Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872

Philip Conway Appellant

v.

Her Majesty The Queen Respondent

and

The Attorney General for Ontario, the Attorney General of Quebec, the Attorney General of British Columbia, the Coalition of Provincial Organizations of the Handicapped, the Women's Legal Education and Action Fund, and the Minority Advocacy and Rights Council Interveners

Indexed as: Weatherall v. Canada (Attorney General)

File No.: 22633.

1993: March 25; 1993: August 12.

Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, McLachlin, Iacobucci and Major JJ.

on appeal from the federal court of appeal

Constitutional law ‑‑ Charter of Rights ‑‑ Life, liberty and security of the person ‑‑ Prisoners ‑‑ Whether frisk searches and unannounced patrols of cells in male prisons by female guards infringe s. 7 of Canadian Charter of Rights and Freedoms.

Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search and seizure ‑‑ Prisoners ‑‑ Whether frisk searches and unannounced patrols of cells in male prisons by female guards infringe s. 8 of Canadian Charter of Rights and Freedoms.

Constitutional law ‑‑ Charter of Rights ‑‑ Equality rights ‑‑ Prisoners ‑‑ Female prison inmates not subject to cross‑gender frisk searches and surveillance ‑‑ Whether frisk searches and unannounced patrols of cells in male prisons by female guards infringe s. 15 of Canadian Charter of Rights and Freedoms.

Prisons ‑‑ Prisoners' rights ‑‑ Frisk searches and surveillance ‑‑ Whether frisk searches and unannounced patrols of cells in male prisons by female guards infringe ss. 7, 8 and 15 of Canadian Charter of Rights and Freedoms.

A prison inmate challenged in the Federal Court, Trial Division the constitutionality of frisk searching and patrolling of cell ranges conducted in male prisons by female guards. The frisk search consists of a hand search of a clothed inmate from head to foot. Touching of the genital area, although not specifically precluded, is avoided. The surveillance patrols consist of regular scheduled cell patrols ("counts") and unannounced patrols conducted at random times every hour ("winds"). The inmate objected to the cross‑gender touching that occurs during a frisk search and to the female guards' possible viewing of inmates while undressed or while using the toilet during counts and winds. The trial judge concluded that the cross‑gender frisk searches did not violate ss. 7, 8 and 15 of the Canadian Charter of Rights and Freedoms but that the winds conducted by female guards constituted an invasion of privacy of male inmates contrary to s. 8. The Federal Court of Appeal set aside the judgment, holding that neither the cross‑gender frisk searches nor the cross-gender winds were unconstitutional.

Held: The appeal should be dismissed.

The frisk search, the count and the wind are all practices necessary in a prison for the security of the institution, the public and the prisoners themselves. The possible inappropriate effects of these practices are minimized by the provision of special training to ensure they are professionally executed with due regard for the dignity of the inmate. A substantially reduced level of privacy is present in prison ‑‑ a prison cell is expected to be exposed and to require observation ‑‑ 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, s. 8 of the Charter is not called into play; nor is s. 7 implicated.

It does not follow from the fact that female prison inmates are not subject to cross-gender frisk searches and surveillance that these practices result in discriminatory treatment of male inmates. Equality under s. 15(1) of the Charter does not necessarily connote identical treatment; in fact, different treatment may be called for in certain cases to promote equality. Equality, in the present context, does not demand that practices which are forbidden where male officers guard female inmates must also be banned where female officers guard male inmates. Given the historical, biological and sociological differences between men and women, it is clear that the effect of cross‑gender searching is different and more threatening for women than for men. In any event, even if this different treatment amounts to a breach of s. 15(1), the practices are saved by s. 1 of the Charter. The important government objectives of inmate rehabilitation and security of the institution are promoted as a result of the humanizing effect of having women in these positions. Moreover, Parliament's ideal of achieving employment equity is given a material application by way of this initiative. The proportionality of the means used to the importance of these ends would thus justify the breach of s. 15(1), if any.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 7, 8, 15.

APPEAL from a judgment of the Federal Court of Appeal, 1990 CanLII 8109 (FCA), [1991] 1 F.C. 85, 112 N.R. 379, 78 C.R. (3d) 257, 49 C.R.R. 347, 58 C.C.C. (3d) 424, reversing in part the judgment of the Trial Division, 1987 CanLII 9455 (FC), [1988] 1 F.C. 369, 11 F.T.R. 279, 59 C.R. (3d) 247, 32 C.R.R. 273. Appeal dismissed.

Fergus J. O'Connor and Peter Napier, for the appellant.

Brian J. Saunders and James R. Hendry, for the respondent.

M. David Lepofsky and Dianne Dougall, for the intervener the Attorney General for Ontario.

Madeleine Aubé, Gilles Laporte and Stéphane Marsolais, for the intervener the Attorney General of Quebec.

Frank A. V. Falzon, for the intervener the Attorney General of British Columbia.

Anne M. Molloy and David Baker, for the intervener COPOH.

