T-7558-82
Paul Thomas Bryntwick (Petitioner)
v.
Donald Yeomans, Commissioner of Penitentiaries
for Canada and René Rousseau, Director of the
Leclerc Institution (Respondents)
Trial Division, Walsh J.—Montreal, September
27; Ottawa, October 1, 1982.
Penitentiaries — Body searches — Visitor refusing to
submit to nude search — Visitation rights suspended —
Demand for search unfair and against Regulations — Nerv
ousness of visitor not "reason to believe" she had contraband
in her possession — Suspension order set aside upon petition
for certiorari — Penitentiary Service Regulations, C.R.C., c.
125!, s. 41(2), as am. by SOR/80-462.
Judicial review — Prerogative writs — Certiorari — Peni
tentiaries — Petition to set aside order suspending visitation
rights of petitioner's common law wife — Latter refusing to
submit to strip search — Whether certiorari proper remedy —
Regulations not complied with as no credible and justifiable
reason for visitor to be searched — Duty to act fairly notwith
standing decision administrative — Certiorari granted — Pen
itentiary Service Regulations, C.R.C., c. 1251, s. 41(2), as am.
by SOR/80-462 — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28.
This is a petition for writ of certiorari to set aside an order
suspending the visitation rights of the common law wife of the
petitioner, an inmate at the Leclerc Institution. The woman
was asked to submit to a nude search on the ground that she
appeared nervous. When she refused, her visitation rights were
suspended for three months. The petitioner argues that the
demand for a search was contrary to the Penitentiary Service
Regulations in that there was no "reason to believe" that she
had drugs or contraband in her possession.
Held, petition granted and order suspending visitation rights
set aside. The discretion in ordering searches was broadened
when the words of the Regulation were changed from "sus-
pects, on reasonable grounds" to "reason to believe" that a
visitor has contraband. Nevertheless, unrestricted body
searches are still not permitted. The Regulations were not
complied with because there did not exist a credible and
justifiable reason, with reference to the specific visitor, to be
searched. The nervousness of the visitor was not a sufficient
reason, particularly since it was explained by the imminent
death of her mother, of which the Institution was aware. There
is a duty to act fairly in the circumstances notwithstanding the
administrative nature of the decision and that duty may be
enforced by the Trial Division through the remedy of certiorari.
CASES JUDICIALLY CONSIDERED
APPLIED:
Nicholson v. Haldimand-Norfolk Regional Board of
Commissioners of Police, [1979] 1 S.C.R. 311; Mar-
tineau v. Matsqui Institution Disciplinary Board, [1980]
1 S.C.R. 602; Gunn v. Yeomans et al. (1979), 48 C.C.C.
(2d) 544; 104 D.L.R. (3d) 116 (F.C.T.D.); Gunn v.
Yeomans, et al., [198I] 2 F.C. 99 (T.D.).
DISTINGUISHED:
In re Penitentiary Act and in re Culhane, Federal Court,
T-2168-77, judgment dated October 6, 1977; State of
Hawaii v. Martinez, 580 P.2d 1282 (Sup. Ct. Hawaii
1978).
REFERRED TO:
Martineau et al. v.- The Matsqui Institution Inmate
Disciplinary Board, [1978] 1 S.C.R. 118.
COUNSEL:
Pierre L. Paquin for petitioner.
S. Barry for respondents.
SOLICITORS:
Brunet, Paquin, Danis & Brunet, Montreal,
for petitioner.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
WALSH J.: This is a petition for writ of certio-
rari by the petitioner, an inmate of the Leclerc
Institution, a minimum security prison in Laval in
the Province of Quebec who, before his imprison
ment, had lived for a number of years with his
common law wife, Francine Allard. On July 11,
1982, she paid him a visit at the Leclerc Institu
tion as she had been doing regularly during his
imprisonment but, after being admitted to the
Institution on this occasion she was asked to
submit to a nude search which she refused, as a
result of which she was escorted outside the prison
grounds, access being refused to her. Moreover,
she was advised that her right of visitation was
suspended indefinitely from that date.
