section did not contain the essential elements of fundamental justice because it did not ensure an inmate of protection against abuse by one of the members of the penitentiary service. Arbitrariness has always been, and will always be, contrary to fundamental justice.

Jackson v. Joyceville Penitentiary (Disciplinary Tribunal) - (1990), 55 C.C.C. (3d) 50, 75 C.R. (3d) 174, [1990] 3 F.C. 55 (F.C.T.D.)

- Section 41.1 of the Penitentiary Service Regulations authorized a member to require that an inmate provide him with a sample of his urine when he considers it necessary in order to detect the presence of an intoxicant in the inmate's body. In this case, the Court concluded that section 41.1, in so far as it authorizes a requirement for an inmate to provide a urine specimen where it is believed the inmate has ingested an intoxicant, contravenes sections 7 and 8 of the Charter and is thus of no force and effect. This was so because the Regulation itself contained no standards, criteria, or circumstances relating to its application, for the guidance of staff or inmates, which would ensure that application is not unreasonable within the meaning of section 8; and because the restrictions on rights to liberty and security of the person are not, in the absence of standards or criteria or applicable circumstance (in other words, not tied to reasonable and probable cause), in accord with the principles of fundamental justice. The court stated that its conclusion did not relate directly to the other situations that would have been included in the overall plan of the correctional service for urinalysis testing if that plan were implemented, i.e., random testing, testing of those with a history of involvement with drugs, and testing of those involved in community programmes that provide significant contact opportunities with outsiders. None of those aspects of the planned programme were directly before the Court in this case. The Court, however, did not feel that section 41.1 violated an inmate's section 15 Charter equality rights. In this case section 41.1 of the Regulations did provide for treatment of prison inmates on a basis different from that of most, if not all, other individuals in Canada and thus may be said to derogate from their right to equality before the law. Yet, the Court was not persuaded that this difference or derogation was discriminatory in the sense provided for in section 15(1) of the Charter.

Fieldhouse v. Canada - (1995), 40 C.R. (4th) 263, 98 C.C.C. (3d) 207, [1995] B.C.J. No.975 (B.C.C.A.)

- This was an appeal by several inmates from a judgment of a provincial superior court refusing to issue a declaration that section 54(b) of the CCRA, and sections 60 and 63 of the Regulations, which authorizes the random urinalysis program, violated sections 7 and 8 of the Charter. The Court of Appeal dismissed the appeal. The Court 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. The Court held 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, the Court 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. The Court 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, the Court 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.

Penner v. Stony Mountain Institution Inmate Disciplinary Court - (1995), 101 F.T.R. 148, [1995] F.C.J. No.1218 (F.C.T.D.)

- An inmate was observed by a correctional officer to be staggering and weaving down a corridor in the institution. The correctional officer proceeded to obtain prior authorization, pursuant to section 54(a) of the CCRA, in order to demand that the inmate submit to urinalysis. That authorization having been obtained, the demand was made of the inmate almost 24 hours after the observation. The inmate declined to give a sample and was subsequently found guilty in disciplinary court of refusing to provide a urine sample when demanded pursuant to section 54 of the CCRA. The inmate argued that the delay between the time when his suspect conduct was observed and the time a urine sample was demanded seriously prejudiced the inmate through infringement of his capacity to provide a credible and verifiable explanation for his conduct and through erosion of his capacity to prepare a defence against a disciplinary charge. The Federal Court was not persuaded by the inmate's argument and dismissed the application. While a lengthy delay between establishment of a reasonable belief and a demand that an inmate submit to urinalysis might truly be prejudicial to the inmate and a breach of fairness, the Court was not satisfied that a delay of close to 24 hours produced such a result. Further, by failing to take of advantage of the opportunity to make representations, given to him at the time of the demand for a sample, the inmate exposed himself to the risk of a conviction on a disciplinary charge.

McWhinney v. Canada (Commissioner of Corrections) - (1996), 1 C.R. (5th) 116, 117 F.T.R. 81, [1996] F.C.J. No.1051 (F.C.T.D.)

- On 12 October 1994, M appeared before the National Parole Board with respect to his parole status. At the hearing, the Board granted full parole to M on the condition that he reside at Gunn Centre, a half-way house. The Board also stipulated that parole would be effective when bed space became available at Gunn Centre. Subsequent to this decision and while waiting for a bed to become available at the Gunn Centre, M was asked to provide a urine sample for analysis, pursuant to a program of "random selection" established under s54(b) of the CCRA, but did not comply because he feared his sample would be tampered with and that he would be denied parole. Disciplinary action ensued and M's parole was cancelled. M submitted that s40 of the CCRA regarding discipline only applied to an "inmate", and since he had been granted full parole by order of the Board on 12 October 1994, he was not an "inmate" within the meaning of subsection 2(1) of the CCRA. The court disagreed and held M to be an "inmate" when the urine sample was demanded because the conditions of his parole had not yet been met. His full parole was granted but effective, in part, only when bed space was available at Gunn Centre. The court found that the clear intention of this provision was that M was to remain an "inmate" until a bed was not only available to him but that he actually occupied it.

