This case concerned the constitutionality of frisk searching and patrolling conducted in men’s prisons by female guards.
LEAF intervened at the Supreme Court of Canada.
Philip Conway, who was incarcerated, challenged the constitutionality of frisk searching and patrolling conducted in men’s prisons by female guards. In particular, Mr. Conway highlighted the touching that occurs during a frisk search and the possibility that female guards on patrols might see male inmates undressed or using the toilet. The trial judge concluded that the frisk searches did not violate ss. 7, 8 or 15 of the Charter, but that unannounced patrols were an invasion of privacy under s. 8. The Federal Court of Appeal held that neither the searches nor the patrols violated Mr. Conway’s Charter rights. He appealed to the Supreme Court of Canada.
LEAF argued that the state had a constitutional obligation to respect and protect the dignity of the socially powerless, which included incarcerated individuals. However, Mr. Conway had not put forward grounds for objecting to the participation of female guards in searches and patrols that provided a constitutional basis for distinguishing between male and female guards. Limitations on the range of duties performed by male guards in women’s prisons did not implicate the sex equality rights of incarcerated men.
LEAF also argued that women were disadvantaged in employment, including through their exclusion and under-representation in positions as correctional officers. Any resolution of the case which limited women’s roles and assignments in prisons would negatively impact their opportunities for equal pay, advancement, and dignity and respect in the workplace.
The Supreme Court held that there was a reduced level of privacy in prisons. Incarcerated persons did not have a reasonable expectation of privacy in searches and patrols. Given the historical, biological, and sociological differences between men and women, the effect of cross-gender searching was different for women than men. Any violation of s. 15 of the Charter would be saved under s. 1.
LEAF is grateful to Elizabeth Shilton, Arleen Huggins and Karen Schucher, counsel in this case.
Download the factum here.
Read the Supreme Court of Canada’s decision here.
Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].