The petitioner alleges that nude searches are
required for persons visiting a prisoner whose
name appears on a list of prisoners who are sus
pected of introducing contraband or drugs into the
penitentiary. The petitioner's name has never been
on this list prepared by the security service of the
penitentiary and he has never been suspected, nor
have his visitors, of having introduced contraband
or drugs. The petitioner alleges, therefore, that
there is no reasonable and probable motive for
believing that Mrs. Allard would do so, so as to
justify the nude search. It is alleged that by virtue
of the Regulations and Directives nude searches
can only be made when there is reason to believe
that the person to be searched has in her posses
sion drugs or contraband and, without this reason
able and probable motive, such a search is illegal
and unjustified and in excess of jurisdiction. By
virtue of the Regulations and the law the petition
er has a right to visits from his common law wife
for purposes of his rehabilitation and that the
indefinite suspension of such right is excessive,
abusive and disproportionate and is an illegal pun
ishment. It is further alleged that an enquiry was
held and that he was not heard or permitted to
make any representation which is contrary to the
pinciples of natural justice, and that the only
remedy which he has is by way of certiorari.
The affidavit of Mrs. Allard sets out that the
matron in the office of the security service of the
penitentiary did not, at the time, give her any
reasons for submitting to a nude search.
On July 16, 1982, after consulting his attorney,
the petitioner wrote a letter to Mr. R. Rousseau,
the Director of the Institution. In that letter he
pointed out that he had been informed that his
name did not appear on the said list nor was he
suspected of dealing or introducing contraband or
drugs into the Institution. He alleges he was
informed that what occurred was a spot check
undertaken by members of the personnel involved
on their own initiative.
The petitioner further states in the letter that his
own institutional record of 36 months is irre
proachable and his wife's character and back
ground is unimpeachable. She had formerly been a
journalist, a public relations department employee
of a Cégep and a school teacher until her mother
fell seriously ill some four years before.
Reference is made to the Penitentiary Service
Regulations, C.R.C., c. 1251, subsection 41(2)
which formerly read as follows:
41....
(2) Where the institutional head suspects, on reasonable
grounds, that an officer, employee, inmate or visitor to the
institution is in possession of contraband he may order that
person to be searched, but no such person, who is female, shall
be searched except by a female person.
By Order in Council 1638 of June 19, 1980' it was
amended so as to read:
41. ...
(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;
The petitioner contends, and I agree, that this
does not, in itself, authorize a spot check. In any
event the respondents do not contend that the
request to search Mrs. Allard was in the nature of
a spot check, but rather because according to the
matron who requested the check she "appeared
nervous" on the day in question.
The letter further alleges that the mother of his
common law wife, Mrs. Allard, is dying from
cancer and the situation was now so critical and
stressful that his wife herself had come under
medical supervision, which would account for her
nervousness. The officers in question who ordered
the search could not, of course, be expected to
know this, although on July 7, 1982, (4 days
previously) the petitioner had applied on humani
tarian grounds for temporary escorted absence
because of the terminal illness of his wife's mother,
and the need to tactfully discuss, among them
selves, pre-arrangements for her final wishes which
his wife could not herself emotionally handle at
that time. The name of the attending physician
was given and the application points out that
further information can be obtained from Mr.
André Harvey who conducted the community
assessment at his home and is aware of the
situation.
The Commissioner's Directive No. 249(6) of
April 30, 1982, defines strip search as follows:
... strip search - is a procedure which requires a person to
undress completely and be searched visually but not touched
except for head hair. In addition, all clothing and possessions
are searched.
1 SOR/80-462.
Paragraph 21 reads as follows:
21. A member may frisk search or strip search any visitor
where there is reason to believe that the visitor has contra
band in his possession. If the visitor refuses to be searched,
where offences under the Narcotic Control Act, Food and
Drugs Act and Criminal Code of Canada are suspected, he
may be turned over to local law enforcement authorities.
Paragraph 25 reads:
25. Except as provided for in paragraph 21., a visitor who
refuses to submit to any type of search, when requested,
shall be refused admission to or be escorted from the
institution property.
On July 20, 1982, the petitioner's attorney wrote
a letter to Martin Paquette, Chief of Social De
velopment of the Institution explaining the situa
tion and the reason for Mrs. Allard's apparent
nervousness and requesting that the right to visits
be reinstated. On July 23, the Director of the
Institution, Mr. René Rousseau, in reply to this
letter states that permission to enter the establish
ment was taken away from Mrs. Allard because of
her refusal to permit a nude search, and that such
a refusal is sufficient reason for denial of access
for three months minimum after which a new
request for admission can be studied. In a letter of
July 26, 1982, Mr. Rousseau points out that a
denial of admission resulting from a refusal to be
searched is not a suspension of visits but a refusal
of admission for a minimum of a three-month
period, and that this should not be confused with
the right of search which is made in accordance
with the Commissioner's Directives as well as the
Penitentiary Service Regulations. He adds that he
does not see why the petitioner's visitor should be
exempted from search because of his good behav
iour or because his name is not on a special list.