Elizabeth J. Shilton, Arleen V. Huggins and Karen Schucher, for the intervener LEAF.

Raj Anand and Beth Symes, for the intervener the Minority Advocacy and Rights Council.

//La Forest J.//

The judgment of the Court was delivered by

La Forest J. -- In this appeal from the Federal Court of Appeal, 1990 CanLII 8109 (FCA), [1991] 1 F.C. 85, the appellant challenges the constitutionality of frisk searching and patrolling of cell ranges conducted in male penitentiaries by female guards pursuant to ss. 7, 8 and 15 of the Canadian Charter of Rights and Freedoms.

The frisk search consists of a hand search of a clothed inmate, from head to foot, down the front and rear of the body, around the legs and inside clothing folds, pockets and footwear and includes searching by use of hand-held scanning devices. Although touching of the genital area is not specifically precluded in this type of search, it is avoided; the appellant testified that he had never been touched in the genital area during a frisk. The frisk search ordinarily lasts five seconds, although on occasion, might take up to fifteen. The patrolling practices challenged by the appellant are twofold: the "count" and the "wind". Counts are performed regularly at four scheduled times daily. An officer first announces the count at the top of the particular range to be counted, to let the inmates know that the count is starting, and then walks down the range looking into each cell for two or three seconds in order to ensure that the inmate is accounted for and is alive and well. Winds are conducted once an hour but, in contrast, are conducted at random times and are unannounced. This surveillance technique is performed in this way to preserve an element of surprise in order to verify that the inmates are not engaged in any activities detrimental to the good order and security of the institution. In practice, the first inmate on the range to see the officer alerts the other inmates to the wind.

The appellant objected to the cross-gender touching that occurs during the frisk search and to the female guards' possible viewing of inmates while undressed or while using the bathroom facilities in their cells during counts and winds. During oral argument, counsel for the appellant abandoned its objection to the counts, recognizing that the inmates are sufficiently warned of the upcoming surveillance to avoid these results.

The possible inappropriate effects of the practices are minimized by the provision of special training to ensure they are professionally executed with due regard for the dignity of the inmate. Few complaints are received from inmates regarding invasions of privacy by virtue of having been searched by a female officer. Regarding the winds, the occasions when an inmate might be seen unclothed or tending to personal functions are rare and fleeting: one or two times a year, according to the appellant, for the two or three seconds it takes a guard to view the cell. Modesty barriers, which are placed in front of the cell toilets so that officers can only view the inmates from the waist up while using the facilities, are present in certain cell blocks.

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, s. 8 of the Charter is not called into play; nor is s. 7 implicated.

It is also doubtful that s. 15(1) is violated. In arguing that the impugned practices result in discriminatory treatment of male inmates, the appellant points to the fact that female penitentiary inmates are not similarly subject to cross-gender frisk searches and surveillance. The jurisprudence of this Court is clear: equality does not necessarily connote identical treatment and, in fact, different treatment may be called for in certain cases to promote equality. Given the historical, biological and sociological differences between men and women, equality does not demand that practices which are forbidden where male officers guard female inmates must also be banned where female officers guard male inmates. The reality of the relationship between the sexes is such that the historical trend of violence perpetrated by men against women is not matched by a comparable trend pursuant to which men are the victims and women the aggressors. Biologically, a frisk search or surveillance of a man's chest area conducted by a female guard does not implicate the same concerns as the same practice by a male guard in relation to a female inmate. Moreover, women generally occupy a disadvantaged position in society in relation to men. Viewed in this light, it becomes clear that the effect of cross-gender searching is different and more threatening for women than for men. The different treatment to which the appellant objects thus may not be discrimination at all.

In any event, even if one were to look at this different treatment as amounting to a breach of s. 15(1), the practices are saved by s. 1 of the Charter. The assignment of women to the surveillance of male inmates, with all of the resultant searching and patrolling duties, is a rather recent phenomenon. The important government objectives of inmate rehabilitation and security of the institution are promoted as a result of the humanizing effect of having women in these positions. Moreover, Parliament's ideal of achieving employment equity is given a material application by way of this initiative. The proportionality of the means used to the importance of these ends would thus justify its breach of s. 15(1), if any.

I would therefore dismiss the appeal with costs.

Appeal dismissed with cost.

Solicitors for the appellant: O'Connor, Bailey & Napier, Kingston.

Solicitor for the respondent: John C. Tait, Ottawa.

Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General, Toronto.

Solicitor for the intervener the Attorney General of Quebec: The Department of Justice, Ste‑Foy.

Solicitor for the intervener the Attorney General of British Columbia: The Ministry of the Attorney General, Victoria.

Solicitor for the intervener COPOH: Anne Molloy, Toronto.

Solicitors for the intervener LEAF: Cavalluzzo, Hayes & Shilton, Toronto.

Solicitors for the intervener the Minority Advocacy and Rights Council: Scott & Aylen, Toronto.