Beaudoin v. William Head Institution - (1997), 139 F.T.R. 133, [1997] F.C.J. No.1663 (F.C.T.D.)

- This was an application for judicial review of a decision by an independent chairperson to convict four inmates of the disciplinary offence of failing or refusing to provide a urine sample when demanded pursuant to section 54(a) of the CCRA. The charges arose when a correctional officer smelled what he believed to be an odour of hashish in the living quarters of a unit occupied by six inmates. Without further investigation, the officer then demanded a urine sample from each of the six residents. All four applicants refused to provide a urine sample. One of the applicants insisted on being examined by a nurse who expressed the opinion that the applicant did not look like he had ingested an intoxicant. Two of the applicants requested the opportunity to make representations to the warden in accordance with section 57(1) of the Act. The warden met with these two and offered the opinion that neither of them showed signs of having ingested an intoxicant. During the proceedings before the independent chairperson, the officer who had demanded the urine samples acknowledged that none of the four showed signs of having ingested an intoxicant. Further, he acknowledged that he did not have "reasonable grounds" to believe that any one of the applicants had ingested an intoxicant. The Federal Court allowed the application and set aside the disciplinary conviction. The Federal Court expressed the view that on the facts of this matter, at least in respect of the applicant B, there was simply no evidence before the chairperson on which to conclude that the officer who demanded the a urine sample from B had "reasonable grounds" to believe, as required by section 54(a), that B had ingested an intoxicant. The only evidence before the chairperson, that being of a strong odour of hashish in the living unit in question, was that someone had ingested an intoxicant. Six inmates lived in the unit of which B was one. There was no evidence to indicate that other inmates in the institution had not been or could not have been present in the living unit in the minutes immediately preceding the time when the officer detected the odour of hashish. Several persons may have been responsible. Further, one of the applicants suggested to the officer that the odour in question was not, in fact, hashish but a cooking odour resulting from the meal that the residents had cooked themselves earlier in the evening. In the end, the Federal Court concluded that the chairperson committed a reviewable error in convicting B in that he had no evidence before him on which to conclude that the officer who demanded that B submit to urinalysis had reasonable grounds to believe that he had ingested an intoxicant.

Durie v. Canada (Attorney General) - (2001), 201 F.T.R. 8(2001), 201 F.T.R. 8, 2001 FCT 22, [2001] F.C.J. No.169 (F.C.T.D.)

- An inmate applied for judicial review of a disciplinary court decision to convict him under section 40(L) of the CCRA for failing or refusing to provide a urine sample when demanded pursuant to section 54 or 55. While the inmate submitted to the disciplinary court that a medical condition provided a reasonable justifiable excuse, the independent chairperson stated that some medical evidence - none of which was provided by the inmate - was required. The Federal Court allowed the application, quashed the chairperson's decision and substituted it with a finding of not guilty. The Federal Court held that the onus of proof is on the Respondent (prosecutor) in inmate disciplinary hearings. The onus shifts to the Applicant (accused) when the Respondent has shown that the offence has taken place and the applicant is offering lawful excuse. The chairperson in this case erred in requiring medical evidence and/or documentation. An inmate is entitled to offer evidence on lawful excuse and the chairperson should weigh the evidence and determine whether it constitutes lawful excuse. An inmate is not required to produce medical evidence or documentary evidence, but in many cases it would be in the inmate's interest to do so. There is no standard type of evidence that is required by law.

55. Urinalysis - Subject to section 56 and subsection 57(2), a staff member, or any other person so authorized by the Service, may demand that an offender submit to urinalysis

at once, where the staff member or other authorized person has reasonable grounds to suspect that the offender has breached any condition of a temporary absence, work release, parole or statutory release that requires abstention from alcohol or drugs, in order to monitor the offender's compliance with that condition; or

at regular intervals, in order to monitor the offender's compliance with any condition of a temporary absence, work release, parole or statutory release that requires abstention from alcohol or drugs.

[1992, c. 20, s. 55; 1995, c. 42, s. 15.]

Fehr v. Canada (National Parole Board) - (1995), 93 F.T.R. 161, [1995] F.C.J. No.552 (F.C.T.D.)