On August 13 the petitioner's attorney wrote a
letter in the form of a mise en demeure to restore
the right of visitation to Mrs. Allard within five
days, said letter being addressed to Mr. Rousseau,
to the Attorney General of Canada, the Honour
able Robert Kaplan and to Donald R. Yeomans,
Commissioner of Correctional Service of Canada.
After the service of the petition and immediately
prior to the hearing, an affidavit was submitted on
behalf of the respondents by Jean-Marc Lavoie,
Associate Director of Socialization at the Leclerc
Institution, taken in the absence of Mr. Rousseau.
He states, inter alia, that in recent years the use of
drugs in the Institution has been observed despite
the most careful measures to prevent their intro
duction, that Mrs. Beaudin, the matron requesting
the search, is one of the most experienced officers
in the Institution and that it was her responsibility
to decide whether to request the nude search or
not, that Mrs. Allard's refusal to submit to it
resulted in the suspension of her privileges, that
subsequently, a full study was made of the incident
and the administration reached the conclusion that
the matron's decision was not unreasonable, that
she had reason to believe that the visitor was a
carrier of contraband, that the decision was not
discriminatory nor abusive, and that it was taken
bearing in mind the maintenance of the organiza
tion, the discipline and the efficiency of the Cor
rectional Service.
Before the amendment to subsection (2) of sec
tion 41 of the Penitentiary Service Regulations
(supra) I had occasion to examine the question of
the right to strip search a prisoner against whom
no specific suspicions of the introduction of contra
band was suggested, when he was leaving the
prison temporarily for medical treatment. In
granting an interlocutory injunction restraining
further searches of the plaintiff's person, except
those in accordance with Regulation 2.31(2) (now
41(2)) of the Regulations, I had this to say [at
page 5491: z
The Regulation, s. 2.31(2) is, however, so worded that the
institutional head must suspect "on reasonable grounds" that
the "inmate ... is in possession" of contraband before he may
order "that person" to be searched (emphasis mine).
It is trite to say that there may be some suspicion, even
perhaps "reasonable" suspicion, that inmates generally may be
in possession of contraband at any given time—experience in
prisons so indicates. The Regulation, as drawn, would appear to
require specific suspicion of a given individual "on reasonable
grounds" before he may be searched. The word "inmate" is
used in the singular, the Regulation uses the word "is" in
possession not "may be" in possession, and the order is that
"that" person be searched. It would in my view require stronger
wording to justify a general body search of the type indicated of
all inmates on leaving or entering the institution, however
desirable, useful, or even necessary such a search may be. If
greater powers of search are necessary, as they may well be,
then the Regulation should be amended to provide for this.
2 Gunn v. Yeomans et al. (1979), 48 C.C.C. (2d) 544; 104
D.L.R. (3d) 116 (F.C.T.D.).
At a later stage in this same case my brother
Cattanach J. had occasion to find that the Com
missioner's Directive respecting such searches
inconsistent with the provisions of subsection 41(2)
was unlawful and that therefore the conviction of
Gunn on the charge that he failed to obey a lawful
order to submit to the strip search was wrong in
law and must be set aside, and furthermore that
the defendants were enjoined from conducting or
otherwise carrying out any searches of the plain
tiff's person except in accordance with subsection
41(2) of the Penitentiary Service Regulations.'
The judgment of Cattanach J. stated at page 110:
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 I do 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.
It was as a result of these judgments that the
Penitentiary Service Regulation was amended and
reads as it now does (supra) so as to use the words
"reason to believe" rather than "suspects, on
reasonable grounds".
