69. For the purposes of a hearing of a disciplinary offence referred to in paragraph 40(k) of the Act, a certificate referred to in subsection 68(1) that states that the result of a urinalysis test is positive establishes, in the absence of evidence to the contrary, that the inmate who provided the sample has committed the offence.

70. For the purposes of a hearing or review respecting the contravention of condition of release, a certificate referred to in subsection 68(1) that states that the result of a urinalysis test is positive establishes, in the absence of evidence to the contrary, that the offender who provided the sample has failed to comply with a condition referred to in section 55 of the Act.

71. Where an inmate is found guilty of a disciplinary offence referred to in paragraph 40(k) of the Act, the inmate may, in addition to any sanction imposed pursuant to subsection 44(1) of the Act, be required to provide a samples each month until three consecutive negative monthly samples have be n provided.

72. Where an offender who is released by the National Parole Board is unable or refuses to provide a sample or provides, pursuant to section 55 of he Act, a sample that is positive the Service shall inform the National Parole Board, in writing, and shall

ensure that the offender is provided with counselling or other appropriate post-release intervention; or

submit a report to the regional head that details all of the circumstances that led to the injury or death.

Neiman v. Stony Mountain Institution, Institution Disciplinary Court - (1996), 120 F.T.R. 76, [1996] F.C.J. No.1414 (F.C.T.D.)

- As a result of being convicted of taking an intoxicant into his body under section 40(k) of the CCRA, an inmate was "required to provide a sample each month until three consecutive negative monthly samples have been provided." These were taken from him on December 28, 1994, on January 4, 1995, and on February 7, 1995. The urine sample that was taken on January 4, 1995 tested positive. The inmate submitted that the taking of the urine samples was not in accordance with section 71 of the Regulations, which mandated that the testing be done at 28 to 30 day intervals. The Federal Court did not agree with the inmate's submissions and dismissed the application. The Court held that had it been intended that the testing occur at 28 to 30 day intervals, the regulation would have been precisely drafted in those terms. Moreover, the French text was taken by the Court to be clearer than the English version. It provides that testing shall be done every month until three consecutive positive test results are obtained. It supports the position that the exact interval of the number of days between tests is not important. Lastly, the Court found the CSC's argument, that it is important in administering such a testing program that there be scope for random testing, a relevant consideration. Such would not be available if an inmate knew that after the first test he would not be retested for another 28 to 30 days.

Simoneau v. Canada (Correctional Service) - (1998), 40 W.C.B. (2d) 17, [1998] F.C.J. No.1078 (F.C.T.D.), 1998 CanLII 8011 (F.C.)

- An inmate was convicted of the disciplinary offence of taking an intoxicant into his body as set out in paragraph 40(k) of the CCRA, and consequently was required pursuant to section 71 of the Regulations to provide a urine sample every three months until three consecutive negative samples were given. On November 26, 1996, the inmate provided the first sample required under section 71 of the Regulations and the result was negative. On December 17, 1996, the inmate refused to provide a second sample and was later convicted under paragraph 40(a) of the Act for the disciplinary offence of disobeying a justifiable order of a staff member to provide a urine sample. On January 31, 1997, the inmate provided a sample for which the result was positive and as a result, on February 19, 1997, the inmate was convicted for taking an intoxicant under paragraph 40(k) of the Act. On February 24th, the correctional officer was informed of the February 19 conviction. That same day, the inmate provided a negative sample. The inmate later provided negative samples on April 24, 1997, and May 16, 1997. On June 17, 1997, a sample was requested and refused. On August 13, 1997, the inmate was charged and convicted under paragraph 40(a) of the Act for the June 17, 1997 refusal to provide a sample. The inmate applied for judicial review of the August 13 conviction. The Federal Court allowed the application and set aside the conviction. The Court noted that only after providing a urine sample on February 24, 1997 was the inmate notified by the corrections officer that he would be required to provide the monthly samples, pursuant to section 71 of the Regulations, for the conviction of February 19, 1997 conviction. Yet, the gist of all this was that the inmate provided three consecutive negative samples following the February 19, 1997 conviction, but the officer did not want to include the February 24 sample for the purposes of the February 19 conviction. The Court held that the inmate was not responsible for the fact that the corrections officer was not informed until February 24 that the chairperson had given a decision on February 19. The fact that the officer did not ask the inmate to provide a urine sample during the month of March 1997 does not depend on the inmate. The inmate provided three consecutive samples, on February 24, April 24, and May 16, as required, and all turned out to be negative. In these very specific circumstances, the Court concluded that it would be unfair and unreasonable to hold that the inmate failed to comply with section 71 of the Regulations.

