Body cavity search off limits
Guards crippled as Ashley Smith choked herself
TORONTO — Melissa Mueller was just the latest witness at the Ashley Smith inquest to cite the case that has attained holy status within the Correctional Service of Canada.
As Mueller, who was working the morning Ashley asphyxiated herself in her segregation cell, put it this week in response to a question from a juror about body-cavity searches: “We don’t ever do it. The warden can authorize it, but they need the inmate’s consent.”
And there was this other inmate, she added by way of explanation, who had sued the CSC for conducting just such a search, and won. Aaaah yes. Enter one Tracy Curry (nee Pegg), who in 1994, after celebrating her birthday with her granny, suffocated her with a pillow.
Curry pleaded guilty to seconddegree murder, and was sentenced to life in prison with no chance of parole for 10 years.
But in 2003, in preparation for her upcoming release, she was allowed to leave Grand Valley Institution for Women in Kitchener, Ont., — the very prison where Ashley died — on an unescorted pass.
Upon her return three days later, the prison’s drug-detecting dog, Skipper, indicated he had detected the presence of illegal drugs.
Curry was strip-searched — no drugs were found — but in an effort to prove her innocence, she signed a consent form authorizing a body-cavity search.
It was carried out at a Kitchener hospital by a doctor. Again, it turned up no evidence she had concealed drugs on her person, though the dog handler later showed the clothes Curry had been wearing to the trusty Skip- per, and the clothes did indicate the presence of drugs.
To put it plainly, on her wee sojourn, it appeared that Curry may have used drugs or hung out with those who did — surely neither desirable in an inmate who was about to be released — but had had the wits not to bring any back with her.
In any case, in 2005, Curry sued the CSC for $100,000, claiming she’d consented to the search only under duress (she said guards told her if she agreed to the search, she wouldn’t be “dry-called” and forced to defecate into a container so her excrement could be tested) and without a lawyer’s advice, and that she’d suffered terrible trauma.
The matter was heard in the Federal Court of Canada in the late fall that year, and the following January, Justice Michel Beaudry released one of those decisions that rings so nobly in the abstract and lands with a dreadful thud in the real world.
He quoted from then Justice Louise Arbour’s 1995 inquiry into the shackling and strip-searching of inmates at the Prison for Women in Kingston, Ont. (Of course he did; the Arbour report is considered the last word on female corrections.) A body-cavity search, Justice Beaudry quoted Arbour, “is the most intrusive form of searching a person, short of surgical intervention.” Consent must be “informed, free and voluntary.”
The judge believed Curry over the correctional officer, who testified that it was the inmate who had insisted on the searches to prove her innocence. He found that though Curry had had preexisting psychiatric issues, the search had aggravated her trauma and “caused considerable harm.” He ordered damages of $10,000 and costs of $3,500.
The decision was hailed as a great, precedent-setting case, and it appears to have been just that.
In the intervening years, as the Smith inquest has learned, that simple decision has come to so terrify wardens at Canada’s women’s prisons that body-cavity searches are rarely done — not that they can be done often or easily anyway, since the inmate must agree.
But from the evidence the jurors have heard — albeit mostly of a fleeting nature thus far — even if there was an inmate who cheerfully consented, some wardens still wouldn’t order a cavity search.
To judge by their questions — at coroner’s inquests, jurors can ask questions, and this group of five has been smart and dogged about it — the jurors are mystified by the fact that as of Sept. 20, 2007, everyone at Grand Valley and their dog knew that Ashley Smith had pieces of glass secreted on or in her body, that she used them to cut ligatures from her security gown, and that with terrifying regularity she was tying these ligatures tightly around her neck and choking herself out.
And yet, really, no one did bugger all about it.
Except for the day she got the glass (by breaking a TV set) and had a large piece, the shards of glass were deemed “unauthorized,” not “contraband,” which meant guards couldn’t go into her cell and search for them. Nor could they search Ashley, in a pat-down or strip search, unless she was believed to have “contraband” on her, and the glass was deemed unauthorized.
What they could do was “sit on Ashley” — that is, perch outside her cell and try to monitor her through the window or meal slot — and go into the cell once she had the thing on her neck and was in distress. And then, in Ashley’s second stay at Grand Valley, that ability to rush in and save her was taken from the guards.
They were crippled, reduced to watching and listening as the 19-year-old cut her gown to ribbons with her glass and tied up. It was a classic Pyrrhic victory: To borrow from the ancient Greek himself, another such victory over common sense, and we are done.