While this undoubtedly broadens the discretion
given to the prison authorities it is evident that
even under the new wording unrestricted body
searches would not be permitted. There has to be a
reason for requiring the body search, and it is my
view that despite the amendment, the reason in
itself must be, if not "reasonable", at least credible
and justifiable with reference to the specific visitor
to be searched, since to interpret the amended
section otherwise would result in an unrestricted
right to require a body search of each and every
visitor on the sole unrestricted discretion of a
matron or officer who happens to be on duty when
the visitor seeks admittance. Such a reason does
not seem to exist in the present case since the only
reason given, and this after the event, by way of
justification was that the visitor appeared nervous.
Many visitors visiting a penitentiary may exhibit
signs of nervousness and, in the present case, a
3 Gunn v. Yeomans, et al., [1981] 2 F.C. 99 (T. D.).
reasonable explanation has been given as to Mrs.
Allard's personal family problem which might well
have accounted for her nervousness. While it is
true that the matron was no doubt unaware of this
(although the prison authorities had some
knowledge of the family situation 4 days before) it
appears very tenuous to justify a body search
which is a humiliating and degrading procedure on
such a flimsy excuse. It is evident that the Regula
tion, even .as amended, would not justify spot
checks although they might well be very desirable
from the point of view of prison administration.
While, as Mr. Rousseau points out, the fact that a
prisoner himself is well conducted and has had no
history of receiving contraband does not in itself
indicate that a visitor might not seek to introduce
same, whether for his use or for the use of other
prisoners, Mrs. Allard had been a frequent visitor
of the petitioner in the past, and it is conceded that
there was nothing, other than apparent nervous
ness on the day in question, to suggest that she
would be introducing contraband by way of drugs
or otherwise on this occasion. The fact that there is
a list of prisoners who are under suspicion and
whose visitors are regularly searched and that the
petitioner's name did not appear on it is significant
only in a negative sense. Certainly the list is not
exclusive nor would its existence prevent search of
visitors of other prisoners. No doubt the names on
the list have to be changed and updated from time
to time. However, the absence of his name from
such a list indicates that it could not be as a result
of any suspicion of him that a search of Mrs.
Allard was ordered on this occasion.
A subsequent investigation merely backed up
and supported the on the spot decision, as might be
expected, unless the authorities were prepared to
concede that the amended Regulation now permits
spot checks or checks on flimsy grounds of suspi
cion. However, the fact that the petitioner was not
called upon to be heard during this internal inves
tigation does not cause any difficulty. He was not
present when the incident took place and could
contribute nothing to add to the full representa
tions made by him and his attorney in writing. The
investigation was an administrative procedure.
I would go so far as to say that if the original
order for a body search was justified, and therefore
the refusal to submit to same unjustified, then the
suspension of visitation periods for three months
thereafter would not be unreasonable. If a visitor is
justifiably suspected of introducing contraband
then a refusal to be searched in order for the
suspicion to be verified or disproved would itself be
suspicious and would certainly add to the original
grounds for suspicion, justifying the refusal to
permit the visitor to be admitted for a three-month
period thereafter before the refusal of admission is
reviewed. The case must therefore turn on whether
the original demand for search was justifiable
under the Regulations.
In the present case, unlike the second Gunn
action before Cattanach J., there is no conflict
between the Directives and the Regulations. The
amended Directive in fact carefully follows the
wording of the Regulation, using the words "rea-
son to believe" as in the amended Regulation.
One can readily accept, as pointed out in the
affidavit of Mr. Jean-Marc Lavoie on behalf of the
respondents, that there has been a drug problem at
the Leclerc Institution, notwithstanding the steps
that have been taken to prevent their introduction.
It was explained by counsel during the hearing
that visitors are not separated by any partition
from the prisoner they are visiting, nor are they in
a separate room with the prisoner and 'a guard;
instead visitation takes place in a room in which a
number of prisoners may be receiving visitors at
the same time with a guard above the room over
seeing these visits. Under these conditions it is not
impossible that a visitor who might quite naturally
be touching hands with the prisoner or perhaps
embracing could have an opportunity of delivering
contrabrand without attracting the guard's atten
tion. There are 478 prisoners in the Institution and
the problems of the penitentiary service in main
taining order in it are substantial. Nevertheless,
the Regulations and Directives resulting from
them, which in this case do not conflict with the
Regulation 41(2) must be scrupulously observed
and the rights of search cannot exceed those pro
vided for therein.
Some discussion took place as to whether visita
tion is a right or a privilege and also as to whether
certiorari is a proper remedy and whether it can be
applied.
