Weatherall v. Canada (Attorney General) [1993] 2 S.C.R. 872: Constitutionality of frisk searching and patrolling of cell ranges conducted in male prisons by female guards.

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.

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.

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