Your wife was previously placed on screened visits as a result of her readings on the ION scanner and was asked to provide six clean tests prior to being placed on open visits. After several attempts she did this and was placed back on screened visits and permitted access to the PFV's. On the day of the PFV, your wife indicated on the ION scanner at three times higher than the threshold level. As a result your PFV was cancelled.

The Visits Review Board again reviewed your wife's visiting status after your PFV was cancelled. Based on your wife's history of indicating on the ION scanner, there are reasonable grounds to believe that she is engaging in criminal activity. The risk that this presents to the Institution is unacceptable. In order to manage this risk, your wife has again been placed on screened visits and has been asked to provide six clean tests through the ION scanner to indicate to the staff that she is not involved in or handling illegal substances. (Response to First Level Grievance. February, 1998.)

Mr. Whitmore then appealed to the second level grievance at Regional Headquarters, pointing out that he still had not received a copy of any written policy regarding the use of sanctions for hitting on the IONSCAN which authorized the action taken against his wife; furthermore, no other visitor had been required to complete six clean passes through the IONSCAN before being allowed to resume open visits. He argued that the cancellation of the PFV was punishment enough. The Regional Grievance Co-ordinator denied the second level grievance on the following grounds:

I concur with the decision by Kent Institution staff to place your wife on screened visit given her ongoing positive indications on the IONSCAN . . . the decision to request six clean tests on the ION scanner was taken in consultation with our legal department at National Headquarters. You request written policy on the use of the ION scanner. I have therefore attached a copy of Commissioner's Directive 585 National Drug Strategy which indicates the Correctional Service of Canada's position on drugs in our penitentiaries. There is no written policy regarding the ION scanner as it is a tool used to assist in the application of the aforementioned Commissioner's Directive and every case is reviewed on its own merit. (Response to Second Level Grievance. March 3, 1998.)

The statement in the second level grievance that there was no written policy regarding the ION scanner was clearly in error given the existence of the National Standing Order and its replication in Kent Institution's own standing order. Mr. Whitmore in fact obtained a copy of the Kent standing order after filing the second level grievance and in his appeal to the Commissioner of Corrections at the third level of the grievance procedure, he cited the provisions of that standing order and argued that it left no discretion to apply a further level of sanctions such as was applied in his wife's case. He also pointed out that he had participated in voluntary urinalysis since 1995 and he provided at least sixteen clean urinalysis tests, including eleven since June of 1997. He wrote:

Whatever the IONSCAN says it is obvious that is has nothing to do with what is going on in the Institution. My wife and I were able to receive counselling through the Institution and had built a support network which has now been taken away. Whatever someone does or does not do on the street is of no business to the CSC. I have demonstrated by urinalysis that I do not present a risk to the Institution and my wife hitting on the IONSCAN has nothing to do with my behaviour in the Institution. By screening my visits, it is interfering with my contact with my family support and counselling with my son and wife. Kent has proven that its VRB is arbitrary and unfair and unreasonable in its practice. They refuse to let me attend and present a case for my wife. (Third Level Grievance dated April 10, 1998).

Mr. Whitmore's third level grievance was denied by National Headquarters on the following grounds:

We have carefully examined your grievance presentation and the rationale for the above-mentioned decision, and we believe that this decision is valid and justified under the circumstances. There were reasonable grounds to believe that your wife was engaged in illegal activity, and in order to effectively manage the risk the situation presented, it was deemed necessary to place her on screened visits and to request that she provides six clean tests through the ION scanner, prior to reinstating her open visit status.

We note that your wife has since completed the six clean tests required and that her open visit status was restored on 98-04-17. We also note that you and your wife have had numerous visits since then and that she continues to test clean on the ION scanner. Since this issue is now resolved, no further action is necessary at this level. (Response to Third Level Grievance. May 5, 1998)

This was not, however, the end of the matter. On two occasions in May, 1998, on the 21st and the 27th, Mrs. Whitmore registered hits on the IONSCAN for cocaine and on both occasions was denied her visit with her husband. On June the 2nd the visit review board met and suspended Mrs. Whitmore's visiting for thirty days. In a written notification to Mrs. Whitmore, the chairperson of the visit review board gave as the reason for the decision "the pattern of indicating on the ION scanner that you have established clearly indicates that you are in direct contact with illegal substances. This presents an unacceptable risk to the security of this Institution. Upon completion of the thirty day suspension, you will have to submit an application for open visits." (Letter from Kent Visit Review Board to Mrs. Whitmore, June 3, 1998)

It would be difficult to dispute on these facts that Mrs. Whitmore was on various periods between July, 1997 and May, 1998 in close proximity to drugs, particularly cocaine. However, at no time during this period did the Institution have sufficient grounds to believe that she had drugs on her person for the purpose of introducing them into Kent Institution so as to justify a request that she submit to a strip search. During this period, Mr. Whitmore consistently gave clean urinalysis samples, although the Institution believed on the basis of informant information that he remained involved in the drug trade and that he was arranging, through other prisoners and their visitors, to introduce drugs into the Institution. However, Mr. Whitmore's drug of choice was heroin and there was little, if any, trade in cocaine within Kent.

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