In the case of In re Penitentiary Act and in re
Culhane, an unreported judgment of the Trial
Division dated October 6, 1977, bearing No.
T-2168-77, it was held that [at pages 3-5]:
... there is no statutory right, specifically permitting a member
of the public to visit an institution and its inmates .... If there
are any vested rights or "privileges" expressed or implied in the
legislation, in respect of visiting ... those privileges are those of
the individual inmates and not those of members of the public
at large.... a decision, on security grounds, directing that a
certain member or members of the public shall not be permit
ted to visit the prison, or inmates in it, is an administrative
decision which in its very nature does not require the so-called
notice of the matters charged or alleged ... nor the right to a
so-called hearing. Nor does it warrant interference by this
Court, by way of certiorari or other prohibitive remedy, where
it is merely asserted the decision was arbitrary, unreasonable or
unfair.
This decision is authority for the proposition
that the right or privilege of visitation is one
pertaining to the prisoner himself and not to the
visitor so that the present proceedings were proper
ly brought in the name of the prisoner, Bryntwick.
While the decision was undoubtedly an adminis
trative one which, as the judgment points out,
would not warrant interference by a court by way
of certiorari, the judgment so concludes on the
basis that the decision was not arbitrary, unreason
able or unfair. In the present case it is the petition
er's contention that the Regulations were not com
plied with, not merely that the decision was
arbitrary, unreasonable or unfair.
The petitioner contends that visitation of prison
ers is a "right" and not merely a "privilege" and
refers to a handbook issued to prisoners by the
Correctional Service of Canada entitled "Inmate
Rights and Responsibilities". The contents of the
pamphlet are intended for information only and
are not of course a substitute for the law and
regulations. Under the heading "Programs Gener
ally", paragraph 11(f) states:
The visiting and correspondence privileges that may, in accord
ance with directives, be permitted to inmates shall be such as
are, in all the circumstances, calculated to assist in the reforma
tion and rehabilitation of the inmate.
It is interesting to note that although the pamphlet
refers to "Inmate Rights and Responsibilities" this
paragraph refers to visiting "privileges". An
American authority to which the Court was
referred dealing with a somewhat similar issue is
that of State of Hawaii v. Martinez, in the
Supreme Court of Hawaii 4 in which the appellant
had been convicted of possession of marijuana on
the basis of evidence obtained when she was
searched by prison officials as a condition of entry
to the prison. The appeal challenged on constitu
tional grounds the admissibility of the evidence
obtained by the search. The matron who had made
the search testified that although she had noticed
signs of drug intoxication in the appellant's
appearance and behaviour, her decision to subject
the appellant to a strip search was non-discretion
ary and was based on the rules and regulations of
the prison. The Court found, however, no such rule
of the prison. The judgment stated in part at page
1286:
We consider that a fundamental difference exists between
the detention and search of an individual engaged in the
exercise of a constitutional or statutory right, such as travel on
city streets or across the border, and search without detention
imposed as a condition of admission of the individual into a
prison. In the first case, the liberty interest and expectation of
privacy of the individual are substantially unaffected by the
activity engaged in, and the burden is heavy upon government
to justify the invasion. But appellant has not suggested that she
possessed a constitutional or statutory right to enter the prison.
The implication is strong from the record that she applied for
entry with awareness that she would be routinely subjected to a
strip search. To have avoided the search appellant need only
have refrained from seeking admission, a situation far different
from being, in the course of otherwise lawful travel, intercepted
and forced to undergo search as a condition to continuing that
travel.
Later on the same page we find the statement:
Without suggesting that the constitutional protections of
prison visitors may not exceed those enjoyed by prison inmates,
we consider that an individual who seeks entry into a prison in
a purely personal capacity may not claim immunity from
security measures which are reasonable as applied to the prison
inmates.
Reference was also made to the headnote on
page 1282, which read in part:
... where visitor who applied for admission to prison was aware
of practice of strip search from prior admissions, consent to
strip search would be implied ....
Individual who seeks entry into a prison in purely personal
capacity may not claim immunity from security measures
which are reasonable as applied to prison inmates.
4 580 P.2d 1282 (Sup. Ct. Hawaii 1978).
This case is not directly in point however since the
visitor, Mrs. Allard, was certainly not aware of
any practice whereby she would be subjected to a
strip search prior to admission from which her
consent to such a search could be implied when she
sought admission. Moreover these cases do not
apparently deal specifically with interpretation or
applicability of specific prison regulations formu
lated for visitors.
