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Offences Generally

41. (1) Every one who
(a)	delivers or attempts to deliver contraband to an inmate,
(b)	receives or attempts to receive contraband from an inmate,
(c)	trespasses upon penitentiary lands or
(d)	assists any person to do anything mentioned in paragraph (a), (b) or (c),
is guilty of an offence punishable on summary conviction and is liable to imprisonment for six months or to a fine of $500, or to both.
(2) Subject to subsection (3), any member may search
(a)	any visitor, where there is reason to believe that the visitor has contraband in his possession, and if the visitor refuses to be searched he shall be refused admission to or escorted from the institution;
(b)	any other member or members, where the institutional head has reason to believe that a member or members has or have contraband in his or their possession;
(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
(d)	any vehicle on institution property where there is reason to believe that such a search is necessary in order to detect the presence of contraband or to maintain good order of the institution.
(3) No female person shall be searched pursuant to subsection (2) except by a female person.
(4) There shall be a sign posted at the entrance to an institution, in a conspicuous position, to give warning that all vehicles and persons on institution property are subject to search. [SOR/80-462]
Legislative History - Section 41(2) was amended by SOR/80-462, effective June 19, 1980. Subsections (3) and (4) were added by SOR/80-462, effective June 19, 1980.
Judicial Consideration -
Robertson v Yeomans and Dowsett - Unreported, August 20th, 1980 No. T.3801-80 (FCTD)
	- The plaintiff prisoner has commenced an action to restrain skin frisks under this new regulation in the absence of reasonable grounds for believing that he is in possession of contraband in the area between his but- tocks or reasonable grounds for believing that it is necessary to search that area of his anatomy to maintain the good order of the institution. An application for an interlocutory injunction pending the trial was dismissed with leave to apply to the court on 24 hours notice for directions in respect of setting a time table for completion of the pre-trial proceedings in the action and obtaining an early trial date.
Robertson v Yeomans and Dowsett - Unreported, March 6th, 1981, No. T-3801-80, (FCTD)
	- At trial, the plaintiff's action was dismissed, the Court holding that the Director had reasonable and probable grounds to believe that contraband would enter the institution after open visits if no preventative measures were taken and that the Director's order to conduct these types of frisks on a routine and universal basis were within his authority under the Regulation, and further that the Regulation was not ultra vires simply because it did not require reasonable and probable grounds on behalf of the particular member of the service conducting the search. This case is on appeal to the Federal Court of Appeal.
Gunn v Yoemans and Caros (No.1) - (1979), 48 CCC (2d) 544 (FCTD)
	- The plaintiff sought and was granted an interlocutory injunction enjoining the Commissioner of Corrections and the Director of Matsqui Institution from ordering any further searches of his person except in accordance with this regulation, pending the trial of an action in which he seeks declaratory relief to the same effect as well as similar relief declaring any subordinate legislation, such as Commissioner's Directives, inconsistent with this regulation to be unlawful, an order that the Director's order to skin search all prisoners entering and leaving the institution on a routine basis was unlawful and further orders setting aside proceedings in Disciplinary Court against him for failing to obey a lawful order. On the interlocutory injunction application it was held that this regulation requires specific suspicion of a given individual "on reasonable grounds" before he may be searched. The word "inmate" is used in the singular; the word "is" in possession and not "may be" is used and the words "that person" are used. Stronger wording is required to justify general body search of the type indicated, however desirable, useful or even necessary such search may be.
Gunn v Yeomans and Caros - Unreported, June 11th, 1980 (FCTD)
	- At trial the plaintiff was successful and obtained (1) a declaration that any Commissioner's Directives or other subordinate orders inconsistent with the provisions of subsection 41(2) of the Penitentiary Service Regulations were unlawful to the extent of that inconsistency; (2) a declaration that the order given to him by the penitentiary officer on orders from the Director was not a lawful order; (3) that his conviction in disciplinary court on a charge of failing to obey a lawful order was wrong in law and a direction that said conviction be set aside and any record thereof expunged from the plaintiff's penitentiary record and file; and (4) that the injunction be made permanent and the defendant, their servants, agents and employees be enjoined from conducting by order or otherwise any searches of the plaintiff except in accordance with the Regulations.