Royer v. Canada (Attorney General) - [2001] F.C.J. No.1869, 2001 CFPI 1359 (F.C.T.D.) (French version)

- On September 22, 2000 an inmate received a request for a random selection urinalysis under section 54(b) of the CCRA, which proved to be positive. On October 25, 2000 he was found guilty of the disciplinary offence of taking an intoxicant into his body pursuant to section 40(k) of the Act and was ordered to pay a $25 fine. Two days later, and as a consequence of his disciplinary conviction, a memorandum was issued to the inmate telling him that as of November 2000 he would have to provide a urine sample monthly pursuant to section 71 of the Regulations each month until he had given three consecutive negative monthly samples. As a result of several refusals on the part of the inmate to provide these urine samples, specifically occurring on December 10, 2000 and January 11, February 27 and March 13, 2001, the inmate was further found guilty of four disciplinary charges under section 40(l) of the CCRA. In challenging these disciplinary convictions through judicial review, the inmate set out several issues. First, were the orders to submit to urinalysis made on December 18, 2000 and January 11 and March 13, 2001 pursuant to section 71 of the Regulations legal although in each case a similar order had been made less than a month before? Second, is section 71 of the Regulations ultra vires the Act, and as the urinalysis requests made of the inmate pursuant to that section were not provided for either by section 44(1) or section 54 of the Act, do they constitute an unlawful search contrary to section 8 of the Charter? The Federal Court dismissed the inmate's application. The question of the interpretation to be given the phrase "each month" contained in section 71 of the Regulations was decided by the Federal Court in Neiman v. Stoney Mountain Institution, [1996] F.C.J. No.1414 (F.C.T.D.). The Court concluded that this phrase meant that the urinalysis requests should be made in consecutive months but did not necessarily imply that the interval between each request should be 30 days. Regarding the second issue, the inmate maintained that the urinalysis order in this case was not made pursuant to sections 54 or 55 of the Act but pursuant to section 71 of the Regulations. Accordingly, he submitted that since certain components of the offence set out in section 40(l) of the Act were absent he clearly had not committed the offence. Section 71 of the Regulations was validly adopted by the Governor in Council pursuant to section 96(m) of the Act and is a consequence of a positive urinalysis. The Court held that Section 71 of the Regulations is no way ultra vires the Act. Further, section 71 and sections 69 to 72 of the Regulations fall under the subheading "Consequences of positive test results" which itself comes under the more general heading "Urinalysis Testing," thus confirming its legislative derivation. Nothing in the Act specifically prohibits the adoption of such a regulation, not even section 54, which in no way states that a urinalysis request cannot be authorized or required except in the situations stated in the section. Furthermore, the urinalysis requested under section 71 of the Regulations are an administrative measure available to the prison authorities, who can use it to counter drug use by inmates in penitentiaries, not a disciplinary penalty. The disciplinary penalties that may be imposed on an inmate found guilty of a disciplinary offence are those set out in section 44(1) of the Act. Consequently, section 71 of the Regulations is entirely consistent with the Act and its enabling provision and so allowed the prison authorities to ask the inmate to submit to urinalysis. However, the Court also stipulated that the disciplinary penalties which may be imposed on an inmate found guilty of a disciplinary offence are those set out in section 44(1) of the Act, and consequently section 71 of the Regulations does not authorize the prison authorities to impose any further punishment or disciplinary penalty. The Court went to hold that since the random selection process which authorized the taking on September 22, 2000 pursuant to section 54(b) of the Act of the urine sample that led to the subsequent urinalysis requests pursuant to section 71 of the Regulations is constitutionally valid, neither section 71 of the Regulations nor its implementation in this case contravenes section 8 of the Charter.

Corresponding Act: Sections 46-67 Search and Seizure