- An inmate was required to submit to urinalysis as a condition of day parole. The Federal Court held that the former section 55, which is now very similar to the current paragraph (b), and section 56 of the CCRA do not require that reasonable and probable grounds be provided to the applicant. The legislation simply requires that the offender be told the basis for the demand, and the consequences of noncompliance.

56. Information requirements - Where a demand is made of an offender to submit to urinalysis pursuant to section 54 or 55, the person making the demand shall forthwith inform the offender of the basis of the demand and the consequences of non-compliance.

Picard v. Drummond Institution - (1995), 107 F.T.R. 1, [1995] F.C.J. No.1628 (F.C.T.D.)

- An inmate refused to a demand to provide a urine sample and was convicted of a disciplinary offence pursuant to section 54(a) of the CCRA. While prison officials made the demand on the basis of a claim that the inmate had taken an intoxicant, they neither told the inmate anything about their grounds for believing that he was taking intoxicants, nor did they provide in the notice of disciplinary charges any summary of the evidence in support of their charge other than a statement that read as follows: "Reason Reason to believe." It was only at the hearing, after the inmate had pleaded not guilty to the charge, did officials indicate that the reasonable grounds to believe the inmate had committed the offence were based on information obtained from inmates or staff members but without giving any other particulars. The Federal Court allowed the inmate's application for judicial review challenging the conviction. In Demaria v. Regional Classification Board, [1987] 1 F.C. 74, 69 N.R. 135 (F.C.A.), the Federal Court of Appeal confirmed that compliance with the principles of fundamental justice or the duty of fairness requires the provision of information on the reasonable grounds to believe that an offence has been committed. In light of the case law, it was the Federal Court's view in this case that, in the absence of evidence from the authorities demonstrating that they withheld only such information as was strictly necessary, the failure to give the inmate any information at all concerning the reasonable grounds of the officers to believe that an offence was committed violated the inmate's rights under not only sections 56 and 57 of the CCRA and section 25 of the Regulations, but also section 7 of the Charter. Section 25 of the Regulations specifically requires that the notice of a charge of a disciplinary offence contain a summary of the evidence to be presented in support of the charge at the hearing. The Federal Court asserted that the simple statement provided by officials was not sufficient to meet the requirement and enable the inmate to prepare a full answer and defence. The Federal Court agreed with the statement made in Jackson v. Joyceville Penitentiary Disciplinary Tribunal, [1990] 3 F.C. 55, 32 F.T.R. 96 (T.D.), that the collection of a urine sample in a penitentiary is a search within the meaning of section 8 of the Charter. The freedom of inmates from state examination of bodily wastes without consent ought not to be taken away except in accord with the principles of fundamental justice. In this case however, since no sample had been provided by the inmate no search occurred, and as such his section 8 Charter rights had not been violated.

Grenier v. Canada (Correctional Service) - (1997), 141 F.T.R. 15 (F.C.T.D.)

- Five inmates were found guilty of failing to provide a urine sample pursuant to a request that was made to them under section 54(a) of the CCRA. The inmates applied for judicial review and the Federal Court allowed the applications, setting aside the impugned decisions. The issue was whether the correctional officer who made the demand to the inmates gave sufficient notice of "the basis of the demand" within the meaning of section 56 of the Act. In this case, the notice was given in writing and the text read in full as follows: "96-02-03 about 20:45 the subject consumed a substance in the Y common room. (toilet)" In the Court's opinion, this notice was clearly insufficient. It more or less clearly described the alleged offence with a good number of particulars as to the time, date and place. But it does not at all give the basis of the demand because it provided no details concerning the grounds, reasonable or otherwise, that the officer had. The Court stipulated that it need not rule on the issue of whether the notice required by section 56 must always be in writing, although it noted that this was the clear sense of paragraph 15 of the CD 572 of 1994-05-27. However, the Court did believe that when the authorities decide to give a written notice it must necessarily comply with all the requirements of the Act.

Savard v. Canada (Attorney General) - (1997), 128 F.T.R. 271, [1997] F.C.J. No.105 (F.C.T.D.) (French version)

- An inmate was found guilty by a disciplinary court pursuant to section 40(l) of the CCRA for refusing to provide a urine sample as required by section 54(a) of the Act. The Federal Court allowed the inmate's application for judicial review on the basis that there was a flagrant breach of section 25 of the Regulations, as the notice of charge contained absolutely no "summary of the evidence to be presented in support of the charge at the hearing." In the Court's view, this breach is fatal. As the notice of charge in this case contained merely a description of the offence and no summary of the evidence to be presented in support of the charge at the hearing before the disciplinary tribunal is given, the Court was forced to find that the authorities did not carry out the will of Parliament, which intended to give an inmate charged with a disciplinary offence a specific and particular means of preparing a full and complete defence, which is a recognized rule of natural justice. An order was therefore made quashing the decision of the independent chairperson and referring the matter back to that tribunal to be decided by it on the basis that the inmate could not be found guilty of the offence charged because the related notice of charge was not issued in full compliance with section 25 of the Regulations.