Bryntwick v Yeomans and Rousseau - (1983), 1 CCC (3d) 131 (FCTD)
	- A prisoner's visiting rights with his common-law wife were suspended indefinitely because she refused to be subjected to a nude search. Because there were no grounds to support the search within the meaning of Regulation 41(2) and because the duty to act fairly was not complied with in relation to the visiting rights, the Court ordered visiting rights restored.
Weatherall v AG Canada et al; Conway v The Queen; Spearman v Disciplinary Tribunal, Collins Bay Penitentiary et al - (1989) 59 CR (3d) 247 (FCTD)
	- Section 41(2)(c) and subs 41(3) contravene the Charter in respect of strip searches. Section 41(2)(c) gives a very broad power of searching which purports to authorize what would amount to an "unreasonable" strip search as contemplated by s8 of the Charter. The only criteria imposed for any kind of search of an inmate by a staff member is that such member must "consider (s) 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. While it would not be appropriate to require warrants in such situations the regulations must, in the case of strip searches at least, be more precise. The court concluded that the regulations could properly define situations where strip searching can be done as a matter of routine and other situations where non-routine general strip searching of a certain group can be done to deal with a particular situation. Beyond that, the court was of the view, that the regulation should require that reasonable and probable grounds exist for believing that a particular inmate is in possession of contraband or other items endangering security. In cases other than routine strip searches, the regulations should specifically require either prior approval by a senior officer or a meaningful review by such officer of the reasons for, and conduct of, the search after it has taken place. Other forms of safeguards and limitations could be devised so long as they meet the general requirements of s8 of the Charter.
	Subsection 41(3) is invalid because, when read with para41 (2)(c), it discriminates on its face between male and female inmates. No evidence convinced the court that this was either consistent with s15 of the Charter nor that it was justifiable under s1 of the Charter. These provisions of the Regulations cannot be saved by restrictions which appear in the Commissioner's Directives as those Directives were not only not adequate in their formulation, but did not have the force of law. Consequently, s41(2)(c) and s41(3) were held to be invalid insofar as they related to strip searches. Furthermore, the presence of a female officer during a strip search of a male inmate in a non-emergency situation contravenes s12 of the Charter because it amounts to "cruel and unusual treatment" and because the regulation did not adequately limit this practice to emergency situations it was invalid for that reason as well.
AG Canada v Weatherall - (1989) 65 CR (3d) 27 (FCA)
	- Varying the lower court decision the Federal Court of Appeal found that s41(2)(c) of the Penitentiary Service Regulations infringes a male inmate's s8 Charter right to the extent that it authorizes the strip searching of male inmates in the presence of female corrections staff in non-emergency situations.
	The court stated lit p21 that:
		The authority contained in paragraph 41(2)(c) is limited to situations where a member considers that the action is "reasonable" either to 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.
The court held that on the pleadings, the strip searching of inmates in general had not been put in issue.
Warriner v Disciplinary Tribunal of Kingston Penitentiary - Unreported, December 7, 1990, No. T -963-89 (FCTD) (Butterworths No. 35161)
	- The prisoner brought an application for certiorari to quash the disciplinary tribunal's decision which found him guilty of al disciplinary offence (disobeying a lawful order). He claimed that the lawful order, to submit to a rectal cavity search, was an unreasonable search and violated s8 of the Charter.
	Upon completion of a contact visit at the institution, the guards ordered a cavity search of the prisoner, believing that the visitor passed contraband to the prisoner. The prisoner, who cooperated during two less intrusive searches conducted immediately after the visit, refused to comply.
	In first determining if the search was authorized by law, the court found that authority for the strip search demand comes from the commissioner's directives which are not considered to have the force of law. However, although the regulations (s41 of Penitentiary Service Regulations) do not place a limitation on the exercise of the authority to search, the commissioner is free to establish guidelines, for such searches as long as the search falls within the general purposes of the regulation. As long as the search is within the allowable limits of the act and regulations, then the search is authorized by law.
	Section 7 of the Charter (security to the person) is not applicable to issues which arise in relation to this search as it is general in nature. The more specific provisions of 28 (search and seizure) would apply.