Extensive reference was made to the leading
Canadian case of Martineau v. Matsqui Institu
tion Disciplinary Board.' While it dealt with con
finement to the Penitentiary Special Corrections
Unit as a result of a flagrant and serious discipli
nary offence, which is a more serious matter than
a demand that a visitor submit to a strip search,
some of the same principles apply, specifically the
use of a writ of certiorari in the Trial Division in
this Court as an appropriate remedy. My brother,
Mahoney J., in the Trial Division had found that
the Court had jurisdiction to quash the order by
certiorari if it was of the view that the tribunal
had not acted fairly, although on the preliminary
point of law relating to jurisdiction before him he
did not have to decide whether, on the facts of the
case, the respondent had acted in an unfair
manner. This was reversed by the Court of Appeal
which had already, on a section 28 application
which was upheld in the Supreme Court 6 found
that it had no jurisdiction to set aside the order, on
the ground that the convictions were administra
tive decisions not required to be made on a judicial
or quasi-judicial basis. The judgment in the appeal
conluded that the convictions in question could,
therefore, not be attacked under section 18 of the
Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, by a writ of certiorari.
The Supreme Court after a very complete
review of existing jurisprudence including its own
decision in the case of Nicholson v. Haldimand-
Norfolk Regional Board of Commissioners of
Police' which established the duty to act fairly as
being more extensive than applying rules of natu-
5 [1980] 1 S.C.R. 602.
6 Martineau et al. v. The Matsqui Institution Inmate Disci
plinary Board, [1978] 1 S.C.R. 118.
7 [ 1979] 1 S.C.R. 311.
ral justice, found that procedural fairness extends
well beyond making a distinction between adminis
trative and judicial and quasi-judicial functions so
that it is possible to extend the ambit of certiorari
to decisions not strictly judicial or quasi-judicial.
The judgment of Dickson J., at page 628, states:
It seems clear that although the courts will not readily
interfere in the exercise of disciplinary powers, whether within
the armed services, the police force or the penitentiary, there is
no rule of law which necessarily exempts the exercise of such
disciplinary powers from review by certiorari.
At pages 629-630 he states:
4. An inmate disciplinary board is not a court. It is a tribunal
which has to decide rights after hearing evidence. Even though
the board is not obliged, in discharging what is essentially an
administrative task, to conduct a judicial proceeding, observing
the procedural and evidential rules of a court of law, it is,
nonetheless, subject to a duty of fairness and a person
aggrieved through breach of that duty is entitled to seek relief
from the Federal Court, Trial Division, on an application for
certiorari.
In the present case we are not of course concerned
with a formal decision by a prison disciplinary
board but only an on the spot decision by the
matron who ordered the strip search, which was
later supported by an informal administrative
investigation by the prison authorities. The same
duty of fairness would seem to apply however. This
appears from the next paragraph of the judgment
on page 630 which reads as follows:
5. It should be emphasized that it is not every breach of
prison rules of procedure which will bring intervention by the
courts. The very nature of a prison institution requires officers
to make "on the spot" disciplinary decisions and the power of
judicial review must be exercised with restraint. Interference
will not be justified in the case of trivial or merely technical
incidents. The question is not whether there has been a breach
of the prison rules, but whether there has been a breach of the
duty to act fairly in all the circumstances. The rules are of
some importance in determining this latter question, as an
indication of the views of prison authorities as to the degree of
procedural protection to be extended to inmates.
It appears to me that in the present case whether
the petitioner's visitations by his common law wife
are considered as a right or a privilege, she was
unfairly asked to subject herself to the indignity of
a strip search based on reasons which, to say the
least, are very unsubstantial and which were not
even communicated to her, and that, moreover,
singling her out on this occasion for such a search
was in contravention of subsection 41(2) of the
Penitentiary Service Regulations, as amended, and
the Directives issued by virtue thereof, as there
was no legitimate "reason to believe" that she had
contraband in her possession. I further find that
certiorari is the proper remedy in the circum
stances and therefore maintain the petition with
costs and set aside and annul the order issued to
suspend indefinitely the visits of Mrs. Francine
Allard to her common law husband, the petitioner
Paul Thomas Bryntwick and that permission to
resume such visits be re-established without delay.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.