The "Bend Over" Rule -- The Constitutional Framework

At the beginning of this chapter, I set out the critical line of inquiry for determining whether a prison search is constitutionally permissible. That inquiry hinges on s. 8 of the Charter and requires an analysis of whether a particular search power or the manner in which that power is exercised constitutes an "unreasonable search." The Supreme Court in its 1987 decision in R. v. Collins stated that "a search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable" ( [1987] 1 S.C.R. 265 at 278). The first of these requirements is met with regard to the "bend over" rule, since the CCR Regulations authorize both investigative and routine strip searches under certain circumstances and specifically state that as part of the "prescribed manner" for carrying out a strip search, a prisoner may be required to "bend over or otherwise enable a staff member to perform a visual inspection."

The second requirement is that the law authorizing the search itself be reasonable. The Supreme Court jurisprudence on this aspect of reasonableness has hinged the analysis on a purposive approach to the value protected by s. 8 of the Charter : "a reasonable expectation of privacy." In determining what that is, an assessment must be made as to whether the individual's interest in being left alone is outweighed by the government's interest in intruding on privacy. Just what that means in the prison context has been the subject of court decisions in both Canada and the United States.

The U.S. Supreme Court in Bell v. Wolfish, while assuming that prisoners retain some measure of Fourth Amendment rights -- guaranteeing protection from unreasonable search and seizure -- stated that in determining whether a particular prison search was reasonable the courts "must consider the scope of the particular intrusion, the manner in which it was conducted, the justification for initiating it, and the place in which it was conducted" ( (1979) 441 U.S. 520 at 559). A court engaged in this balancing must evaluate "prison practice . . . in light of the central objective of prison administration, safeguarding institutional security," and "prison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgement are needed to preserve internal order and discipline and to maintain institutional security" (at 547). The U.S. Supreme Court, in Wolfish, upheld strip searches involving visual inspection of body cavities that were conducted after every contact visit in a pre-trial detention centre. Following Wolfish, U.S. courts have found prison strip searches to be "reasonable" under the Fourth Amendment for prisoners entering or leaving living units, the prison law library, the infirmary, or a segregation unit and also for prisoners leaving the units' visiting rooms after receiving visitors ( Arruda v. Fair, 710 F.2d 886 (1st Cir. 1983) ; Peckham v. Wisconsin Department of Corrections 141 F.3d 694 (7th Cir. 1998) ). While the U.S. courts in Arruda recognized "the severe if not gross interference with a person's privacy that occurs when guards conduct a visual inspection of body cavities" (710 F.2d 886 at 887), and the Supreme Court in Wolfish acknowledged that this practice "instinctively" caused it "the most pause" (441 U.S. 520 at 558),strip searching under the circumstances and in the manner authorized by the CCRA has passed constitutional muster in the United States.

Canadian courts, like their U.S. counterparts, have acknowledged that while prisoners do not forfeit the right to privacy when they enter through prison gates, the expectation of privacy is much diminished by the fact of incarceration and the realities of correctional administration. The issue has come before the courts in a variety of contexts, including a challenge to the strip-search procedures protested by Jason Gallant.

In the Weatherall case, prisoners challenged the constitutionality of frisk and strip searching and the patrolling of cell ranges conducted by female guards in male prisons. Prisoners objected to the cross-gender touching that occurs during a frisk search and to the female guards' possible viewing of prisoners while undressed or while using the toilet during counts and "winds" (random patrols of a cell block or living unit). Mr. Justice Strayer, after referring to Bell v. Wolfish, came to this conclusion on the reasonable expectation of privacy that Canadian prisoners can expect and the framework of a regulatory scheme that would ensure that this expectation would not be unconstitutionally infringed.

. . . The evidence satisfies me that a convicted inmate cannot reasonably expect anything like the respect for privacy in respect of bodily searches that a non-inmate would normally be entitled to expect: that is, one of the limitations on his normal rights implicit in conviction and imprisonment is his subjection to searches of his person for the protection of security and good order of the institution and its inmates. Nevertheless, such searches should be subject to some control to ensure that they are truly used for the purposes which justify this infringement of normal human rights. I have concluded that while there is a place for routine skin searches without the need for prior authorization specific to that search, and without the need to ensure reasonable and probably cause to suspect the particular inmate searched to be concealing some forbidden item, the circumstances in which such routine searches are authorized should be laid down by regulation. Such rules will have to be, in themselves, reasonable and in identifying situations in which, by reason of probability of, or opportunity for, concealment of contraband, or the need for deterrence of smuggling, a routine strip search is justified in the public interest . . . In short, it is my view that skin searches (but not frisk searches) are so intrusive of human dignity and privacy that there must be some criteria laid down for their use. ( Weatherall v. Canada (1988) 1 F.C. 369 at 394-95)

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