	In analyzing a potential s8 violation, the Court found that: 1, the search was authorized by law in that the regulations deal specifically with searches of inmates; and 2, there is no issue as to the reasonableness of the manner of the search as it was never carried out. In assessing the reasonableness of the law itself, the Court found that the expectation of privacy is lower in the prison setting than within the community. Searches and inspections are common and necessary in a maximum-security prison. The evidence before the court from the Warden and an institutional physician to the effect that this procedure was required for the safety of inmates and staff and the good order of the institution, was uncontradicted and no evidence before the court questioned or rebutted their conclusions or beliefs. Neither of them was examined in relation to their affidavits. Consequently, the court concluded that the search there required, namely, an order to bend over to permit visual inspection of the anal cavity area as part of a strip search instituted as a matter of routine following an open contact visit, in light of the reasons underlying the establishment of that routine, does not constitute an unreasonable search contrary to s8 of the Canadian Charter of Rights and Freedoms.
41.1 (1) Where a member considers the requirement of a urine sample necessary to detect the presence of an intoxicant in the body of an inmate, he may required that inmate to provide, as soon as possible, such a sample as is necessary to enable a technician to make a proper analysis of the inmate's urine using an approved instrument.
(2) In any hearil1g in relation to a contravention of paragraph 39(i.1), evidence that a sample of urine taken and analyzed in the manner referred to in subsection (1) contains an intoxicant establishes, in the absence of evidence to the contrary or in the absence of a reasonable explanation of the presence of the intoxicant, that the inmate who provided the sample has contravened paragraph 39(i.1).
(3) In this section,
(a)	"approved instrument" means an instrument that is designed to make an analysis of a sample of urine and is approved by a directive; and
(b)	"technician'" means a person designated by the Commissioner to operate an approved instrument.
[SOR/85-412]
Legislative History - Section 41.1 was added by SOR/85-412, effective May 2, 1985.
Judicial Consideration -
Re Dion and The Queen - (1987) 30 CCC (3d) 108 (Que SC)
	- This section is invalid as being inconsistent with s7 of the Charter. The section as is presently worded purports to authorize any civil servant or employee of the Penitentiary Service to require any inmate to provide a urine sample as soon as that person considers such a requirement necessary to detect the presence of an intoxicant in the prisoner's body. This purports to give the Penitentiary Service officer the absolute power to require a urine sample even if the inmate does not present any danger of committing discipline breaches or acts linked to the absorption of intoxicants. The criteria of "reasonableness and probability" require a greater sense of responsibility on the part of an officer than the lesser criteria of "necessity". It is not sufficient for an officer to have a suspicion that a crime was committed. He must, on reasonable grounds, believe that a crime has been or will be committed. Consequently, this regulation cannot have the force of law as it gives arbitrary powers to those whose duty it is to apply it.
Re Hanson and the Disciplinary Board of the Prison for Women - Unreported, August 15, 1986
	- In the absence of guidelines in the regulations as to the requirement of reasonable and probable grounds, the regulation must be enforced in accordance with principles of fundamental justice. The principles of fundamental justice must be applied to an interpretation of this regulation in order to ensure that the regulation is not enforced in an arbitrary manner. On the facts, there were no reasonable and probable grounds for the order that Hanson submit to a urine sample and consequently, a charge of failing to obey a lawful order was dismissed.
Jackson v Joyceville Penitentiary Disciplinary Tribunal - (1990) 55 CCC (3d) 50 (FCTD)
	- After declining to provide a urine sample when ordered to do so by an institutional officer, the inmate was charged and convicted with refusing to obey a lawful order under s39(a) of the Penitentiary Service Regulations. The inmate then sought a declaration that s41.1 of the Penitentiary Service Regulations was contrary to the Charter.
	In the court's view it was not necessary for the disposition of this case to determine whether the disciplinary court had jurisdiction to determine Charter issues, and declined to decide the issue. However, the court held that s41.1 violated both ss8 and 7 of the Charter. Section 8 was violated because the regulation contained no standards or criteria to guide staff members and inmates as to when the demand for urine samples would be unreasonable. Requiring an inmate to give a urine sample was held to be an interference with the inmate's bodily integrity and could lead to psychological stress, which would deprive the inmate of security of his person as well. The risk of punishment for failing to comply with a demand for a sample was also an interference with the liberty of the inmate.
	Mr. Justice MacKay noted that though there was a limited privacy and protection of bodily integrity for those in a prison setting, that what remained of prisoner's rights should not be taken away except in accordance with the principles of fundamental justice. The lack of criteria for requiring a specimen combined with an absence of reasonable and probable cause for such an order violates the principles of fundamental justice.
	The court concluded that though the objective of regulation 41.1 related to pressing and substantial societal concerns, it is not a reasonable limitation within s1 of the Charter because it does not include any standards, criteria or circumstances for its application.
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