Stocking v. Joyceville Institution Disciplinary Court - (1995), 98 F.T.R. 157, [1995] F.C.J. No.936 (F.C.T.D.)

- An inmate who was asked to provide a random urine sample pursuant to section 54(b) of the CCRA requested that he be able to return to his cell in order to review his copy of the legislation and advised correctional officers that he would not provide a urine sample until he was allowed to do so. The inmate was permitted to do so. He alleged that there was an understanding between the correctional officers and himself that they would return to his cell later in the day to obtain a urine sample and if he refused to provide a sample at that time, he would be charged with refusing to provide a urinalysis. The correctional officers did not return later in the day and the inmate was charged with refusing to provide a sample. The inmate was convicted by the disciplinary court and sought judicial review. The Federal Court dismissed the application. The Court did not agree with the inmate's contention that the institution had a duty to provide the inmate with proof of the actual randomness of the selection process let alone that there be proof beyond a reasonable doubt that the inmate was randomly selected. As well, in this case the inmate had not provided to the Federal Court transcripts from the disciplinary hearing or with the original tapes of the hearing. While there was an allegation made by the inmate in his affidavit that two correctional officers gave contradictory evidence with respect to several facts, the CSC argued that the allegation was hearsay and thus inadmissible. The Court held that in the absence of any record to verify whether in fact these inconsistencies existed, it must disregard the statements pertaining to the alleged contradictions. Further, without a transcript (electronic or written) of the proceedings before the disciplinary court, the Court had no indication as to what evidence was relied upon by the independent chairperson. In the absence of sufficient particulars with respect to the hearing before the disciplinary court, the Court must conclude that the chairperson's decision was reasonable.

57. (1) Right to make representations - An inmate who is required to submit to urinalysis pursuant to paragraph 54(a) shall be given an opportunity to make representations to the institutional head before submitting the urine sample.

      (2) Idem - An offender who is required to submit to urinalysis at regular intervals pursuant to section 55 shall be given reasonable opportunities to make representations to the prescribed official in relation to the length of the intervals.

Forrest v. Canada (Attorney General) - [2002] F.C.J. No.713, 2002 FCT 539 (F.C.T.D.)

- An inmate was provided with a written demand by a correctional officer to provide a urine sample as part of the prescribed random selection urinalysis program under section 54(b) of the CCRA. Disagreeing with the length of the interval since his last urine sample, the inmate demanded to speak to a supervisor of the correctional officer. The correctional officer informed him that he did not have the right to refuse to provide a urine sample and that he did not have the right to make any representations. The inmate stated that if he were not allowed to speak to someone, then he would refuse to provide the urine sample. The inmate was not permitted to make representations and refused to provide a sample, for which he was charged with a disciplinary offence. The correctional officer's decision in this regard was part of a challenge to a disciplinary conviction that arose out of the inmate's refusal to provide the urine sample. In dismissing the application, the Federal Court wrote that Parliament has enacted in section 54 of the Act a variety of circumstances when an inmate is legally required to provide a urine sample upon demand. One situation, under section 54(b) of the Act, involves demands upon a random basis. A computer generates a random selection of inmates at each institution, and these inmates are required to submit a urine sample. The objective is to detect, prevent and deter drug use by inmates at correctional institutions. The inmate has no right to refuse when selected on a random basis. Refusal to provide a urine sample when demanded constitutes a specific disciplinary offence under subsection 40(l) of the Act. This is distinct from instances under section 54(a) of the Act where inmates are requested to provide a urine sample because the institution has reasonable grounds to suspect that the inmate has used a drug. In such situations, the inmate has the right to make representations before being required to submit the urine sample. That right to make representations is contained in section 57 of the Act. On the facts of this case, the Court found that where a random urinalysis sample has been demanded under subsection 54(b) of the Act, no right to address a superior institution officer exists. Accordingly, the Court was satisfied that the disciplinary court came to a reasonable finding that the inmate did refuse to provide the urine sample contrary to subsection 54(b) of the Act.

Corresponding Regulations: Sections 43-59 Search and Seizure and Section 60-72 Urinalysis Testing